State v. Peterson
| Decision Date | 27 August 2021 |
| Docket Number | 116,931 |
| Court | Kansas Court of Appeals |
| Parties | STATE OF KANSAS, Appellee, v. CHRISTIAN PETERSON, Appellant. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Wyandotte District Court; MICHAEL GROSKO and AARON T ROBERTS, judges.
Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
Daniel J. Obermeier, assistant district attorney, Jennifer S. Tatum assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., MALONE and HILL, JJ.
Defendant Christian Peterson has appealed the verdict of a jury sitting in Wyandotte County District Court finding him guilty of aggravated indecent liberties with a child for sexually abusing a 10-year-old girl he had agreed to babysit. Peterson asserts an array of errors infected jury selection, the evidence admitted at trial, and the prosecutor's closing argument. He also contends his trial lawyer was constitutionally ineffective. We find nothing in those claims that deprived Peterson of a fair trial and, therefore, affirm his conviction. See State v. Walker, 308 Kan. 409, 426, 421 P.3d 700 (2018) ().
Peterson also points out the district court improperly imposed lifetime postrelease supervision on him as part of his sentence of life in prison with parole eligibility after serving 25 years. In that respect, Peterson is correct, so we vacate the imposition of postrelease supervision and otherwise affirm the sentence. See State v. Fraire, 312 Kan. 786, 797, 481 P.3d 129 (2021) (). We do not discuss this sentencing issue further.
Given the issues on appeal, we offer an overview of the basic facts and the progression of the case at the outset. We augment this general review with additions tailored to the issues Peterson has raised on appeal.
D.Y. and D.W. were, respectively, father and mother to three children: a daughter S.Y., who is the victim in this case, and her two younger brothers. On a Friday in late May 2015, D.W. was having difficulty finding a sitter for the children that evening so she and D.Y. could go to a graduation party for one of his nieces. Peterson, an acquittance of D.Y., had stopped by that afternoon and offered to take care of the children so the couple could attend the graduation party. They accepted his offer.
The core allegation is this: Shortly after D.Y. and D.W. left for the party, Peterson sat down on the sofa next to S.Y. and ran his hand up her leg and then reached beneath her underwear to touch her vaginal area. Peterson was then 21 years old, and S.Y. was 10 years old. Alarmed and upset, S.Y. retreated to a bedroom and called her maternal grandmother. Peterson followed her, took away the cellphone, and pleaded with S.Y. not to tell what happened and offered her a dollar to keep quiet. S.Y. took the phone back and went to her own bedroom where she again called her grandmother to report what Peterson had done.
S.Y.'s grandmother then called another family member who, in turn, relayed a message to yet another relative at the graduation party. When D.Y. and D.W. arrived at the party, they were told they needed to go home immediately because Peterson had tried to rape S.Y. Upon returning home, they encountered a distraught S.Y. She told them that Peterson had touched her vaginal area-a sexual assault she characterized as an attempt to rape her.
S.Y. serially described what Peterson did to her to her parents, other relatives, law enforcement officers, and in a videotaped interview with a forensic social worker trained to question children reported to be sexual assault victims. S.Y. also underwent a sexual assault examination at a local hospital to document and collect physical evidence. Some details surrounding the incident varied between the witnesses, and some witnesses offered inconsistent recollections in successive accounts of what they knew. Many of those discrepancies were aired in front of the jury during the trial.
For example, Stanley Morgan, D.Y.'s cousin, was at the house with Peterson, but he may (or may not) have left before D.Y. and D.W. went to the party. Nobody, however, suggests he was present when Peterson assaulted S.Y. We return to Morgan in considering Peterson's claim that his trial lawyer represented him ineffectively. Similarly, everyone agrees S.Y.'s brothers were asleep when the assault took place. But there are varying versions of what S.Y. did before she sat down on the sofa. In her own accounts, S.Y. may have told some people Peterson wore only a shirt and was naked from the waist down when he climbed over the back of the sofa to sit next to her. During the trial, she testified he had on underwear.
