State v. Jenkins

1

NOT DESIGNATED FOR PUBLICATION

No. 117,026


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT TRAVIS JENKINS,
Appellant.


MEMORANDUM OPINION

Appeal from Seward District Court; BRADLEY E. AMBROSIER, judge. Opinion filed May 25,
2018. Affirmed.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., MALONE and ATCHESON, JJ.

ATCHESON, J.: After sorting through conflicting testimony about an early morning
confrontation in downtown Liberal, a jury sitting in Seward County District Court
convicted Defendant Robert Travis Jenkins of aggravated robbery. On appeal, Jenkins
contends the verdict should be set aside because the prosecutor intentionally excluded
potential jurors during the selection process at the start of the trial based on their race and
delivered an improper closing argument to the jury at the end of the trial and because the
district court failed to instruct the jury on battery as a lesser included offense of
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aggravated robbery. Jenkins has not shown reversible error for any of those reasons. We,
therefore, affirm his conviction and sentence.

FACTUAL BACKGROUND

Abdifathah Hassan Hashi, the robbery victim, met Mohammad Jama, his friend
and coworker, at a bar in Liberal shortly before midnight on Halloween in 2015. Hashi
drank heavily until closing time about two hours later and became quite intoxicated. Jama
abstained. While at the bar, Hashi exchanged text messages with Raeanne Winters, who
he had met briefly sometime earlier. Winters worked as a dancer at a gentlemen's club
across the state line in Oklahoma. Hashi arranged to rendezvous with Winters near the
parking lot of a downtown bank.

Jama drove Hashi to the location and waited in their car as Hashi approached
Winters' sedan. According to the account Winters and Jenkins offered at trial, Hashi
made an untoward sexual suggestion to Winters. Jenkins interceded, and he and Hashi
quickly began exchanging punches. Jenkins knocked Hashi to the pavement. Hashi,
however, described a friendly exchange with Winters. He said Jenkins suddenly attacked
him for no reason. Although he tried to fend off Jenkins, he could not. Hashi retreated
toward Jama and realized he was missing a bankroll of $400, his cell phone, and a debit
card his employer issued to him. As Hashi got into the car with Jama, Winters' sedan
passed by them. They decided to give chase. While Jama pursued the sedan, Hashi called
911 to report he had been robbed and provided a description of the sedan, Winters, and
Jenkins.

After receiving the report of a possible robbery, Liberal Police Sergeant Dallas
Ryan saw Winters' sedan heading away from the vicinity of the bank. He immediately
initiated a felony traffic stop. Sgt. Ryan ordered Winters and Jenkins out of the sedan,
and upon seeing they matched the description of the persons involved in the robbery, he
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placed them under arrest. Sgt. Ryan then had a communications specialist call Hashi's
cell phone. A phone on the driver's side floorboard of the sedan began ringing. Sgt. Ryan
recovered the cell phone. Hashi later identified the phone as his. He told the officers
investigating the robbery that the face of the phone had not been cracked before it was
taken from him. Ryan also recovered a makeup case from the sedan. The case contained
about $345 in cash in one compartment and about $120 in cash in a second compartment.
Hashi's debit card never turned up. After Winters and Jenkins were arrested, officers
advised them of their Miranda rights and attempted to question them about the incident.
Winters and Jenkins both invoked their constitutional right to remain silent and declined
to answer questions.

In a videotaped statement taken shortly after the events, Hashi outlined for
investigators what happened. He identified his passport and a set of keys as among the
items taken from him, although he later found them at home. He also at least implied the
face of the cell phone was cracked before the robbery, an implication inconsistent with
his earlier account.

The jury heard the case during two days in early August 2016. Hashi, Jama, and
Sgt. Ryan testified for the State, along with other witnesses. The jury also watched
Hashi's videotaped statement. At trial, Winters and Jenkins testified as defense witnesses.
Winters told the jury she had earned the money in the makeup case working at a club
earlier that night. She also explained she saw Hashi's cell phone on the pavement
immediately after the fight and picked it up because she thought it belonged to Jenkins.
Jenkins testified that he perceived Hashi as being threatening toward Winters and sought
to calm things down. But Hashi didn't back away and appeared to be drunk. According to
Jenkins, the two of them wound up throwing punches. Jenkins denied taking money or
anything else from Hashi.

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There were a number of discrepancies across the various accounts of what
happened between Hashi and Jenkins. Those differences were for the jury to sort out, and
we have no need to catalogue them here. See Golden v. Den-Mat Corp., 47 Kan. App. 2d
450, 465, 276 P.3d 773 (2012) ("Jurors sort out varied facts and their implications at
trial."); State v. Bellinger, 47 Kan. App. 2d 776, 807, 278 P.3d 975 (2012) (Atcheson, J.,
dissenting). But we mention in passing Dekow Omar, a friend of Hashi's, who testified as
a defense witness. He claimed to have been with Hashi and Jama at the bar and when
they drove to the encounter with Winters. Neither Hashi nor Jama mentioned being with
Omar. According to Omar, the three men believed they were headed for an assignation
with Winters. When she then objected, Jenkins intervened. Omar testified that he never
saw Jenkins take anything from Hashi and that he had seen damage to the face of Hashi's
cell phone before that night.

The charges against Jenkins evolved over the course of the prosecution and
initially included drug crimes based on controlled substances Sgt. Ryan found in Winters'
sedan. The drugs, however, could not be legally attributed to Jenkins. See State v. Abbott,
277 Kan. 161, 167-69, 83 P.3d 794 (2004) (passenger could not be convicted of
possession of drug paraphernalia for items found in rear seat pocket of motor vehicle
without some evidence showing his knowledge and intent to possess). The only charges
submitted to the jurors at the close of the evidence were the aggravated robbery of Hashi,
a severity level 3 person felony, and criminal damage to Hashi's cell phone, a
misdemeanor. As we have indicated, the jurors convicted Jenkins of aggravated robbery
and found him not guilty of criminal damage to property. The district court later ordered
Jenkins to serve 221 months in prison, reflecting the presumptive mitigated punishment
under the sentencing guidelines based on his criminal history. Jenkins has timely
appealed.


