State v. Brown

498 P.3d 167

STATE of Kansas, Appellee,

v.Maurice A. BROWN, Appellant.

No. 120,590

Supreme Court of Kansas.

Opinion filed November 12, 2021.

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, argued the cause, and Jennifer C. Bates and Sam Schirer, of the same office, were on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Wall, J.:

A jury convicted Maurice A. Brown of two counts of aggravated robbery and eight counts of kidnapping in connection with the robbery of two Red Skye Wireless phone stores in Wichita. The district court imposed a presumptive 200-month prison sentence and ordered Brown to pay restitution. The Court of Appeals affirmed Brown's convictions and his restitution order, but it vacated the sentence after concluding that the district court had erroneously classified Brown's prior Michigan juvenile adjudication for armed robbery as a person felony. State v. Brown , No. 120,590, 2020 WL 1897361, at *7, 10 (Kan. App. 2020) (unpublished opinion).

Brown petitioned for our review, arguing the Court of Appeals erred in affirming his convictions and rejecting other constitutional challenges to his sentence and restitution order. More specifically, Brown contends the Court of Appeals erred in affirming his convictions because the State exercised peremptory challenges based on the race of prospective jurors, violating his equal protection rights guaranteed under the Fourteenth Amendment to the United States Constitution. Brown also claims that his sentence, imposed under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq., violates section 5 of the Kansas Constitution Bill of Rights because the KSGA permits a district court judge (rather than a jury) to make criminal history findings for purposes of sentencing. Finally, Brown argues Kansas' criminal restitution scheme violates his jury trial rights under section 5 and the Sixth Amendment to the United States Constitution because the scheme authorizes a district court judge to determine restitution damages.

After a thorough review of these issues, we conclude that Brown failed to carry his burden to prove intentional discrimination in the State's exercise of peremptory challenges, as required under the burden-shifting framework established in Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Moreover, Brown's constitutional challenges to his sentence and restitution order are resolved by our recent opinions addressing identical claims. Specifically, in State v. Albano , 313 Kan. 638, 657, 487 P.3d 750 (2021), we held the KSGA does not violate section 5. Moreover, in State v. Arnett , 314 Kan. ––––, 496 P.3d 928, 933–34 (2021), we held that Kansas' criminal restitution scheme does not violate the Sixth Amendment. Though the restitution scheme does implicate section 5, we concluded that the offending provisions are severable. 314 Kan. at ––––, 496 P.3d at 936–38. And once the unconstitutional provisions are severed, the original restitution order satisfies constitutional scrutiny. 314 Kan. at ––––, 496 P.3d at 937–38.

Accordingly, we affirm the decision of the Court of Appeals and remand the case to the district court for resentencing consistent with that opinion.

FACTS AND PROCEDURAL BACKGROUND

The Court of Appeals outlined the facts related to Brown's crimes of conviction. Brown , 2020 WL 1897361, at *1. We need only briefly highlight those facts relevant to the procedural development of Brown's Batson challenge, given the nature of the issues Brown raised in his petition for review.

Jury selection for Brown's trial began in late October 2018. After two days of voir dire, the State used five of its eight peremptory challenges to strike four African-American prospective jurors and one mixed-race prospective juror from the jury panel. In response, Brown (who is African-American) raised a Batson challenge, arguing the State's racially motivated intent was evident from the sheer number of minority jurors the State had excluded. In response, the State offered several race-neutral reasons for these strikes. The district court found that the statements and actions of the prospective jurors supported the State's race-neutral explanations and concluded that Brown had failed to prove intentional discrimination.

Brown renewed the Batson challenge in his motion for new trial, which the district court took up at sentencing. Brown reiterated his claim that the number of minority jurors excluded demonstrated that the State exercised its peremptory challenges based on race. The State advanced the same race-neutral explanations for striking these prospective jurors (four African-American prospective jurors and one mixed-race prospective juror) and further observed that three Hispanic jurors served on the jury and one African-American had served as an alternate juror. The district court upheld its previous ruling on the Batson challenge.

