State v. Gonzalez-Sandoval

• Decision Date: 21 December 2018
• Docket Number: No. 114,894,114,894
• Citation: 431 P.3d 850
• Parties: STATE of Kansas, Appellee, v. Jose Alberto GONZALEZ-SANDOVAL, Appellant.
• Court: Kansas Supreme Court

431 P.3d 850

STATE of Kansas, Appellee,

v.Jose Alberto GONZALEZ-SANDOVAL, Appellant.

No. 114,894

Supreme Court of Kansas.

Opinion filed December 21, 2018.

Christopher S. O'Hara, of O'Hara & O'Hara LLC, of Wichita, argued the cause and was on the brief for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by Luckert, J.:

A jury convicted Jose Alberto Gonzalez-Sandoval of aggravated indecent liberties with a child. He appealed to the Court of Appeals, raising four issues. A majority of the Court of Appeals panel found one argument meritorious. It held the trial court abused its discretion in not granting Gonzalez-Sandoval a new trial because of the State's exercise of a peremptory strike that removed an individual with a Spanish surname from the jury panel. See State v. Gonzalez-Sandoval , 53 Kan. App. 2d 536, 561-65, 390 P.3d 84 (2017).

Generally, each party may use peremptory strikes—also called peremptory challenges—to reject a certain number of potential jurors without stating a reason. But if another party objects to the peremptory strike under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the district court must follow a specified procedure and allow the peremptory strike only after determining purposeful discrimination did not motivate the strike.

Gonzalez-Sandoval objected to the State using a peremptory strike to remove an individual with a Spanish surname from the pool of potential jurors. The State responded, in part, by stating the prospective juror had not been candid when asked during the jury selection process about having been a witness or having been interviewed by law enforcement. The district court determined the State had a race-neutral reason for striking the potential juror. Later, the State's prosecutors advised the district court the juror had not been a witness or been involved in the investigation they mentioned. They explained how they had made the mistake, and the district court found that the prosecutors had honestly believed the reasons they gave for exercising the peremptory strike. Because one of the State's reasons was race-neutral, the district court denied Gonzalez-Sandoval's renewed objection. And after the verdict, the district court denied Gonzalez-Sandoval's request for a new trial in which he alleged the State had discriminated during jury selection.

On appeal, a majority of the Court of Appeals panel determined the circumstances showed the peremptory strike was not race-neutral. The majority thus concluded the district court should have granted Gonzalez-Sandoval a new trial. See Gonzalez-Sandoval , 53 Kan. App. 2d at 559-71, 390 P.3d 84.

The State timely sought this court's review. Gonzalez-Sandoval did not cross-petition to ask for our review of the Court of Appeals' adverse rulings on his remaining issues. Thus, the only issue before us is whether the trial court abused its discretion in denying Gonzalez-Sandoval's Batson objection. Gonzalez-Sandoval does not ask us to go outside the Batson framework.

We reverse the Court of Appeals and affirm the trial court. The outcome of this appeal hinges on the trial court's findings that (1) the State honestly believed the factual basis it first offered as the reason for its strike and (2) the reason was not a pretext. These findings relate to questions of credibility, which this court does not reweigh. The Court of Appeals suggested reasons, which, if established, might suggest pretext. But Gonzalez-Sandoval did not make those arguments and has not met his burden of establishing the State exercised its peremptory strikes based on purposeful racial discrimination. Thus, he has failed to establish that the trial court abused its discretion in denying his motion for new trial.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts of this case were fully set forth in the Court of Appeals opinion. See Gonzalez-Sandoval , 53 Kan. App. 2d at 537-54, 390 P.3d 84. For purposes of this court's review, the relevant facts relate only to the State's peremptory strike of a minority prospective juror.

To put the disputed strike in context, three individuals in the group called for jury duty and assigned to Gonzalez-Sandoval's trial—a group called the venire—had Spanish surnames. The State sought to or did exercise either a challenge for cause or a peremptory strike of all three.