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LEGAL ANALYSIS

On appeal, Jenkins contends the prosecutor impermissibly exercised peremptory
challenges to remove potential jurors based on their ethnicity and gave a closing
argument that deprived him of a fair trial. He also says the district court should have
instructed the jury on battery as a lesser included offense of aggravated robbery. As we
have indicated, we see no reversible error on those points. We, likewise, decline to
reverse based on Jenkins' claim of cumulative error.

Jury Selection

Jenkins argues the prosecutor used peremptory challenges to remove two Hispanic
women as potential jurors in this case because of their ethnicity. If that were true, the
prosecutor would have violated the constitutional rights of those women and of Jenkins,
and the violation would require that we reverse the conviction and remand for a new trial
in front of a jury chosen through a race-neutral process. We are significantly handicapped
in assessing this issue—commonly known as a Batson challenge—because the lawyers
and the district court failed to develop a good hearing record in addressing Jenkins'
objection to the selection of the jurors. Given what we have to review, we cannot say the
district court erred in denying Jenkins' Batson challenge. To explain our conclusion, we
first outline the constitutional rights at issue and the judicially developed methodology
aimed at protecting those rights. We then assess how the lawyers and the district court
handled the issue here in light of that methodology.

We necessarily begin with Batson v. Kentucky, 476 U.S. 79, 88-89, 106 S. Ct.
1712, 90 L. Ed. 2d 69 (1986), and the United State Supreme Court's holding that in
criminal cases, prosecutors may not rely on race as a criterion to excuse African-
Americans called as potential jurors. In Batson, the Court recognized twin equal
protection considerations supporting a prohibition on the State's use of racially based
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peremptory challenges or juror strikes. First, defendants are denied the right to equal
protection if the State seeks to try them before juries "from which members of [their] race
have been purposefully excluded." 476 U.S. at 85. 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 example of the evil the Fourteenth Amendment was
designed to cure." 476 U.S. at 85; see Miller-El v. Dretke, 545 U.S. 231, 237-38, 125 S.
Ct. 2317, 162 L. Ed. 2d 196 (2005) (noting the dual equal protection violations attendant
to the State's race-based removal of potential jurors during the selection process).

The United States Supreme Court has extended the rule of Batson to permutations
of the essential fact pattern present there—the State's systematic use of peremptory
strikes to remove African-Americans from the jury pool in the trial of an African-
American defendant on criminal charges. For example, a Caucasian defendant may assert
a Batson challenge to the prosecutor's apparently deliberate removal of African-
Americans called as jurors in a criminal case. Powers v. Ohio, 499 U.S. 400, 402-03, 416,
111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). The State may challenge a defendant's use of
peremptory challenges in what appears to be a racially motivated fashion. Georgia v.
McCollum, 505 U.S. 42, 59, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992). Particularly
pertinent here, the Court has recognized that Hispanics reflect a sufficiently identifiable
racial or ethnic group to be protected by the Batson rule. Hernandez v. New York, 500
U.S. 352, 355, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) (prosecutor's deliberate
exclusion of Hispanics from jury would violate Equal Protection Clause); see State v.
Pham, 281 Kan. 1227, 1237-38, 136 P.3d 919 (2006) (recognizing Batson rule applies to
Hispanics called for jury duty).[1]

[1]The United States Supreme Court has also extended the principle underlying
Batson to the State's systematic exclusion of women from juries based on gender. J.E.B.
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v. Alabama ex rel. T.B., 511 U.S. 127, 129, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994).
Some courts have recognized Batson challenges to the removal of potential jurors
because of their religious beliefs. See United States v. Brown, 352 F.3d 654, 668-69 (2d
Cir. 2003); but cf. United States v. Girouard, 521 F.3d 110, 113 (1st Cir. 2008)
(regarding the question as an open one and declining to decide it). Likewise, neither
plaintiffs nor defendants in civil cases may purposefully strike potential jurors because of
their race. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616, 111 S. Ct. 2077, 114
L. Ed. 2d 660 (1991).

All of those decisions reflect the independent significance of the equal protection
rights of citizens called to jury service to participate in the judicial process without racial
discrimination. See Powers, 499 U.S. at 402, 409. A defendant's Batson challenge serves
to protect the rights of those citizens, since they are not in a position to efficiently or
effectively assert their own rights. 499 U.S. at 413-15. And the eradication of purposeful
racial discrimination in juror selection promotes the integrity of the judicial system in the
eyes of the litigants, other participants, and the community as a whole. McCollum, 505
U.S. at 48-49; Powers, 499 U.S. at 412-13.

The ultimate question in a Batson challenge asks whether the prosecutor has
purposefully and deliberately sought to exclude potential jurors because of their race. The
analytical framework for answering that question draws on the model developed in
employment discrimination cases to probe an employer's intent in hiring, firing,
promoting, or otherwise making work related decisions. Johnson v. California, 545 U.S.
162, 170-71 & n.7, 125 S. Ct. 2410, 162 L. Ed. 2d 129 (2005). Because purposeful racial
discrimination typically is difficult to prove—seldom will the discriminatory actor admit
the illicit purpose—the approach imposes shifting burdens of production of
circumstantial evidence. The inquiry advances in three stages. Foster v. Chatman, 578
U.S. ___, 136 S. Ct. 1737, 1747, 195 L. Ed. 2d 1 (2016); State v. Kettler, 299 Kan. 448,
461-62, 325 P.3d 1075 (2014).

