IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 83,716
STATE OF KANSAS,
Appellee,
v.
GENTRY E. BOLTON,
Appellant.
SYLLABUS BY THE COURT
1. A jury's second viewing of exhibits admitted into evidence is not subject to the requirements of K.S.A. 22-3420(3).
2. The standard of review for a claim of failing to instruct on lesser included crimes is whether the evidence, when viewed in the light most favorable to the defendant, supports an instruction on the lesser included crime. The instruction need not be given, however, if the evidence would not permit a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense.
3. A State's privilege to strike jurors though peremptory challenges is subject to the 14th Amendment Equal Protection Clause of the United States Constitution.
4. We conduct a three-step test in assessing whether a peremptory challenge violates the Equal Protection Clause of the United States Constitution. First, the defendant must make a prima facie showing that the prosecution has used peremptory challenges on the basis of race. Second, once such a showing has been made, the burden shifts to the prosecutor to articulate a race-neutral reason for striking the juror. Third, the trial court then decides whether the defendant has carried the burden of establishing purposeful discrimination.
Appeal from Wyandotte district court; J. DEXTER BURDETTE, judge. Opinion filed July 12, 2002. Affirmed.
Janine Cox, assistant appellate defender, argued the cause, and Craig Durham, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with her on the briefs for appellant.
Jerome A. Gorman, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J: Gentry Bolton appeals his conviction of premeditated first-degree murder and aggravated robbery. He was sentenced to a term of life (hard 25) on the murder charge and 89 months for the aggravated robbery charge. The aggravated robbery sentence was ordered to run consecutive to the life sentence. Bolton claims the trial court (1) violated his right to confrontation by allowing the jury to view a surveillance videotape in the jury room during deliberations; (2) erred in failing to instruct the jury on lesser included offenses; and (3) erred in finding the State articulated race-neutral reasons for using peremptory strikes to remove African- Americans from the jury pool.
On December 28, 1997, Shane Brees was working as a clerk at a convenience store in Kansas City, Kansas. Also working that afternoon was the shift supervisor, Robin Thebo. Thebo was doing electronic ordering, which caused to her to go back and forth from the store area to the manager's office. Brees was working the cash register.
At the time of the robbery, three customers were in the store or using telephones outside the store. Tanya Yearout entered the store, greeted Brees, and then went to the pop and candy aisles. Jim Freeman was using one of the pay telephones on the outside of the building to the right of the front doors, so he had parked near that telephone. Norma Carson was using one of the pay telephones on the outside of the building to the left of the front doors.
While using the telephone, Freeman noted a car, gray in color and driven by a young man, back up onto the curb next to him. Freeman could not see any tags on the car. Freeman assumed the car was stolen. The young man exited the gray car, left the car running, and went into the store.
Thebo exited the manager's office to relieve Brees. As she walked down an aisle toward the register island, she heard someone say, "[G]ive me all your money." Thebo knew the voice was not Brees'. She stopped and peered through the plexiglass sides of a display case to observe. Thebo saw a man on the other side of the counter pull a gun and point it at Brees. She observed the right side of the gunman's face. The gunman was a black man wearing a dark knit stocking cap and a dark-colored shirt and pants. He was clean-shaven with short hair. Thebo turned to go back to her office to call for help. As she went though her office door, she heard a shot. Thebo locked the door and called 911. After a short time, she left the office, went to the front of the store, and found Brees dying on the floor near the register. Brees was gasping for air, and his eyes were closed. The cash register was open.
Yearout also observed the confrontation between Brees and the man. As Yearout was walking toward the Sunday newspapers, she heard a customer say, "[O]h, shit." Yearout made eye contact with the man, but because she thought he was angry or very cold, she did not think there was any danger. As she reached for a Sunday newspaper, she heard the man say, "[G]ive me all your God damn money." Yearout looked up and observed the cash register drawer open and Brees' hand in the drawer. She observed Brees back up and heard the sound of money being transferred. Yearout then heard a shot and threw herself onto the floor.
