State v. Walston, 69696

• Decision Date: 09 December 1994
• Docket Number: No. 69696,69696
• Citation: 256 Kan. 372,886 P.2d 349
• Parties: STATE of Kansas, Appellee, v. Arthur L. WALSTON, Appellant.
• Court: Kansas Supreme Court

Page 349

886 P.2d 349

256 Kan. 372

STATE of Kansas, Appellee, v.Arthur L. WALSTON, Appellant.

No. 69696.

Supreme Court of Kansas.

Dec. 9, 1994.

Syllabus by the Court

1.The appellate standard of review applicable to a trial court's ruling that the State did or did not act with discriminatory purpose in exercising a peremptory challenge under Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), is deferential to the trial court, regardless of whether the standard is phrased as "abuse of discretion" or "clearly erroneous."However, the appropriate description of the deferential standard of review to be applied is abuse of discretion.

2.Judicial discretion is abused only when exercised in an arbitrary, fanciful, or unreasonable manner, or in other words, when no reasonable person would take the view adopted by the trial court.

3.The Batson analysis of peremptory challenges avoids placing emphasis on any one factor as determinative.The primary decision on the question whether the State has acted with an unlawful purpose is placed by Batson in the hands of the trial judge.The trial judge can objectively compare numbers or other facts and subjectively evaluate the credibility of the State's counsel in explaining the reasons for each challenged strike of a prospective juror.

4.Whether the State's reason for exercising a peremptory challenge of an African-American juror is legitimate, or whether it is merely a pretext for a true discriminatory motive of seeking an all-white jury, should be evaluated based on all of the available direct and circumstantial evidence of intent.The similarity of white jurors who were not challenged is one factor that may be included in the evaluation, if it is brought to the trial court's attention.Under the Batson framework, the trial court is given primary responsibility for making that evaluation.

5.We disapprove of any language in State v. Belnavis, 246 Kan. 309, 312-13, 787 P.2d 1172(1990), that suggests the comparability of challenged and unchallenged jurors is evidence entitled to conclusive weight in determining a Batson violation.

6.The defendant carries the ultimate burden of persuasion on whether the State engaged in intentional discrimination in the exercise of peremptory challenges.

Keith C. Sevedge, Kansas City, argued the cause, and Carl E. Cornwell, of Cornwell & Edmonds, Overland Park, was with him on the brief, for appellant.

Brian L. Leininger, Asst. Dist. Atty., argued the cause, and Nick A. Tomasic, Dist. Atty., Diane G. Lucas, Asst. Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the brief, for appellee.

SIX, Justice:

This is a peremptory challenge jury selection case, alleging the State's strikes were not "race neutral."Arthur Walston was convicted of involuntary manslaughter in the shooting death of a 12-year-old girl.He alleges that the State's use of peremptory challenges to strike African-American panelists from the venire was motivated by race, violating the 14th Amendment Equal Protection Clause and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).

The Court of Appeals, in an unpublished opinion filed May 6, 1994, affirmed the district court's finding that the State's race-neutral justifications for the strikes were satisfactory.We granted Walston's petition for review.SeeRule 8.03(1993 Kan.Ct.R.Annot. 44.)

The issue is whether the district court abused its discretion in finding the State's explanations for each of its four strikes to be race-neutral and therefore permissible.The third and final step of the Batson analysis is the only step at issue in the instant appeal.We affirm the Court of Appeals and the district court.

The Standard of Review

The appellate standard of review applicable to a trial court's ruling that the State did or did not act with discriminatory purpose in exercising a peremptory challenge under Batson is deferential to the trial court, regardless of whether the standard is phrased as "abuse of discretion" or "clearly erroneous."See, e.g., State v. Kingsley, 252 Kan. 761, 772, 851 P.2d 370(1993)(appellate review of a trial court's acceptance of the State's reasons as racially neutral for removal of juror "is on the basis of abuse of discretion").We endorse abuse of discretion as the phrase to describe the deferential standard to be applied.Judicial discretion is abused only when exercised in an arbitrary, fanciful, or unreasonable manner, or in other words, when no reasonable person would take the view adopted by the trial court.State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139(1991).