One of the three was dismissed for cause because she revealed she could not be fair and impartial in considering a case involving indecent liberties with a child because of her experience as a victim of a sex crime. Gonzalez-Sandoval did not object to this challenge and does not raise it as an issue on appeal.

Likewise, on appeal, he does not argue the trial court erred in handling the State's peremptory strike to a second potential juror because the trial court ruled the State could not exercise its challenge. This potential juror had a hyphenated surname, only the last portion of which sounded Spanish. When Gonzalez-Sandoval objected to the strike based on Batson , the prosecutor responded that she was not sure the potential juror was a member of an ethnic or a racial minority. The trial court ruled it would consider anyone with a Spanish-sounding surname to be a member of a minority class. The State then explained that the potential juror "didn't respond very much to any of the questions" and "it just sometimes didn't seem that she was engaged in the process." The trial court found: "[W]e don't know or have any indication ... that she would have had any responses." The trial court thus determined the State could not exercise the peremptory strike to remove the juror.

The opposite outcome resulted from the State's peremptory strike to the third juror with a Spanish-sounding surname, who we will call T.R. The prosecutor had asked T.R. some specific questions. And T.R. had responded. But the State would later assert T.R. did not respond to a different question asked of the entire group of potential jurors.

Specifically, the State first asked if any of the group had "been a witness, such as [being] questioned during an investigation or [having] to appear in court as a witness on a sex crime case?" No one responded, and the State does not suggest that T.R. should have responded to that question. The State then asked, "Has anybody been a witness, just in any kind of case where you had to answer questions to a law enforcement officer?" Five individuals responded. Two merely said, "Yes." A third revealed the nature of the case—vandalism. A fourth said he testified in a criminal case, and the fifth said, "I've answered questions for an investigation." T.R. did not respond. T.R.'s failure to answer this question and to reveal she had been a witness or had been questioned during an investigation led to the State exercising one of its peremptory challenges to strike T.R.

When Gonzalez-Sandoval's attorney objected based on Batson , the prosecutor responded:

"As far as Juror [T.R.], Your Honor, the State put questions to the jury about whether they had been a witness in a case or whether they had been questioned by the police involved in any way. [T.R.] was a witness in Arzate, an endorsed—we believe she was an endorsed witness in the Arzate case and had questions asked of her. We also have her in an investigation about her son where she was questioned some in her—her son-in-law, I'm sorry Judge, about the use of her own personal cell phone. And so we have knowledge of her, but she did not respond to our questions in regards to whether she'd been questioned before or a potential witness, either answering questions of law enforcement. Also, she avoided a lot of eye contact, Your Honor. Noticing that she was looking away a lot of times, especially in questions that I felt perhaps should have elicited a response, and both of the times that she was a witness—or questioned about being involved in allegations."

Defense counsel replied:

"I don't think that looking away is a good enough reason to strike someone of the same culture or ethnic heritage of the defendant. I don't know what the Arzate case is or what that involves, but it doesn't sound like she's done anything except maybe not being as cooperative as the State had hoped in an investigation. It has nothing to do with this. I don't think it qualifies as legitimate reasons for the Batson decision."

The trial court denied Gonzalez-Sandoval's Batson objection. It first found "that based upon the surnames that [T.R.] does appear to be of the same ethnicity as the defendant." Next the trial court determined the "principal challenge" was that the potential juror did not disclose information in response to direct questions, "one of those questions being whether she had been questioned or involved with prior investigations or other investigations." The trial court specifically found this reason was race-neutral. On the other hand, the trial court stated it was "not sure that, standing alone, the question of whether a potential juror avoids eye contact would be a basis—a racially-neutral basis." But the court returned to the principal reason for the strike reiterating that "the indication that the witness was not being truthful in her response, in my opinion, or at least candid in her response would, in my opinion, be a racially-neutral response. And so, I'll therefore allow the peremptory challenge over the defense's objection."

Gonzalez-Sandoval made no other Batson objections. The parties completed jury selection, and the court held a lunch recess. After the recess, the prosecutor informed the trial court that the State had learned T.R. had not been involved in the Arzate case. The prosecutor told the judge she had misread her notes from the prosecutor's investigator and a different individual with the...