Carson, who was talking on the outside telephone, heard the shot and turned to look into the store. She observed Brees fall to the floor. She watched a man walk casually out of the store, mumbling something about being right back. The man walked to the gray car backed up to the front of the store.
Freeman heard a popping sound. He then observed the man who had been driving the gray car leave the store and return to his car carrying a wad of money and a pistol.
Brees was transported to the hospital where he died as a result of a gunshot wound to the chest. The bullet had entered Brees' chest; penetrated his heart, aorta, and the boney portion of his spine; and exited the back.
Officers at the scene found a single spent .380 caliber casing in an area behind Brees. Officers were unable to locate the bullet. The bullet, which was located on January 7, 2000, by a convenience store employee, was a .380 caliber bullet. The police did not attempt to recover fingerprints because witnesses reported that the robber wore gloves into the store. There was a video camera mounted in the store. The camera had recorded the robbery. The manager gave the tape to the police, and the police reviewed the tape.
Officer Phillip Burger was dispatched later in the evening after the robbery occurred to check out a vehicle in the Sedonia Points Apartments which matched the description of the vehicle the gunman had used in the robbery of the convenience store. When Burger arrived, the headlights were in the "on" position and the battery was dead. Burger looked in the vehicle and found a black ankle holster, a right-handed black glove, and a red scarf. The car was processed for fingerprints. None of the prints found matched Bolton's. The car had been reported stolen on December 26, 1997.
During the investigation, Thebo, Yearout, and Carson were separately shown a photo line-up. Each identified Bolton as being the gunman in the robbery. Each of them also later identified Bolton at trial. Based on the line-up identifications, Kansas City, Kansas, police searched for Bolton. They enlisted the aid of the Federal Fugitive Apprehension Task Force. When police learned Bolton was calling a girl in Kansas City, a subpoena was obtained to secure telephone records from a telephone tap. On January 5, 1998, the federal task force went to a Kansas City address, found Bolton, and arrested Bolton without incident.
Bolton was tried to a jury on a second amended information charging Bolton with premeditated first-degree murder, felony murder in the alternative, and aggravated robbery. The jury found Bolton guilty of premeditated first-degree murder and aggravated robbery. Bolton appeals. Our jurisdiction is pursuant to K.S.A. 22- 3601(b)(1).
VIEWING OF SURVEILLANCE VIDEOTAPE
The surveillance videotape of the robbery was admitted at trial without objection. The tape was played to the jury in open court with the defendant present. After the jury began deliberations, it requested to once again view the surveillance tape. Outside Bolton's presence, but in the presence of his counsel and counsel for the State, the trial court requested that a VCR and television be placed in the jury deliberation room so that the jury could view the tape. Bolton's counsel did not object.
A criminal defendant has the constitutional and statutory right to be present at all critical stages of his or her trial. See K.S.A. 2001 Supp. 22-3405(1); Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057, reh. denied 398 U.S. 915 (1970). Bolton contends that the trial court committed reversible error because it did not inquire of him personally whether he waived his right to be present during the replaying of the videotape. He asserts he had a constitutional and statutory right to be present during the viewing and was prejudiced by not being present because the videotape was emotionally charged critical evidence.
Bolton's argument that the highly prejudicial nature of the videotape (a recording in real time of a murder) made the jury's repeated viewing of it unfair is not persuasive. The emotional impact of the videotape was unavoidable and undoubtedly felt by the jury at the initial viewing of the tape in open court where the defendant was present to mitigate the emotional impact in whatever manner possible. It cannot be assumed that the jury's viewing of the tape again in the jury room compounded the emotional impact, resulting in undue prejudice.
K.S.A. 22-3420(3) provides:
"After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney. "
Because the videotape was "evidence arising in the case," Bolton also contends he had a right under K.S.A. 22-3420(3) to be present when the tape was played back to the jury.
