State v. Hood

• Citation: 744 P.2d 816,242 Kan. 115
• Decision Date: 30 October 1987
• Docket Number: No. 60175,60175
• Parties: STATE of Kansas, Appellee, v. Kenneth W. HOOD, Appellant.
• Court: United States State Supreme Court of Kansas

Page 816

744 P.2d 816

242 Kan. 115

STATE of Kansas, Appellee, v. Kenneth W. HOOD, Appellant.

No. 60175.

Supreme Court of Kansas.

Oct. 30, 1987.

Syllabus by the Court

1. To establish a prima facie case of purposeful discrimination, the defendant needs to show only that he or she is a member of a cognizable minority group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of that group. Defendant is entitled to rely upon the fact that peremptory challenges constitute a jury selection process that permits those to discriminate who are of a mind to discriminate. The defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race or group. Following Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1717, 90 L.Ed.2d 69 (1986).

2. Once the defendant has made a prima facie showing of purposeful discrimination, the burden then shifts to the State to come forward with a neutral explanation for peremptorily challenging jurors of a minority defendant's race or group.

3. A prosecutor who exercises peremptory challenges to remove members of a minority defendant's race or group from the trial jury must now be prepared to come forward and state on the record a neutral explanation of such challenges.

4. The accused, and not his or her attorney, has the right to make the decision whether to assent to trial by less than a twelve-person jury. K.S.A. 22-3403(2).

Jessica R. Kunen, Deputy Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on the briefs, for appellant.

Mona Furst, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with her on the brief, for appellee.

MILLER, Justice:

Kenneth W. Hood was charged with and was convicted by jury trial in Sedgwick County District Court of aggravated burglary, K.S.A. 21-3716; aggravated kidnapping, K.S.A. 21-3421; aggravated robbery, K.S.A. 21-3427; and rape, K.S.A. 1986 Supp. 21-3502. The trial court sustained the State's motion to invoke the Habitual Criminal Act, K.S.A. 1986 Supp. 21-4504, and imposed sentences of 10 to 40 years for aggravated burglary; life imprisonment for aggravated kidnapping; 30 years to life for aggravated robbery; and 30 years to life for rape. The sentences for aggravated kidnapping and aggravated robbery run concurrent with each other and consecutive to the sentence for aggravated burglary, and the sentence for rape runs consecutive to the sentences for aggravated kidnapping and aggravated robbery. All sentences run consecutive to the sentence from which the defendant was on parole at the time of the commission of these offenses.

Hood appeals, raising three issues: that the State exhibited purposeful racial discrimination in removing the only two black jurors by the exercise of its peremptory challenges; that the trial court erred in continuing the trial with eleven jurors, with the defendant's written consent but without the consent of his counsel, and without determining defendant's competency to waive a jury of twelve; and that the evidence was insufficient to support defendant's conviction of aggravated kidnapping. We turn first to the matter of the exercise of peremptory challenges by the State.

A review of the case and statutory law surrounding this issue will be helpful at the outset. Challenges for cause are governed by K.S.A. 22-3410. Some nine different grounds of challenge for cause are enumerated therein. Peremptory challenges, however, are not challenges for cause, but historically are challenges determined by the attorneys on each side without showing any cause. They are exercised after challenges for cause have been ruled upon and after a qualified panel has been selected. The peremptory challenges are then exercised in order to reduce the panel to the number of jurors required to try the case. The number of peremptory challenges granted to each side in a criminal prosecution is governed by K.S.A. 1986 Supp. 22-3412.

Our prior cases have held that a defendant has a right to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice. State v. Sanders, 225 Kan. 147, 149, 587 [242 Kan. 117] P.2d 893 (1978). We have also held in prior cases that a defendant does not have the right to demand that members of his race or minority group be included on the trial jury. Error would occur only if the race or group were systematically excluded from jury service. See State v. Levier, 226 Kan. 461, 466-67, 601 P.2d 1116 (1979); State v. Holloway, 219 Kan. 245, Syl. p 5, 547 P.2d 741 (1976). Also, we have previously held that the fact that the State exercised its peremptory challenges to remove the only members of the accused's race or group from the trial jury did not alone deprive the accused of a fair trial. See State v. Taylor, 225 Kan. 788, 594 P.2d 211 (1979); State v. King, 219 Kan. 508, Syl. p 2, 548 P.2d 803 (1976); State v. Holloway, 219 Kan. at 249, 547 P.2d 741.

The rule laid down in the last three cases relating to the State's exercise of peremptory challenges, however, is no longer the controlling law in that area. The United States Supreme Court enunciated a new rule in the case of Batson v Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986). Trial in the case now before us was concluded and Hood was convicted on April 24, 1986; the Batson decision was announced on April 30, 1986; Hood was sentenced by the trial court on May 9, 1986. On January 13, 1987, the United States Supreme Court announced its decision in the case of Griffith v. Kentucky, 479 U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Griffith holds that the new constitutional rule established in Batson must be applied retroactively to cases which are pending upon direct appellate review, or which were not final, at the time the new rule was established. The Court said:

"The fact that the new rule may constitute a clear break with the past has no bearing on the 'actual inequity that results' when only one of many similarly situated defendants receives the benefit of the new rule. [Citation omitted.]

"We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." 479 U.S. at ----, 107 S.Ct. at 716, 93 L.Ed.2d at 661.

Therefore, under Griffith, the rule established in Batson must be applied in this case, and in all Kansas cases which are pending on direct appeal, or which are not yet final, or which arose after April 30, 1986.

Batson, a black man (as is defendant Hood), was indicted in Kentucky and charged with second-degree burglary and receipt of stolen property. On the first day of trial, the prosecutor used his peremptory challenges to strike all four black persons on the venire, and a jury composed of only white persons was selected to try the case. Defense counsel moved to discharge the jury before it was sworn on the ground that the prosecutor's removal of the black jurors violated his client's Sixth and Fourteenth Amendment rights to a jury drawn from a cross section of the community, and his rights under the Equal Protection Clause of the Fourteenth Amendment. The trial judge ruled that the parties were entitled to use peremptory challenges to strike any juror they wished, and denied the motion. The Supreme Court of Kentucky affirmed, observing that it had recently reaffirmed its reliance on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and consequently decided not to follow California and Massachusetts cases as suggested by Batson's counsel. In Swain, the prosecutor exercised his six peremptory challenges by striking all of the six blacks from the panel, with the result that Swain, a black man, was convicted by a jury from which all members of his race had been removed. The Swain court held that:

"The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome ... by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it." 380 U.S. at 222, 85 S.Ct. at 837.

The Court went on to explain that a state may not exercise its challenges in contravention of the Equal Protection Clause, and also stated that a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system was being perverted. The Court said:

"[W]hen the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance." Swain v. Alabama, 380 U.S. at 223, 85 S.Ct. at 837.

The court in Swain concluded that the petitioner had not introduced sufficient evidence in that case to sustain his burden of proof.

In Batson, the United States Supreme Court observed that a number of lower courts, following Swain, reasoned that proof of repeated striking of blacks by the prosecution over a number of cases, and not just in the case then being considered, was necessary to establish a violation of the Equal Protection Clause. We followed that line of reasoning and quoted Swain in State v....