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The party challenging the peremptory strikes—here, the criminal defendant
alleging racial discrimination in the State's selection of jurors—has to make a prima facie
showing of impermissible intent on the part of the prosecutor. Miller-El, 545 U.S. at 239;
Johnson, 545 U.S. at 167; State v. McCullough, 293 Kan. 970, 992, 270 P.3d 1142
(2012). The burden at the first stage is not intended to be onerous. Johnson, 545 U.S. at
170 (initial burden satisfied if the proffered evidence is "sufficient to permit the trial
judge to draw an inference that discrimination has occurred"). The systematic use of
peremptory challenges to remove members of a protected racial class from the pool of
potential jurors typically would suffice. Miller-El, 545 U.S. at 240-41. The exercise of a
few peremptory strikes (among many) to remove all members of an identifiable ethnic
group from the jury pool may suffice as a prima facie indicator of impermissible animus.
See Johnson, 545 U.S. at 173. The prosecutor's disparate questioning of Hispanic and
Caucasian jurors in an apparent effort to generate grounds to disqualify the Hispanics for
cause likely would establish a prima facie case for the later use of peremptory strikes to
keep those persons from serving on the jury. See Miller-El, 545 U.S. at 255-60.

If the defendant presents such evidence, the prosecutor is then obligated to state a
racially neutral reason for the exercise of the disputed peremptory challenges. Miller-El,
545 U.S. at 239; Johnson, 545 U.S. at 168; McCullough, 293 Kan. at 992. Again, the
burden at that second stage is slight. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S. Ct.
1769, 131 L. Ed. 2d 834 (1995) ("The second step of this process does not demand an
explanation that is persuasive, or even plausible."). The prosecutor's ability to voice a
nondiscriminatory rationale for his or her approach to juror selection does not in and of
itself defeat the Batson challenge. Miller-El, 545 U.S. at 240. That simply advances the
district court's inquiry to the third step and the ultimate question of whether purposeful
discrimination has been shown based on all of the available evidence. 545 U.S. at 251-52;
Purkett, 514 U.S. at 768; McCullough, 293 Kan. at 993-94. The district court must
determine if the prosecutor's stated reasons for excluding the potential jurors are the true
reasons or merely a pretext—a cover-up—for impermissible racial discrimination. As the
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Purkett Court explained: "At that [third] stage, implausible or fantastic justifications may
(and probably will) be found to be pretexts for purposeful discrimination." 514 U.S. at
768. In making that call, the district court may look at various forms of circumstantial
evidence. Miller-El, 545 U.S. at 253. The party asserting the Batson challenge bears the
ultimate burden of proving by a preponderance of the evidence that racial discrimination
or intent motivated the peremptory strikes. Crittenden v. Ayers, 624 F.3d 943, 958 (9th
Cir. 2010); United States v. Martinez, 621 F.3d 101, 109 (2d Cir. 2010); United States v.
Tucker, 90 F.3d 1135, 1142 (6th Cir. 1996).

A variety of circumstances can indicate pretextual justifications for race based
decisions. For example, shifting reasons for removing a potential juror may indicate
pretext. Foster, 136 S. Ct. at 1750-51. That is, should an initial reason look unpersuasive
under closer scrutiny, the prosecutor's sudden recollection of another reason suggests
neither may be the real reason. See Miller-El, 545 U.S. at 245-46. Similarly, if the stated
reason for striking the potential juror pertains to a particular experience or characteristic
disclosed during voir dire, the prosecutor's failure to ask further about that circumstance
may indicate the information really wasn't significant and has been offered to paper over
an impermissible reason. See Snyder v. Louisiana, 552 U.S. 472, 481, 128 S. Ct. 1203,
170 L. Ed. 2d 175 (2008); Miller-El, 545 U.S. at 244-46. If the prosecutor removes an
ethnically identifiable juror ostensibly because of certain experiences or characteristics
yet retains as jurors Caucasians with the same or similar experiences or characteristics,
pretext looms over those decisions. Foster, 136 S. Ct. at 1750-51; Snyder, 552 U.S. at
483-84; Miller-El, 545 U.S. at 241, 244-48; McCullough, 293 Kan. at 995. In Foster, the
Court found the prosecution trial team's notations about potential jurors unmistakably
showed race to be a consideration that corresponded to the use of peremptory strikes to
excuse African-Americans. 136 S. Ct. at 1755. A court may also consider historical data
or information on the State's practices in excluding African-American or Hispanic jurors
in other cases in the relevant district. Miller-El, 545 U.S. at 253; see Batson, 476 U.S. at
10

95 (defendant may present evidence of purposeful exclusion of African-Americans across
multiple cases but need not do so).

The search for the true intent behind a decision to keep or reject a potential juror is
not necessarily an easy one. Miller-El, 545 U.S. at 238 ("The rub has been the practical
difficulty of ferreting out discrimination in selections discretionary by nature."). Just as
employers seldom acknowledge making workplace decisions based on impermissible
criteria, such as race or gender, neither do lawyers picking juries. See Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 255 n.8, 101 S. Ct. 1089, 67 L. Ed. 2d 207
(1981) (sequencing of proof in employment discrimination cases "intended progressively
to sharpen the inquiry into the elusive factual question of intentional discrimination");
Hoffman v. Caterpillar, Inc., 256 F.3d 568, 576 (7th Cir. 2001) ("employers are generally
very careful to avoid statements that suggest discriminatory intent—whether their true
intentions are discriminatory or not"). The search, however, may be more confounding in
assessing conduct in the courtroom than in the boardroom given the nature of peremptory
challenges to potential jurors. By their very definition, those challenges require no reason
be given at the time they are made, and they need not rest on studied or even rational
choices. Miller-El, 545 U.S. at 238. A great deal of folklore has developed around the
tendencies and predispositions of potential jurors based on occupation, education, and
similar characteristics. See 2 Bailey and Fishman, Criminal Trial Techniques § 39:50
(2009); Wenke, The Art of Selecting a Jury, p. 75 (2d ed. 1989). Lawyers may have
idiosyncratic likes and dislikes in selecting jurors and can use peremptory challenges to
serve those preferences. Miller-El, 545 U.S. at 252 ("peremptories are often the subject of
instinct"). And a lawyer who has picked more than a few juries appreciates the value of a
peremptory challenge to remove the potential juror with a grating personality who might
well annoy or antagonize his or her colleagues in the jury room, inhibiting both
cooperative deliberations and a verdict. In short, peremptory challenges may be exercised
based on generalizations, impressions, or irrationalities but not as a means of excluding
potential jurors based on protected class characteristics of race or gender.
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In the context of a defendant's Batson challenge, the district court then often faces
a daunting task in sorting true (if sometimes strange) reasons for keeping or discarding
potential jurors from subterfuges intended to mask impermissible discrimination. The
district court's determination commonly will depend on circumstantial evidence,
including the reasons articulated, the way they are articulated, and how they square up
with the prosecutor's decisions in picking some potential jurors and excluding others who
seem to share common backgrounds or dispositions other than race. The district court is,
effectively, passing on the credibility of the prosecutor, so demeanor generally plays a
part in the decision. Snyder, 552 U.S. at 477. The district court also will have had the
opportunity to observe the prospective jurors and the selection process to gauge reasons
prosecutors may offer based on nonverbal behaviors or cues of a particular juror or other
characteristics that might not otherwise be evident from a transcript of the voir dire. 552
U.S. at 477.