The application of K.S.A. 22-3420(3) typically arises where, after retiring for deliberations, the jury submits questions to the court regarding clarification on a point of law, see, e.g., State v. Coyote, 268 Kan. 726, 731-34, 1 P.3d 836 (2000); where the jury requests a readback of testimony, see, e.g., State v. Miller, 268 Kan. 517, 527, 997 P.2d 90 (2000); and where there have been ex parte communications between the judge and members of the jury, see, e.g., State v. Rayton, 268 Kan. 711, 717, 1 P.3d 854 (2000). This court has consistently held that K.S.A. 22-3420(3) explicitly requires that any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence unless the defendant is voluntarily absent. Coyote, 268 Kan. 726, Syl. ¶ 2. The defendant's right to be present extends to any communication between the trial court and the jury. State v. Bell, 266 Kan. 896, 920, 975 P.2d 239, cert. denied 528 U.S. 905 (1999).
Here, the videotape was an exhibit which had been admitted into evidence during the course of the trial and had been played in open court before the jury and the defendant. A videotape is distinguishable from readback testimony in that the evidence on a videotape is static and is not susceptible to inflection or interpretation by a reader; regardless of the number of times a videotape is replayed or who plays the videotape, the message conveyed on the tape is the same.
In State v. Fenton, 228 Kan. 658, 667, 620 P.2d 813 (1980), Fenton contended that the trial court erred in allowing the jury to view exhibits a second time prior to its deliberations with only the bailiff supervising the viewing. We found that once a case is submitted to the jury, the jury is ordinarily given the exhibits to take into the jury room where the jurors can examine the exhibits as many times as they desire. The Fenton court noted that the manner in which exhibits are handled at trial is within the trial court's discretion, and the exercise of that discretion will not be disturbed on appeal except in cases of abuse. Fenton demonstrated no prejudice as a result of a second viewing. 228 Kan. at 667; see also State v. Poulos & Perez, 230 Kan. 512, 514, 639 P.2d 477 (1982) (no abuse of discretion in permitting jury to listen, in the jury room, to an audiotape recording that was an admitted exhibit).
Therefore, we find a jury's second viewing of exhibits admitted into evidence is not subject to the requirements of K.S.A. 22-3420(3). Bolton was not denied his right to confrontation.
FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSES
The trial court instructed the jury to consider intentional second-degree murder as a lesser included offense of premeditated first-degree murder. Bolton had also requested the trial court instruct the jury to consider reckless second-degree murder and involuntary manslaughter as lesser included offenses of premeditated first-degree murder. The trial court refused to do so. Bolton contends that the trial court's refusal to instruct on reckless second-degree murder and involuntary manslaughter is reversible error.
The standard of review for a claim of failing to instruct on lesser included crimes is whether the evidence, when viewed in the light most favorable to the defendant, supports an instruction on the lesser included crime. See State v. Jones, 267 Kan. 627, 633, 984 P.2d 132 (1999). The instruction need not be given, however, if the evidence would not permit a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense. State v. Deavers, 252 Kan. 149, 151, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993).
Although Bolton's defense was misidentification, he argues that the jury could have rejected that defense and believed he was guilty of the convenience store robbery and the killing of Brees but could have found that the killing of Brees was unintentional and reckless. The evidence Bolton points to in support of a reckless theory is the surveillance videotape of the crime. He asserts that the videotape depicts an individual who approaches the sales counter, leaps onto the counter, and grabs cash from the cash register. He contends that the videotape shows that as the individual leaps and grabs, the gun goes off and hits Brees in the chest. He argues that the combination of leaping onto the counter and grabbing the money from the register, while holding a loaded weapon pointed at the clerk, makes it possible that the gun accidently fired. He contends that if the jury believed that he was the robber, it could have concluded that his behavior was reckless rather than intentional.