Facts

Because jury selection is the only issue on review, the facts underlying Walston's conviction are of minor significance.However, the facts provide background for the stated justifications for striking certain African-American panelists from the venire.The Court of Appeals summarized:

"On the morning of March 5, 1992, defendant reported to the Kansas City, Kansas police that his car had been stolen from his mother's residence.After reporting the theft to the police, defendant began looking for his car.He contacted several friends and subsequently located his car parked in front of a house.He returned to his mother's house and notified the police that he had located his car.

"After defendant returned to where he had last seen his car, he discovered it was gone.He, however, later spotted his car going north on 34th Street in Kansas City, Kansas.He gave chase, attempting to stop the driver by flagging the car down; however, the driver failed to stop and appeared to speed up.Defendant then stopped his car, took out a .38 caliber handgun, and fired a shot at the car.The bullet shattered the rear window, and struck and killed a 12-year-old passenger.

"In a panic, defendant returned to his mother's house, concealed the weapon, and returned to the scene of the shooting.Upon his return, he was arrested by the police.Defendant was charged, tried before a jury, and found guilty of involuntary manslaughter."

Walston is African-American.At the conclusion of voir dire, the State used four of its six peremptory challenges to strike African-Americans from the venire.Walston's attorney objected on the basis the challenges were racially motivated.

Walston's objection was discussed in chambers.The trial judge considered whether Walston had satisfied the first part of the Batson test, i.e., whether he had established a prima facie case of discriminatory intent.The State argued that there was no evidence of systematic discrimination.The State suggested that it had no motive to exclude African-Americans because the victim and "half" of the State's witnesses were of that race.The trial judge found an inference of discriminatory intent.The judge noted that there were, in his estimation, 7 African-Americans out of 24 venirepersons before the State's peremptory strikes.Consequently, the trial judge requested that the State provide race-neutral reasons for its strikes.

Explaining its peremptory challenges of the four African-American venirepersons, the State said it struck:

V.T. "because she said [in voir dire] that she had an adult son who had been convicted of drug offenses and she thought he had been treated unfairly";

J.T. because he and his older brother knew "one of the Reverends who apparently the defense intends to call as a character witness";

S.E. because (1)she was married and had no children, (2) her body language suggested a sympathy for the defense (according to the prosecutor, S.E. "woke up when [defense counsel] was talking," was "nodding her head continually through [defense counsel's] voir dire, leaning forward," and "seemed to pay careful attention to what [defense counsel] was saying"), and (3)she may have lacked experience driving a vehicle; and

C.R. because (1) her body language, like S.E.'s, suggested a sympathy for the defense (the prosecutor described C.R.'s and S.E.'s body language concurrently in saying that they"woke up when [defense counsel] was talking" and "seemed to pay careful attention to what [defense counsel] was saying,") and (2)she had no children.

The record of the voir dire proceedings supports each of the State's articulated reasons for striking the four jurors in question, with two exceptions.First, the State's body-language justifications for striking S.E. and C.R. are not capable of being reviewed.Prospective jurors' nods, leans, winks, smiles, or scowls do not show up on the record, unless counsel expressly makes a note of them.For this reason, we have held that while body language may be a "valid and neutral reason" for striking a juror, a trial judge "must be particularly sensitive when body language, alone, is advanced as a reason for striking a juror."State v. Hood, 245 Kan. 367, 374, 780 P.2d 160(1989).The State, in the case at bar, did not rely exclusively on body-language justifications for any challenged juror, nor did it assert body-language justifications for every stricken African-American.Either approach by the State might cause a trial court to view body-language justifications with heightened suspicion.

Second, the State's driving-related justification for striking S.E. is questionable based on the transcript of the voir dire proceedings.The State based its uncertainty about S.E.'s driving experience on the following exchange:

"[Prosecutor]: How many people drive on I-635?

(Several responses)

"[Prosecutor]: Maybe I should say how many people have never driven on I-635?Okay, only one person.Is it Ms.--

"[S.E.]: [S.E.]

"[Prosecutor]:--[S.E.] You've never been on I-635?

"[S.E.]: I don't know.

"[Prosecutor]: Have your ever--have you been in that area ever?

"[S.E.]: No.

"[Prosecutor]: So you've been in a car.Are you familiar with I-635, then?

"[S.E.]: Uh-huh."

This exchange does not establish that S.E. lacks driving experience; it only proves she was...