As a result, appellate courts must afford considerable deference to those
determinations. Foster, 136 S. Ct. at 1747; Snyder, 552 U.S. at 477 (matters of credibility
and demeanor singularly rest within the district court's purview); Batson, 476 U.S. at 98
& n.21; State v. Dupree, 304 Kan. 43, 60, 371 P.3d 862 (2016). The Court has stated that
on appellate review, the district court's ruling on discriminatory intent underpinning a
Batson challenge must be accepted "unless it is clearly erroneous." Snyder, 552 U.S. at
477. The Kansas Supreme Court has applied an abuse of discretion standard.
McCullough, 293 Kan. at 992. For purposes of resolving a Batson challenge, we see little
practical difference.[2]

[2] A district court may be said to have abused its discretion if the result it reaches
is "arbitrary, fanciful, or unreasonable." Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221
P.3d 1130 (2009). That is, no reasonable judicial officer would have come to the same
conclusion if presented with the same record evidence. An abuse of discretion may also
occur if the district court fails to consider or to properly apply controlling legal standards.
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State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A district court errs in that
way when its decision "'goes outside the framework of or fails to properly consider
statutory limitations or legal standards.'" 288 Kan. at 299 (quoting State v. Shopteese, 283
Kan. 331, 340, 153 P.3d 1208 [2007]). Finally, a district court may abuse its discretion if
a factual predicate necessary for the challenged judicial decision lacks substantial support
in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). The clearly
erroneous standard functionally replicates the second and third aspects of the abuse of
discretion standard. See Anderson v. Bessemer City, 470 U.S. 564, 573-75, 105 S. Ct.
1504, 84 L. Ed. 2d 518 (1985) (clearly erroneous standard as to factual findings); United
States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013) ("A district court abuses its
discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding
of fact.").

The exclusion of even a single potential jury through a party's use of a peremptory
challenge for a racially discriminatory purpose creates a constitutional violation. Foster,
136 U.S. at 1747. As we have pointed out, the prospective juror has been the victim of
impermissible invidious discrimination violating the Equal Protection Clause. Moreover,
the injection of racial animus in the selection of jurors undermines both the appearance
and reality of fundamental fairness in the judicial process. The resulting impact on a
criminal prosecution effectively amounts to a structural error, requiring the reversal of
any conviction without regard to the strength of the evidence supporting the guilty
verdict. Weaver v. Massachusetts, 582 U.S. ___, 137 S. Ct. 1899, 1911-12, 198 L. Ed. 2d
420 (2017) (like errors "deemed structural," Batson violation requires "automatic
reversal"); Crittenden v. Chappell, 804 F.3d 998, 1003 (9th Cir. 2015) (describing Batson
violation as structural error); United States v. McAllister, 693 F.3d 572, 582 n.5 (6th Cir.
2012) (recognizing Batson violation not subject to harmless error review and
characterizing harm as structural error); cf. Vasquez v. Hillery, 474 U.S. 254, 263-64, 106
S. Ct. 617, 88 L. Ed. 2d 598 (1986) (government's deliberate exclusion of African-
Americans from grand jury indicting defendant undermines "structural integrity" of
criminal justice process, cannot be excused as harmless error, and requires reversal of
guilty verdict at trial). The Kansas Supreme Court has similarly recognized that a
prosecutor's purposeful exclusion of potential jurors based on race requires a defendant
be granted a new trial. See Kettler, 299 Kan. at 461-62.
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In this case, the prosecutor and Jenkins' lawyer passed 28 potential jurors for
cause, meaning none of those individuals responded to questions in a way suggesting
they could not fairly and impartially listen to the evidence and return an unbiased verdict.
See K.S.A. 22-3411a. Each side then had the right to peremptorily excuse or strike eight
of the 28 potential jurors, yielding 12 individuals who would then sit as the jury. K.S.A.
2017 Supp. 22-3412(a)(2)(B). Beginning with the prosecution and then alternating, each
lawyer identified by name a potential juror to be excused. The district court oversaw that
process outside the presence of the potential jurors and did not formally excuse any of
them until both sides had exercised all of their strikes.

As we have indicated, a party need not give a reason for peremptorily removing a
potential juror unless the opposing party challenges the strike as a potential Batson
violation. We leave for another case whether a district court can or should raise a possible
Batson problem on its own initiative. See People v. Rivera, 221 Ill. 2d 481, 515, 852
N.E.2d 771 (2006) (trial court may raise a "Batson issue" if evidence suggestive of
prohibited animus "is abundantly clear"); State v. Evans, 100 Wash. App. 757, 763, 998
P.2d 373 (2000). Jenkins, through his lawyer, challenged the prosecutor's first and third
peremptory strikes as directed at Hispanic females and the sixth strike as directed at an
African-American female. On appeal, Jenkins has not disputed the district court's denial
of his Batson challenge to the African-American woman, so we do not consider that
ruling further.