The State relies on State v. Bailey, 263 Kan. 685, 952 P.2d 1289 (1998), to demonstrate that an argument similar to Bolton's has previously been rejected by this court. In Bailey, the defendant argued that even though he pointed the gun at the victim and pulled the trigger, he did not intend to kill the victim. In other words, he argued that an intentional act done without regard to consequences is reckless. This case is distinguishable, however, as Bolton does not argue that he pointed the gun and squeezed the trigger and unintentionally killed Brees. Instead, he argues that from the videotape evidence, the jury could have believed that the gun accidently discharged when he jumped upon the counter and grabbed the money from Brees.
Reckless second-degree murder and involuntary manslaughter are unintentional killings that require reckless behavior. They differ only in the degree of recklessness required to prove culpability. State v. Davidson, 267 Kan. 667, Syl. ¶ 2, 987 P.2d 335 (1999).
We have reviewed the videotape and find, as the district judge found, that if the jury believed Bolton was the robber depicted on the tape, the tape does not support a reasonable inference that the shooting was accidental. Trial court testimony supports our interpretation of the events on the tape. A customer in the convenience store at the time of the robbery and shooting testified that she saw and heard money change hands and saw Brees back away from the register. It was not until after the customer saw Brees back away that she heard a gunshot and threw herself on the floor. The trial judge was correct in finding that there was no evidence presented at trial to support a finding that Bolton recklessly shot Brees during the robbery.
BATSON CHALLENGE
During jury selection, defense counsel informed the court that he wanted to assert a Batson challenge, stating:
"[DEFENSE COUNSEL]: Okay. I noted that the State, I believe, struck six African Americans half of their challenges for cause.
"THE COURT: What are the numbers of the jurors?
"[DEFENSE COUNSEL]: Number 16 was State's strike, number two --
"THE COURT: Just give me the number of the jurors.
[Counsel gives juror numbers.]
"THE COURT: Okay, Let me review those and see if there's a pattern.
"[DEFENSE COUNSEL]: Okay.
"THE COURT: I have reviewed the jurors that you mentioned and frankly have seen from my own notes obvious reasons for them to be removed from this panel. Based upon that and the other strikes from both sides, I can't see a pattern of discrimination displayed by the State in this case. I have reviewed each of your objections to these particular jurors with my own notes and I can find no pattern of discrimination whatsoever. And, therefore, I'm going to deny your Batson objections at this point.
"[DEFENSE COUNSEL]: Okay."
Bolton asserted that he presented a prima facie case regarding the State's use of peremptory challenges to strike African-American jurors. He contended that the trial judge erred when the judge did not require the prosecutor to state race-neutral reasons for its peremptory strikes of African-Americans. The State argued that a fair reading of the voir dire questions showed that the entire panel was treated equally and that none of the State's questions or actions were gauged to exclude African-Americans. The State asserted that we should rely on the trial court's experience in presiding over many trials and voir dires, and trust the trial judge's independent review of the peremptory strikes.
Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), held that a State's privilege to strike jurors though peremptory challenges is subject to the 14th Amendment Equal Protection Clause of the United States Constitution. 476 U.S. at 89. We conduct a three-step test in assessing whether a peremptory challenge violates the Equal Protection Clause under Batson. State v. Walston, 256 Kan. 372, 377, 886 P.2d 349 (1994). First, the defendant must make a prima facie showing that the prosecution has used peremptory challenges on the basis of race. Second, once such a showing has been made, the burden shifts to the prosecutor to articulate a race-neutral reason for striking the juror. Third, the trial court then decides whether the defendant has carried the burden of establishing purposeful discrimination. Batson, 476 U.S. at 96-98; State v. Edwards, 264 Kan. 177, 192, 955 P.2d 1276 (1998). Whether a prima facie showing has been made that the challenges were racially based is a question of legal sufficiency subject to plenary review. State v. Sledd, 250 Kan. 15, 21, 825 P.2d 114, cert. denied 506 U.S. 849 (1992).
