State v. Mitchell

• Decision Date: 08 April 2011
• Docket Number: No. 101,611.,101,611.
• Citation: 45 Kan.App.2d 592,252 P.3d 586
• Parties: STATE of Kansas, Appellee,v.Leon MITCHELL, III, Appellant.
• Court: Kansas Court of Appeals

45 Kan.App.2d 592

252 P.3d 586

STATE of Kansas, Appellee,

v.Leon MITCHELL, III, Appellant.

No. 101,611.

Court of Appeals of Kansas.

April 8, 2011.

[252 P.3d 588 , 45 Kan.App.2d 592]

Syllabus by the Court

1. Under K.S.A. 22–3423(1)(c), a district court may order a mistrial at any time if prejudicial conduct, inside or outside the courtroom, makes it impossible to proceed without injustice to either party. Juror misconduct will not be a ground for mistrial, however, unless the party claiming error shows that such error substantially prejudiced his or her rights.

2. With regard to unauthorized juror communication, whether electronic or otherwise, it is the usual practice to question the juror involved in complaints alleging misconduct, but a trial court is within its discretion to deny a mistrial where the complaining party fails to request an interview of the juror or otherwise meet his or her burden of proving juror misconduct.

3. The best practice is for trial courts to prohibit access to mobile electronic communication devices by jurors during jury deliberation.

4. Under the third step in analyzing a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the district judge determines the ultimate question—whether the defendant has carried his or her burden of proving purposeful discrimination. The decision on this step hinges on credibility determinations and is reviewed for abuse of discretion.

5. To be valid under Batson, the prosecutor's explanation for a peremptory strike need not rise to the level justifying exercise of a challenge for cause. The purpose of a peremptory challenge is to strike prospective jurors not subject to challenge for cause but who are believed to be inclined against a party's interests.

6. Unless discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral.

7. Tone of voice is a matter which the trial court may take into consideration in determining whether the prosecutor has a valid and neutral reason for striking the juror.

8. One factor to consider in determining whether the State's peremptory challenges are discriminatory is the presence of other members of the same minority on the jury and the failure of the State to remove such members when given the opportunity.

9. Instructing the jury that “another trial would be a burden on both sides” as contained in outdated PIK Crim.3d 68.12 (2004 Supp.) is error. Under the clearly erroneous standard of review, however, the error is not reversible when the instruction is given before jury deliberations began.

10. K.S.A. 21–4721(c)(1) precludes our jurisdiction to review a presumptive sentence. Kansas appellate courts have held that most constitutional challenges to a presumptive sentence may not be considered in a direct appeal.

11. An appellate court may review a claim that the sentencing court erroneously included recognition of a prior conviction notwithstanding the defendant's failure to object to his or her criminal history score.

Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant.Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, for appellee.Before GREENE, C.J., BUSER and ATCHESON, JJ.GREENE, C.J.

Leon Mitchell, III, appeals his convictions and sentences for aggravated burglary and attempted aggravated robbery, arguing that the district court abused its discretion in denying his motion for mistrial due to juror misconduct, erred in denying his Batson challenge, erred in giving the jury an Allen-type instruction, and violated his due process rights at sentencing by conducting independent online research. Mitchell also argues cumulative error. Mitchell finally argues that the district court violated his Sixth and Fourteenth Amendment rights by enhancing his sentences without requiring either the aggravating factors or his criminal history score to be proven to a jury beyond a reasonable doubt.

Factual and Procedural Background

After Mitchell came to Wanda Markham's home looking for her boyfriend, Andre Leon Williams, Mitchell returned the same day while Markham was on the phone with Williams. Markham testified that she heard the screen door open and looked around and saw Mitchell in the house. Markham screamed at Mitchell to get out of her house. Mitchell pulled a gun out of a white Wal–Mart sack, cocked it, and said he was going to “merk” Markham and her daughter, Loni. Loni started crying and screaming and attempted to leave the house through the back door when she saw the gun. Mitchell pointed the gun at Loni and told Markham to tell her daughter to “shut up and get back in here or I'm gonna merk her.” Markham told Loni to go into Markham's mother's room, close the door, and lock it.