Because of the way the lawyers and the district court handled the Batson issue,
they failed to develop a sufficient factual record for us to assess the issue. Material
information was either never discussed on the record or never considered in assessing
Jenkins' challenges. What we have is wholly inadequate to review the propriety of the
prosecutor's disputed strikes. See Kettler, 299 Kan. at 464-65 (court declines to reverse
denial of defendant's Batson challenge in light of inadequate trial record).
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Here, Jenkins' lawyer lodged and the district court addressed a Batson challenge
after the prosecutor's first strike. Everyone apparently agreed the potential juror was
Hispanic. The district court asked the prosecutor for a race-neutral reason and he cited
her young age. The record indicates she was 22 years old. The district court properly
found that to be a race-neutral reason and immediately denied the challenge. The district
court did not ask Jenkins' lawyer for any additional evidence that would suggest the
reason to be a pretext for purposeful racial discrimination. And the lawyer did not request
the opportunity to speak to the third stage in an appropriate Batson inquiry into intent.
Before turning to the prosecutor's third strike—the other one Jenkins disputes on
appeal—we outline other problems with the approach the lawyers and the district court
took here.

First, the district court should have deferred the Batson issue until both sides had
exercised all of their peremptory challenges. In the face of a Batson challenge at that
point, the district court should have stated on the record the composition of the 28-person
panel passed for cause by race and gender. The lawyers should have been allowed to
agree or disagree with the district court's characterization of the makeup of the panel and
to outline their disagreements. That demographic information would have established a
baseline against which to measure the impact of the strikes. The hearing record similarly
contains no comparable information on the composition of the jury itself. The appellate
record does include a list of the names of the 12 persons seated as jurors prepared for
purposes wholly unconnected to the Batson challenges.[3]

[3]For what it is worth, the list of jurors includes two names that are obviously
Hispanic. As we discuss, the courts have been reticent to assume or infer the ethnic
identity of a prospective juror for Batson purposes based on his or her surname alone.
Jenkins' lawyer indicated he intended to lodge a Batson challenge as to any Hispanic or
African-American the prosecutor peremptorily struck from the jury panel. So the juror
list coupled with the hearing record suggests the prosecutor peremptorily excused several
Caucasians and left at least two Hispanics as jurors. But we really don't have the kind of
15

tailored findings compiled in conjunction with the Batson challenges to warrant such a
conclusion.

Second, by immediately taking up Jenkins' challenge to the prosecutor's first
peremptory strike, there was no evidence of a discriminatory pattern. There couldn't be
because the prosecutor still had seven strikes to exercise. If all of them had been
exercised to remove Hispanics that would be significant circumstantial evidence of
purposeful discrimination. If such a pattern emerged, Jenkins' lawyer presumably could
have revisited the first strike. Likewise, at the time of the first strike, there was no
evidence to suggest the prosecutor's stated reason—the potential juror's age—was a
pretext. But that's only because there was no way to tell who the prosecutor would leave
on the jury. If the prosecutor declined to use peremptory strikes to remove one or more
Caucasians of about the same age, the stated reason looks suspicious.

Finally, the district court should have clearly and explicitly engaged the third stage
of the Batson inquiry into intent. But the district court's omission does not, in and of
itself, establish or amount to a Batson violation. The record does not show Jenkins'
lawyer was denied the opportunity to show the prosecutor's stated reason for excusing the
potential juror was pretextual. And on appeal he points to no evidence supporting that
conclusion.

The prosecutor's third peremptory strike creates another wrinkle. Jenkins, through
his lawyer, objected on the grounds the woman had an identifiably Hispanic surname.
The record does confirm that much. The prosecutor responded that he did not think the
woman was Hispanic. The district court then asked the prosecutor for a racially neutral
reason "assum[ing] she is [Hispanic]." The prosecutor responded that he "[j]ust didn't like
her." That sort of subjective and wholly undefined basis for exercising a peremptory
challenge does not satisfy even the decidedly relaxed requirement for a race neutral
reason under the second stage of the Batson inquiry. Cf. Purkett, 514 U.S. at 768-69
16

(prosecutor's unsupported denial of racial motive insufficient; stated reason, though
illogical, must be anchored in some factual representation that does not deny equal
protection).

The district court asked Jenkins' lawyer to expand upon the basis for his challenge.
He reiterated that the woman had a Hispanic name but hedged on whether she
indisputably looked Hispanic. The district court suggested the lawyers could augment the
record by reopening the examination of the potential jurors to ask the woman about her
surname and how she identifies herself ethnically. The district court went on to allow the
prosecutor's peremptory strike "as it is." The district court then specifically invited
Jenkins' lawyer to revive the matter of the woman's ethnicity "when we're all done today"
if he wished to pursue it further. As far as the record indicates, the lawyer did not take up
the invitation to question the woman further or to present other evidence bearing on her
ethnicity.

Although the district court was something less than clear in its ruling, we
reasonably infer the district court concluded based on all of the circumstances, including
its observations during jury selection, that the woman was not Hispanic and, therefore,
Jenkins' lawyer had failed to satisfy the first step in the Batson inquiry. Courts have held
that peremptorily striking a juror with an identifiably ethnic surname does not itself
establish prima facie evidence of impermissible discrimination. See United States v.
Campione, 942 F.2d 429, 433 (7th Cir. 1991); United States v. Esparsen, 930 F.2d 1461,
1466 (10th Cir. 1991); State v. Alvarado, 226 Neb. 195, 198-99, 410 N.W.2d 118 (1987);
State v. Alvarez, 872 P.2d 450, 457 n.6 (Utah Sup. Ct. 1994); cf. People v. Gutierrez, 2
Cal. 5th 1150, 1156 & n.2, 395 P.3d 186 (2017) (prosecutor's pattern of striking potential
jurors based on Hispanic surnames or ethnic appearance established prima facie
discrimination).[4]

17

[4]Many married women use their husbands' surnames. Given the record here, we
have no way of knowing if the prospective juror may have been married to a Hispanic
man at the time or even had retained a married name after a divorce. We need not address
whether a Caucasian called for jury duty could be peremptorily struck without violating
Batson because he or she is married to a Hispanic or an African-American. See United
States v. Guillot, No. 93-2572, 1995 WL 73288, at *2 (6th Cir. 1995) (unpublished
opinion) (assuming non-Hispanic married to Hispanic within class protected under
Batson); Small v. Milyard, No. 10-cv-01014-WJM, 2011 WL 2714121, at *16 (D. Colo.
2011) (unpublished opinion); contra, United States v. Cantu, No. 93-3238, 1995 WL
122792, at *5 (6th Cir. 1995) (peremptory strike of Caucasian married to Hispanic does
not establish prima facie Batson violation).