The Batson analysis was elaborated on in Purkett v. Elem, 514 U.S. 765, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995), and that analysis was adopted by our court in State v. Vargas, 260 Kan. 791, 795, 926 P.2d 223 (1996). Under these cases, unless discriminatory intent is inherent in the prosecutor's explanation, the reason given will be deemed race neutral. The second step does not require an explanation that is persuasive, only one that is facially valid, because that is not where the validity of the strike is considered. It is at the third step where the burden of persuasion regarding the improper motivation for the strike rests with the opponent of the strike. The judge should determine if the opponent of the strike has shown and proved purposeful discrimination. The ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. Purkett, 514 U.S. at 767-68, Vargas, 260 Kan. at 795.
In this case, because the trial judge failed to make the required findings, the matter was remanded to the district court for a proper Batson hearing or a new trial. See State v. Bolton, 271 Kan. 538, Syl. ¶ 4, 23 P.3d 824 (2001). A Batson hearing was conducted on October 25, 2001, over 2 1/2 years after Bolton's trial. The district court held the first step of the Batson analysis had been met when Bolton identified six African-Americans who were removed by the State through exercise of peremptory challenges. After hearing the prosecutor's reasons for exercising the strikes and after hearing argument from both sides, the district court found Bolton had not met his burden in proving that the challenges were racially motivated. A reviewing court gives great deference to findings of the district judge in actions of this nature because the findings turn upon evaluation of the credibility of the prosecutor. State v. Alexander, 268 Kan. 610, 619, 1 P.3d 875 (2000); Walston, 256 Kan. at 378.
Juror 16 - L. Richmond
At the Batson hearing, the prosecutor contended that Richmond was struck because she had returned late from a break. The trial transcript indicates that Richmond returned late from the lunch break during voir dire, claiming that she was unable to find a parking spot. The prosecutor asserted that Richmond was also struck because she was a church janitor and because she had family members involved in a shooting 2 years before voir dire (her brother had shot her mother). The prosecutor claimed to be especially concerned with how Richmond would react, under the circumstances, to seeing the surveillance videotape of the shooting in this case.
The State also noted in its brief that Richmond, when asked during voir dire if she had any ill will against the criminal justice system, replied, "Well, kind of sort of." When asked to clarify her response, however, Richmond indicated that she did not harbor any ill will against the agencies and the system.
Bolton asserted to the district court that his notes indicated that Richmond's brother had been in a mental institution 2 years prior to voir dire. Bolton also noted that Juror 34, P. Reed, who had not been struck from the panel, also had a family member who had had contact with law enforcement. Reed's husband had transported drugs prior to their marriage and had done time in prison.
Juror 31 - M. Berry
The prosecutor asserted to the district court that Berry was struck because she knew another juror on the panel, Juror 15, M. Smith. The prosecutor contended that he disapproved of having people on a jury who know each other. Berry was also allegedly struck because the prosecutor had, a few years before, lived very close to her. The prosecutor was concerned that although he did not recognize Berry, she might at some point during the 5-day trial be influenced as a result of his having lived in the same neighborhood, through conversations with neighbors.
Bolton rebutted the prosecutor's explanation in part by claiming that another juror, Juror 28, A. Valdez, who was not struck, also knew another juror on the panel, Juror 14, M. Oropeza.
The State, in its brief, refutes Bolton's contention that jurors were treated differently, by alluding to the fact that the reason the State did not strike Valdez is because Oropeza had already been struck. It cannot be determined from the record which party struck Oropeza from the panel. The State contends the reason for removing a juror for knowing another juror on the panel is negated when either juror is struck. This reasoning is consistent with the prosecutor's assertion at the hearing that he did not like to have people on a jury who know each other.
It must be noted that Smith, unlike Valdez, did not serve on the final jury and was also struck by the State. The State notes, however, that at the time Berry was struck, Smith was still a member of the panel. The situation with Berry and Smith differed because Berry was struck for knowing Smith and then Smith was struck for a different reason. Although this may have been an orchestrated move by the prosecution, there is no indication that jurors in the same situation were treated differently. Additionally, there were other reasons why Berry was struck.