Peterson did not testify during the trial. He called only Shantell Maxwell, who was his girlfriend in May 2015. Her testimony did not help Peterson, and she, too, figures in his ineffective assistance claim.
The jury heard evidence in the case over two days in January 2016 and convicted Peterson of one count of aggravated indecent liberties with a child, an off-grid felony violation of K.S.A. 2014 Supp. 21-5506(b)(3). The jury found Peterson not guilty of a second charge of lewd and lascivious behavior in violation of K.S.A. 2014 Supp. 21-5513(a)(2), criminalizing "exposing a sex organ" in the presence of a nonconsenting person for sexual satisfaction. At a later hearing, the district court denied Peterson's motion for a new trial and sentenced him to life in prison with parole eligibility after serving 25 years. See K.S.A. 2014 Supp. 21-5506(b)(3); K.S.A. 2014 Supp. 21-6627(a)(1)(C). Peterson timely appealed.
As we have indicated, Peterson has asserted numerous and varied issues challenging his conviction. We take them up sequentially, adding necessary facts as we go.
During the jury selection process, Peterson's trial lawyer asserted what is known as a Batson challenge to the prosecutor's use of peremptory challenges to remove five Black persons from the pool of potential jurors. Peterson is also Black. The district court summarily rejected the claim finding Peterson had failed to make a prima facie showing of discrimination warranting further judicial inquiry. The matter was disposed of in a terse exchange covering less than a page of the trial transcript.
When we first examined this case and the Batson issue, we were left to extrapolate a great deal from the short, inexact record. We had no direct information on the composition of the jury, how the alternate juror was chosen, and the precise manner in which the lawyers exercised their allotted peremptory strikes. Based on what we had, we concluded Peterson had made a sufficient showing to go forward with a Batson claim necessitating additional judicial examination of the circumstances. We, therefore, issued an opinion remanding the case for a full hearing on the Batson challenge. See State v. Peterson No. 116, 931, 2018 WL 4840468 (Kan. App. 2018) (unpublished opinion), rev. denied 309 Kan. 1352 (2019) (Peterson I). We retained jurisdiction and did not consider Peterson's other issues.
After the mandate issued in Peterson I, the district court appointed a new lawyer to represent Peterson in the Batson hearing, since his original trial lawyer had a conflict because of the claim of ineffective assistance of counsel lodged against him. The district court conducted an evidentiary hearing in November 2019 at which the prosecutor in Peterson's trial was the only witness. Through that hearing, the record has been augmented with the prosecutor's notes made before and during the jury selection process, the juror questionnaires, and detailed information about the jury's composition and how the peremptory strikes were exercised. The district court judge conducting the Batson hearing on remand did not preside over the Peterson trial. The issue to be decided in the Batson hearing was wholly unconnected to the particular charges or evidence against Peterson, so we perceive no problem in that regard. The parties have suggested none.
The district court denied Peterson's Batson challenge. And Peterson has renewed his appeal of that point based on the hearing record. In our present review, we presume a reader's familiarity with the detailed discussion in Peterson I of the legal principles governing Batson claims and the Kansas Supreme Court's more recent enunciation and application of those principles in State v. Gonzalez, 311 Kan. 281, 301-04, 460 P.3d 348 (2020). We summarize them here.
When a defendant asserts a Batson challenge, the essential question to be answered is whether the State has purposefully exercised peremptory challenges to strike potential jurors because of their race. In Batson, the Court recognized twin equal protection rights in the Fourteenth Amendment to the United States Constitution supporting a prohibition on the State's use of racially based peremptory challenges or juror strikes. First, defendants are denied a constitutional equal protection right if the State seeks to try them before juries "from which members of [their] race have been purposefully excluded." Batson v. Kentucky, 476 U.S. 79, 85, 106 S.Ct. 1712 90 L.Ed.2d 69 (1986). Just as important, however, citizens called for jury duty have a constitutional right to serve if they are otherwise qualified. The State violates that right when a prosecutor eliminates them during the jury selection process because of their race. 476 U.S. at 87. Exclusion of citizens from jury service based on race reflects "a primary...
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