Jenkins' lawyer simply did not pursue the matter following the district court's
ruling. He did not argue that he had generated prima facie evidence of discriminatory
animus. He did not point to additional evidence to support that conclusion. And he did
not take additional steps to establish whether the potential juror was Hispanic. Given the
record evidence, we see nothing permitting us to reverse the district court's decision
allowing the prosecutor's third peremptory strike.

The poorly developed record on Jenkins' Batson challenges fails to show any
impermissible racial animus on the prosecutor's part in selecting the jury. The parties and
the district court should have done better in making a record. But we cannot and do not
venture any suggestion about what a thorough airing of the challenges would have
shown.

In some cases, a remand might be appropriate. If, for example, the district court
failed to resolve a material conflict in the evidence and ruled against the party asserting
the Batson challenge, a remand probably would be in order so the conflict could be
settled and the evidence reevaluated in light of that resolution. Here, however, we have
no evidence on critical points, such as the demographic composition of the original array
of potential jurors passed for cause and of the jury seated to hear the case. Nor do we
have evidence about the seated jurors that might cast doubt on the prosecutor's stated
18

reason for exercising his first peremptory challenge. We see no particularly reliable
means to generate that information now, more than 18 months after the trial. Jenkins has
not suggested a way that might be accomplished, although he has asked for remand as an
alternative remedy to reversal of his conviction. We find no demonstrable Batson
violation in the jury selection process and no basis for granting Jenkins relief on that
point.

Jury Instructions

On appeal, Jenkins contends the district court should have instructed the jury on
battery as a lesser included offense of aggravated robbery. He did not request the
instruction in the district court, so we review for clear error. State v. Williams, 295 Kan.
506, 516, 286 P.3d 195 (2012). Had Jenkins asked for a battery instruction, the district
court properly would have denied the request as legally inappropriate. See State v.
Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012) (jury instruction must be legally
appropriate to predicate error on its omission).

For a crime to be a lesser included offense, its elements must be identical to some
of the elements of the greater offense. K.S.A. 2017 Supp. 21-5109(b)(2); State v.
Ramirez, 299 Kan. 224, 226, 328 P.3d 1075 (2014). In other words, if the greater offense
is proved, then the lesser offense must have been proved, as well. Jenkins does not argue
that battery is a lesser degree of the same generic crime as aggravated robbery, which
would support a jury instruction under K.S.A. 2017 Supp. 21-5109(b)(1). That argument
would find no support in the law. See State v. Plummer, 45 Kan. App. 2d 700, 703-05,
251 P.3d 102 (2011) (theft lesser degree of robbery because both entail wrongful taking
of another's property and share lineage from common-law crime of larceny), aff'd 295
Kan. 156, 283 P.3d 202 (2012).

19

The Kansas Supreme Court addressed this issue in State v. Frierson, 298 Kan.
1005, 1019, 319 P.3d 515 (2014), and held that under the criminal code in effect before
2011, battery was not a lesser included offense of aggravated robbery. The court pointed
out that aggravated robbery required the defendant cause bodily harm to a person in the
course of obtaining possession of property through force or the threat of bodily harm. But
the crime required no particular intent—or any intent, for that matter—on the defendant's
part to cause bodily harm. See K.S.A. 21-3427. Conversely, battery required a defendant
to intentionally or recklessly cause bodily harm to the victim, thereby imposing a mental
element not required for aggravated robbery. K.S.A. 21-3412(a)(1). Battery, therefore,
was not a lesser included offense. 298 Kan. at 1019.

Jenkins says Frierson is no longer applicable because the 2011 recodification of
the criminal code redefined and modified the requisite mental states for various crimes.
See K.S.A. 2017 Supp. 21-5202 (defining "culpable mental states" under new code).
Although the recodification did alter the applicable mental states in some respects, those
changes do not undercut the reasoning and result in Frierson. As now defined in K.S.A.
2017 Supp. 21-5420, aggravated robbery still requires that a defendant inflict bodily harm
on a person in the course of a robbery. And the recodified version adds no intent
component to the bodily harm requirement. Under the recodification, battery criminalizes
a defendant's actions in "knowingly or recklessly" causing bodily harm to another person.
K.S.A. 2017 Supp. 21-5413(a)(1). The recodification, therefore, retains the difference in
elements between aggravated robbery and battery the Frierson court found dispositive of
the lesser included offense issue. That is, the bodily harm component of aggravated
robbery requires no intent, while the bodily harm component of battery does.
Accordingly, battery requires proof of an element in addition to what would be required
for proof of aggravated robbery, and it, therefore, cannot be a lesser included offense.
The district court did not err in failing to instruct the jury on battery as a lesser included
offense of aggravated robbery.

20

Closing Argument

Jenkins contends the prosecutor's closing argument to the jury deprived him of a
fair trial in three ways: (1) by impermissibly attacking his and Winter's credibility based
on their decisions not to speak with the police in conformity with their Miranda rights—
what's known as a Doyle violation; (2) by shifting the burden of proof to him with
negative comments about his failure to explain his version of the events until trial; and
(3) by expressing a personal opinion about the credibility of some of the witnesses. We
take up those arguments in order and find no reversible error.