The State also points out in its brief that Berry made comments at voir dire that raised suspicion as to her ability to keep emotions and other outside influences from entering her decision. When asked whether any juror did not feel he or she would be able to be fair and impartial with observers in the courtroom, Berry indicated she was feeling "sympathy." Berry stated:
"At this time, I really feel that I could [sic] be impartialI mean, I just don't think I could. I just feel, therefore, a lot of emotion now and it'sI feel sick.
. . . .
"Sick, I don'tI feel that I don't want to do it. I don't want to make"
Later, when asked whether Berry could wait to hear all the evidence before deciding the case, Berry responded, "II'm not sure. I think I could, but I wouldn't want to." Berry also stated, however, that if she took an oath she would try to do her best to hear all the evidence before making her decision.
Juror 12 - E. Lasley
The prosecutor asserted that Lasley was struck because Lasley indicated he had gone to school with an Ed Bolton and Lasley was unaware of whether Ed was a relative of Gentry Bolton. Bolton did not refute the State's basis for striking Lasley at the hearing.
In his brief, Bolton cites to the fact that Lasley was struck from the panel even though the prosecutor did not know if Ed Bolton and Gentry Bolton were related. The State asserts, however, that it is in the State's best interest to strike any person who might be good friends with a relative of a defendant.
Juror 15 - M. Smith
The prosecutor asserted that Smith was removed because he had indicated he had a back problem. The trial was scheduled to last 5 days. The prosecutor claimed he thought it would be better to have people who were comfortable throughout the trial rather than take the chance of the need for additional recesses or a possible mistrial because of the back problems of this particular juror.
Bolton's counsel admitted that he did not have an independent recollection of whether the State or the trial court had sufficiently questioned Smith about how burdensome it would be for him to serve as a juror or whether the court had offered any alternative arrangements. Bolton contended, however, that the issue was not sufficiently explored to justify the State in using Smith's back problem as the reason for striking him.
During voir dire, Smith indicated he had back surgery about a year ago, was on social security disability as a result of his back injury, and that the bench on which he was sitting was hurting his back. Upon moving to the padded chairs he would be seated in if a member of the jury, Smith indicated that he would not have a problem sitting during the trial.
The State asserts that attention and patience are important aspects for a juror and that the State should not be required to learn in the middle of trial that a juror is having back problems and may or may not have heard all the evidence.
Juror 32 - M. Bryant
The prosecutor asserted that Bryant was struck from the panel because of a recent situation in which her granddaughter's father had been charged or had had certain experiences with drugs. He also contended Bryant was struck because she was retired from the Social Security Administration and because she was doing maintenance work at the Johnson County Juvenile Detention Center. The prosecutor stated that her position at the detention center put her in contact with criminally charged juveniles and made it impossible for the State to determine her position on individuals who might be similarly situated to the young defendant in this case. Bolton was over 18 years of age at the time.
Bolton contended the prosecutor had been referring to the situation in which Bryant's granddaughter's father was charged with a drug offense and for which Bryant had had some contact with the father's attorney. Bolton cited to the fact that the husband of Juror 34, P. Reed, had been also been arrested on a drug offense and served time prior to their marriage, but that Reed had not been struck by the State. It must be noted that the record does not indicate Reed's race.
The State accurately points out in its brief that seven persons on the jury other than Bryant had either been, or knew someone close to them who had been, charged with a crime. Two of these individuals, in addition to Reed, knew someone who had been charged with a drug-related offense. Of all these individuals, all but Reed and one other, C. Boland, were struck by the State. The defense struck Boland. The State asserts that Reed differs from the others because her husband was charged, convicted, and served time for his offense prior to Reed knowing him. The other jurors were all related or friends at the time the charge was made.
Bolton points out in his brief that Bryant was not employed by the Johnson County Juvenile Detention Center, but instead that it was Juror R. Hicks' husband who was so employed. The State concedes this point in its brief, asserting that during voir dire the note was incorrectly made beneath Bryant's name. The State claims Bryant and Hicks were seated next to each other in the courtroom and were listed next to each other on the prosecution's worksheet. The veracity of these statements is unknown, however, as no seating ch