According to Markham, Mitchell then told her that he was there to get drugs that Williams had stolen from Mitchell's cousin, and he demanded money as well. Mitchell told her that he would kill her if she did not give him the drugs and the money. Mitchell became nervous and left the house after Williams' mother arrived and called 911.

Mitchell was charged with aggravated burglary and attempted aggravated robbery. He was found guilty as charged by a jury and sentenced to 136 months' imprisonment for the aggravated burglary and 34 months for the attempted aggravated robbery, with the sentences to run consecutively.

Mitchell appeals both his convictions and his sentences.

Did the District Court Abuse Its Discretion in Denying Mitchell's Motion for Mistrial Due to Juror Misconduct?

At the start of the second day of trial, outside of the presence of the jury, Mitchell's counsel asked for a mistrial based on juror misconduct because he was “led to believe” that juror number one was text messaging during the trial. The court noted that “led to believe is something different from any observation of” the juror actually text messaging and asked defense counsel if he had any direct evidence that the juror was texting. Defense counsel stated that he observed the juror slumped down in her seat below the rail in front of the jury box, but that he did not know what she was doing. He said he moved for a mistrial “grudgingly, because [he] favored this jury” and that he was “satisfied with the other jurors,” who had “been attentive and participated fully in the case.”

The prosecutor stated that she did not notice the juror texting, but that she did not look at the jury during trial. She added, “So I don't know if you want to bring her out here and ask her or what.” The judge noted that his bailiff had advised him that juror number one was texting during jury selection, and that he had noticed the juror's hands were below the rail and that her focus was down towards her lap during the first day of the trial, although the judge could not see if the juror was text messaging.

The court denied the motion for mistrial but admonished all the jurors collectively to make sure their cell phones were turned off, not just set to vibrate. On appeal, Mitchell argues that the district court should have granted his motion for mistrial.

Applicable standards of review have been stated by our Supreme Court. “Communication between jurors and third parties is broadly termed juror misconduct.” State v. Overton, 279 Kan. 547, 557, 112 P.3d 244 (2005). Under K.S.A. 22–3423(1)(c), a district court may order a mistrial at any time if prejudicial conduct, inside or outside the courtroom, makes it impossible to proceed without injustice to either party. Juror misconduct will not be a ground for mistrial, however, unless the party claiming error shows that such error substantially prejudiced his or her rights. State v. Wimbley, 271 Kan. 843, 852, 26 P.3d 657 (2001). A motion for mistrial is reviewed under an abuse of discretion standard, and the party alleging the abuse bears the burden of proving that his or her rights to a fair trial were prejudiced. State v. McReynolds, 288 Kan. 318, 329, 202 P.3d 658 (2009).

“A high degree of appellate deference is allowed a trial judge's exercise of discretion in assessing the texture and feel of the trial, the credibility of witnesses, and the perceived impact of an allegedly prejudicial event. In these circumstances, appellate decisions often recognize a presumption of validity in the exercise of discretion because of the superior vantage point of the trial judge. The judge's decision will be affirmed even though the appellate tribunal might otherwise be inclined to take a precisely opposite view of the matter.” Saucedo v. Winger, 252 Kan. 718, 731, 850 P.2d 908 (1993).

With regard to unauthorized juror communication, whether electronic or otherwise, our appellate courts have held that “[i]t is the usual practice to question the juror involved in complaints alleging misconduct,” but the trial court was within its discretion to deny a mistrial where the complaining party failed to request an interview of the juror or otherwise meet his or her burden of proving juror misconduct. State v. Macomber, 244 Kan. 396, 407–08, 769 P.2d 621, cert. denied 493 U.S. 842, 110 S.Ct. 130, 107 L.Ed.2d 90 (1989), overruled on other grounds by State v. Rinck, 260 Kan. 634, 923 P.2d 67 (1996). Our Supreme Court has also held that even where the trial court denies such a request, prejudice will not be presumed where the complaining party failed to pursue his or her claim by utilizing the posttrial procedure to recall the juror or jurors and question them pursuant to K.S.A. 60–441. State v. Fulton, 269 Kan. 835, 844, 9 P.3d 18 (2000).

Here, Mitchell failed to request any inquiry into the alleged misconduct and failed to utilize any posttrial procedure to investigate the matter. Although it may have been the better practice for the trial court to have made the inquiries, we are unable to conclude that no reasonable person would take the view adopted by the district court. See ...