To assess impropriety in a prosecutor's closing argument, the Kansas appellate
courts now deploy the analytical model outlined in State v. Sherman, 305 Kan. 88, 109,
378 P.3d 1060 (2016), that first considers "error" and then weighs any "prejudice" to the
defendant resulting from an error. Comments made during argument will be considered
error if they fall outside the wide latitude afforded a prosecutor in discussing the evidence
and the law. 305 Kan. at 109. This simply transplants the initial step in the former
analytical process. 305 Kan. at 104-05. If an appellate court finds the challenged
argument to be prosecutorial error, it must then consider prejudice measured by the test
set out in Ward, 292 Kan. 541, Syl. ¶ 6, for constitutional error. The State, as the party
benefiting from the error, must demonstrate "'beyond a reasonable doubt'" that the
mistake "'did not affect the outcome of the trial'" taking account of the full trial record.
Sherman, 305 Kan. at 109 (quoting Ward, 292 Kan. 541, Syl. ¶ 6). That is, the appellate
court must determine if the error deprived the defendant of a fair trial—a constitutional
protection rooted both in due process and in the right to trial itself. Sherman, 305 Kan. at
98-99, 109.

In his closing argument, the prosecutor pointed out that Hashi and Jama
immediately called 911 to report a robbery and had been consistent with their overall
descriptions of the incident since then. He cited that as a reason for the jurors to find them
21

credible. To that extent, the argument seems unobjectionable. It is more or less a
contrapositive of the old saw that a liar can't keep the details of his or her lie straight in
repeated narrations. See State v. Finley, 273 Kan. 237, 246, 42 P.3d 723 (2002). But the
prosecutor then contrasted Hashi and Jama with Jenkins and Winters. He wove the
comparative credibility of the witnesses based on the timing of their versions of the
events deeply into his closing argument. He suggested the jurors should disbelieve
Jenkins and Winters because they didn't offer an explanation of the events—in particular
how Hashi's phone wound up in Winters' car—until "10 months later," meaning during
their trial testimony. He then pointed out that Hashi immediately spoke with the police
"right when this was happening" and told the jurors "that's why his story is the more
credible story in this circumstance."

But law enforcement officers informed Jenkins and Winters of their right to
remain silent shortly after the events, and they exercised that right. (That factual predicate
is undisputed on appeal.) The prosecutor effectively used their decisions then to later
attack their credibility in front of the jury. The courts have held that after government
agents advise suspects or witnesses of their right against self-incrimination, the
prosecution cannot use their silence in declining to answer questions to undermine their
trial testimony as a recent fabrication by arguing they had not disclosed their account
earlier. Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976)
(suspect later charged as defendant); State v. Kemble, 291 Kan. 109, 122, 238 P.3d 251
(2010); State v. Hazley, 28 Kan. App. 2d 664, Syl. ¶ 2, 19 P.3d 800 (2001) (witness).
Doing so is commonly called a Doyle violation in recognition of the United States
Supreme Court case holding the tactic to be a violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. See Doyle, 426 U.S. at 619.

In its most corrosive form, a Doyle violation entails the prosecutor cross-
examining a defendant at trial about why he or she didn't disclose that version of events
(or any version, for that matter) during an earlier interview with a law enforcement
22

officer, thereby suggesting silence then demonstrates the trial testimony to be unworthy
of belief. See Doyle, 426 U.S. at 613-14. But, as the Court pointed out, the silence could
just as likely be the product of the law enforcement officer's admonition to the defendant
that he or she had the right to decline to answer questions. The Court characterized the
circumstance as "insolubly ambiguous" and recognized it would be inherently unfair to
burden the exercise of that fundamental right by allowing the prosecution to use the
resulting silence to impeach the defendant on cross-examination or to assail his or her
credibility in closing argument. 426 U.S. at 614 n.5, 617-18.

Here, Jenkins bases his claim of error solely on the prosecutor's closing argument
that traded on an oblique use of Jenkins' and Winters' decisions not to speak with law
enforcement officers. The argument, nonetheless, sought to impeach Jenkins and Winters
because they exercised their constitutional right to remain silent after being informed of
the right. That creates a Doyle violation. Kemble, 291 Kan. at 121-22; Hazley, 28 Kan.
App. 2d at 670. It is, in turn, prosecutorial error.

A Doyle violation asserted as a ground for reversing a conviction is subject to
harmless error review. State v. Fisher, 304 Kan. 242, 248, 373 P.3d 781 (2016). A
finding of prosecutorial error under the Sherman test is similarly reviewed to determine if
the defendant's right to a fair trial has been compromised. In Sherman, the court,
however, also recognized that a prosecutor could be independently sanctioned if an error
were heedless or willful and sufficiently egregious to amount to "misconduct." And
sanctions would be warranted even if the misconduct did not otherwise deprive the
defendant of a fair trial. 305 Kan. at 114-15.

From our vantage point, Jenkins has failed to outline a Doyle violation that had a
meaningful impact on the jury verdict. The jurors had the opportunity to see the key
players testify under oath about what happened and to gauge their responses to cross-
examination about their respective versions. Those are the primary tools for assessing
23

credibility. See State v. Franco, 49 Kan. App. 2d 924, 936, 319 P.3d 551 (2014). The
prosecutor's argument based on the delay in Jenkins and Winters giving their accounts
necessarily would have had slight weight in comparison. Moreover, the comments were
not directly tied to trial testimony unlike Doyle, where the defendant objected both to his
cross-examination that highlight a specific interview he had with law enforcement
officers during which he declined to offer an exculpatory account and to a portion of the
prosecutor's closing argument drawing on the cross-examination. The closing argument
here was much more abstract and diffuse and, therefore, lacked the same impermissible
punch.[5]

[5]In this case, the prosecutor did not question Jenkins about his contact with the
police shortly after the incident. But the prosecutor's cross-examination of Winters did
bring out that she had invoked her right not to answer the police investigator's questions
and that she had not given an account of the incident until trial. Jenkins' trial lawyer did
not object to that line of questioning or the responses. As we have indicated, the
prosecutor did not refer to that testimony in his closing argument.