In imposing sentence, the district court determined that Brown had a criminal history score of D based on his prior convictions, which included a prior Michigan juvenile adjudication for armed robbery that the district court classified as a person felony for sentencing purposes. The district court sentenced Brown to 200 months in prison and ordered him to pay over $83,000 in criminal restitution.

Before the Court of Appeals, Brown argued that the district court had erred in denying his Batson challenge, and for the first time on appeal, he challenged the constitutionality of his sentence and restitution order. Brown also argued that the district court had incorrectly calculated his criminal history score, rendering his sentence illegal.

The Court of Appeals concluded that Brown's illegal sentence claim was meritorious and thus vacated the sentence and remanded the matter for resentencing. 2020 WL 1897361, at *7, 10. But the panel rejected Brown's arguments regarding his Batson challenge and the constitutionality of his sentence and restitution order. 2020 WL 1897361, at *4, 8-10.

Brown timely petitioned for review, and we granted review of all three claims the Court of Appeals rejected. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review.).

ANALYSIS

I. Brown Failed to Demonstrate that the District Court Erred in Denying the Batson Challenge

Brown contends the district court and Court of Appeals erred in denying his Batson challenge because the State exercised its peremptory strikes to remove all African-American prospective jurors and one mixed-race prospective juror. Brown also claims the State offered an inherently discriminatory reason for striking one of those jurors. He contends these facts, along with other statistical data, demonstrate that the State exercised its peremptory strikes with discriminatory intent. The State contends the district court did not abuse its discretion in determining that the challenged peremptory strikes were constitutionally permissible because Brown failed to meet his burden to show purposeful discrimination.

A. Legal Framework and Standard of Review

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the State from using peremptory strikes to remove prospective jurors based on their race. Batson , 476 U.S. at 89, 106 S.Ct. 1712. If a defendant suspects the State has used its peremptory strikes in a racially discriminatory manner, he or she may challenge those strikes under Batson .

When a Batson challenge is asserted, the issue is analyzed under a three-step process. First, a defendant objecting to the State's exercise of peremptory challenges "must first establish a prima facie case of purposeful discrimination during jury selection by demonstrating that relevant circumstances raise an inference that the State exercised peremptory challenges based upon the prospective juror's race." State v. Bolton , 271 Kan. 538, 540, 23 P.3d 824 (2001).

Second, if such a showing is made, the burden then shifts to the State to articulate a non-discriminatory reason for the challenged strike. State v. Angelo , 287 Kan. 262, 271, 197 P.3d 337 (2008). This step

"does not demand a prosecutor's explanation that is persuasive, or even plausible, but merely facially valid. Further, unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. Accordingly, the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. [Citations omitted.]" State v. Pham , 281 Kan. 1227, 1237, 136 P.3d 919 (2006).

Finally, " ‘[i]n the third step, the district court determines whether the opponent has carried the burden of proving purposeful discrimination.’ " State v. Gonzalez , 311 Kan. 281, 302, 460 P.3d 348 (2020). In other words, "once the prosecution offers a race-neutral explanation, the defendant bears the burden of showing pretext, which ‘requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it.’ [Citation omitted.]" State v. Gonzalez-Sandoval , 309 Kan. 113, 126, 431 P.3d 850 (2018). As with any equal protection claim, a defendant who lodges a Batson challenge has the burden to prove the existence of purposeful discrimination. 309 Kan. at 121, 431 P.3d 850 (quoting Batson , 476 U.S. at 93, 106 S.Ct. 1712 ).

On review, each of these steps is subject to its own standard of review. State v. Hill , 290 Kan. 339, 358, 228 P.3d 1027 (2010). "The standard of review of the first step—the prima facie showing on the basis of race—is a question of legal sufficiency subject to plenary review." Pham , 281 Kan. at 1237, 136 P.3d 919...