In Doyle, the Court left open whether a prosecutor's cross-examination of a
witness, other than the defendant, about his or her silence after being advised of the right
not to answer questions creates a constitutional error. See 426 U.S. at 616 n.6. In Hazley,
we found error as to witnesses. 28 Kan. App. 2d at 670. The Kansas Supreme Court has
acknowledged the legal determination in Hazley. State v. Wilkerson, 278 Kan. 147, 157,
91 P.3d 1181 (2004). Without a contemporaneous objection to the cross-examination of
Winters, Jenkins could not have premised a freestanding Doyle violation on that
exchange. See State v. King, 288 Kan. 333, 349-50, 204 P.3d 585 (2009). But the
substance of the questioning would bear on the potential prejudice of the prosecutor's
closing argument. See Fisher, 304 Kan. at 248 (harmlessness of Doyle violation assessed
based on "the record as a whole"); King, 288 Kan. at 349 (Doyle violation based on
prosecutor's closing argument may be considered on appeal absent contemporaneous
objection). On appeal, Jenkins has not mentioned, let alone relied on, the cross-
examination of Winters. We, therefore, have not done so.

For his second challenge to the prosecutor's remarks to the jury, Jenkins says the
same argument effectively shifted the burden of proof from the State to him. To outline
the obvious, defendants are presumed innocent in criminal cases, and the State must
prove them guilty beyond a reasonable doubt. See Taylor v. Kentucky, 436 U.S. 478, 485-
24

86, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978) (presumption and burden); Miller v. State,
298 Kan. 921, Syl. ¶ 5, 318 P.3d 155 (2014) (State's burden). Defendants have no
obligation to present evidence and carry no burden of proof. The State's obligation
implicates a defendant's constitutionally protected due process rights. Taylor, 436 U.S. at
485-86; State v. Switzer, 244 Kan. 449, 450, 769 P.2d 645 (1989). Just as obvious, a
prosecutor may not misstate the law in making a closing argument to jurors. See State v.
Tahah, 302 Kan. 783, 791, 358 P.3d 819 (2015), cert. denied 136 S. Ct. 1218 (2016);
State v. Huddleston, 298 Kan. 941, 953, 318 P.3d 140 (2014). So a prosecutor may not
suggest to a jury that the accused has an obligation to present some evidence of his or her
innocence, let alone to prove innocence. State v. Pribble, 304 Kan. 824, 837, 375 P.3d
966 (2016).

As we have already said, the prosecutor's argument was flawed. But the flaws do
not include some shift in the burden of proof from the State to Jenkins. The comments
did not suggest Jenkins had some obligation to come forward with evidence or that he
had failed to cross some evidentiary threshold with his evidence. Rather, the pitch
attacked the quality of the evidence Jenkins did produce as unworthy—albeit with an
impermissible legal argument. A prosecutor does not engage in burden-shifting by
pointing out reasons a defendant's evidence should be disbelieved. State v. Duong, 292
Kan. 824, 832-33, 257 P.3d 309 (2011). So there was no burden-shift here.

Finally, Jenkins says the prosecutor improperly expressed a personal opinion
about the credibility of witnesses. Lawyers generally (and prosecutors particularly)
cannot offer their personal views about the credibility of witnesses in making closing
arguments to a jury. See State v. Bridges, 297 Kan. 989, 1013, 306 P.3d 244 (2013); State
v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000).

Here, during part of his closing argument, the prosecutor told the jurors:

25

"Again, you have the testimony, not only of the victim in this case that it was taken by
force from him, but also the eye witness, Mr. Jama, who said—and even the third person
that the defense came up with, who said he was in that car. Which, the State—that's 10-
months later that that came up.
"So, the State has some question about the truthfulness in that regard, too."
(Emphasis added.)

The comment fairly amounts to an expression of opinion about the veracity of some of
the trial testimony. The prosecutor's use of "the State" didn't change the character of the
comment. In a criminal case, the prosecutor is the legal representative of the State, which
otherwise appears only as a disembodied presence, so the phrase amounts to the linguistic
equivalent of a first-person reference. See State v. Pabst, 268 Kan. 501, 506, 996 P.2d
321 (2000). The statement here also passed judgment on "the truthfulness" of certain
testimony. The comment, therefore, was error.

We cannot say the miscue had any discernible adverse impact on Jenkins' defense.
First, the comment was both brief and cryptic. This was not a case in which the
prosecutor offered a scorecard review of his personal opinion of the witnesses' credibility
or personally disparaged the defendant's veracity over and over again. See State v.
Elnicki, 279 Kan. 47, 67, 105 P.3d 1222 (2005); Pabst, 268 Kan. at 506. From the
remark, it's hard to tell exactly what the prosecutor was talking about. He appeared to be
suggesting he believed a portion of Omar's testimony was of doubtful credibility. Given
the fleeting nature and inexactness of the comment and Omar's secondary role in the
underlying events, we readily conclude the remark, though error, played no part in the
verdict.

We are unpersuaded that the prosecutor's closing argument deprived Jenkins of a
fair trial.


26

Cumulative Error

For his final point, Jenkins contends cumulative error deprived him of a fair trial.
Appellate courts will weigh the collective impact of trial errors and may grant relief if the
overall result of the imperfections deprives the defendant of a fair hearing even when the
errors considered individually could be considered harmless. State v. Smith-Parker, 301
Kan. 132, 167-68, 340 P.3d 485 (2014). An appellate court looks at the entire trial record
to assess the aggregate effect of multiple trial errors. 301 Kan. at 168.

We have identified only two errors: Those in the prosecutor's closing argument.
Although the Doyle violation is troubling by its very existence—a prosecutor should
refrain from that sort of argument—we could not say it somehow tipped the scales in this
case from not guilty to guilty. In turn, we found the prosecutor's comment asserting the
State's "question about . . . truthfulness" to be without meaningful impact on the outcome.
In combination, the two errors didn't make a difference in the verdict. In short, they had
no increased cumulative effect averse to Jenkins.

Affirmed.

* * *

MALONE, J., concurring. I concur in the result.