State v. Jackson

1

State of Kansas, Appellee, v. Shardell Shakur Jackson, Appellant.

No. 124,834

Court of Appeals of Kansas

February 9, 2024

NOT DESIGNATED FOR PUBLICATION

Oral argument held July 11, 2023.

Appeal from Shawnee District Court; CHERYL A. RIOS, judge.

Catherine A. Zigtema, of Zigtema Law Office, LC, of Shawnee for appellant.

Michael R. Serra, deputy district attorney, Michael F. Kagay district attorney, and Kris W. Kobach, attorney general, for appellee.

Before HILL, P.J., HURST, J., and TIMOTHY G. LAHEY, S.J.

MEMORANDUM OPINION

HURST, J.

A jury found Jackson guilty of attempted first-degree premeditated murder, criminal possession of a weapon, and criminal discharge of a firearm at an occupied dwelling after a drive-by shooting. Jackson alleges that improper prosecutorial statements and the district court's erroneous refusal to allow him to play a video about unconscious bias during voir dire breached constitutional safeguards and thus deprived him of a fair trial. Contrary to his contentions, this court finds the majority of Jackson's complaints unavailing and that any errors were individually and cumulatively harmless. Jackson's convictions are therefore affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On March 8, 2020, a white vehicle approached the victim, K.A., while he walked home. After a verbal exchange between K.A. and the vehicle's occupants, one of the occupants shot him. Surveillance cameras in the area captured the shooting on video. Shortly after the shooting, K.A. identified his shooter as "Shugg"-which is a known alias for Jackson-as the shooter.

The State first charged Jackson with one count each of aggravated battery, criminal discharge of a firearm at an occupied dwelling, and criminal possession of a weapon. Following some preliminary hearings, the State amended the complaint and added one count of attempted first-degree premeditated murder as an alternative to the aggravated battery charge and dismissed the criminal-possession-of-a-weapon charge.

Testimony Regarding the Make of the Car

At the preliminary hearing, a Topeka Police Department detective who participated in the investigation testified that the vehicle captured on the surveillance footage was determined to be a 2002 Mercedes. Prior to trial, Jackson moved to suppress testimony by law enforcement that "would attempt to identify the make and model of a vehicle in any photographs or video surveillance as a Mercedes," arguing that the testimony would constitute improper opinion testimony under K.S.A. 2022 Supp. 60-456(a). The district court denied the motion, explaining:

"I believe that the detective can testify as to what he observed, what he saw .... ....

"[The detective] can testify as to all of those things that he saw and did related to his investigation. Those are all facts that he can testify to.

". . . [The detective] can testify as to all of the things that he saw and observed. I think he can testify that he believes it's the same motor vehicle. And counsel for the defense can cross-examine as to the strength of his belief. But I think that it is fair game for him to testify, given all of the facts that he has in addition to the investigation that informed his ultimate belief, that it was the same car that was driving. And also the same car at the defendant's grandmother's address.

"So I believe that he can testify as to all of the things that he saw, all of the things that he did. I think he can testify that it is his belief that it was the same vehicle. And counsel can cross-examine him as to the, you know, the strength of that belief and that can be tested in front of the jury."

The Unconscious Bias Jury Video

Jackson also filed a pretrial motion requesting that all prospective jurors be shown an approximately 11-minute-long video addressing unconscious bias: Understanding the Effects of Unconscious Bias. The video was created by a committee of judges and attorneys from the United States District Court for the Western District of Washington. According to the video's creators, the purpose of presenting the video to jurors is "highlighting and combating the problems presented by unconscious bias." See United States District Court for the Western District of Washington, https://www.wawd.uscourts.gov/jury/unconscious-bias.

Jackson argued it was necessary to play the video to all prospective jurors because:

"People of color, particularly African Americans [sic] males, are sometimes treated unfairly in the criminal justice system. Statistics shows [sic] that African American [sic] are sentenced more frequently to prison, they receive higher prison sentences and bail amounts when comparing white defendants that commit [a] similar offense, especially when the offense is one of violence by a black defendant. The inequities in our justice system occur due to biases.

"Defense counsel understands that she can explore issues of race without the presentation of [the video]. But, she believes the video should be presented through a neutral process, as she has witnessed and personally experienced implicit bias and microaggressions while practicing in Shawnee County. So it stands to reason that individuals, like prospective jurors, even with their best intentions may use unconscious actions against the defendant or his counsel if they are not made aware of their predilections."

Jackson further argued that presenting the video to prospective jurors would "not cause harassment or delay" and that the video would present general information about bias and impartiality and would not be repetitive.

The State opposed Jackson's request and argued that the "question of racial bias is best addressed" in direct questioning by counsel "where jurors can respond and interact with counsel" rather than through a static video. The district court ultimately denied Jackson's motion, explaining:

"The Court believes that it is important during voir dire for the parties to address any bias, and all bias, of potential jurors. And the Court believes that it is an effective way, or can be an effective way to accomplish that through individual, by the attorneys, questioning jurors with regard to those potential biases.

"And at this point, I'm not believing that the video that has been presented would necessarily help the jury in coming to that conclusion any better than defendant's own ability to question and voir dire candidates for the jury. So therefore, the motion to present a video during orientation during this particular trial is denied."

Jackson directly questioned potential jurors about bias during voir dire.

Evidence Presented Supporting Jackson's Conviction

In his trial testimony, K.A. identified the defendant as the shooter and testified that he and the defendant had a prior altercation. Moreover, a detective involved in the investigation testified at trial about how he determined that the white car captured on the surveillance footage was the same white car found outside the defendant's residence. After the jury was shown the surveillance footage and a picture of the car found outside the defendant's residence, the detective explained that the two cars had the same sunroof, rounded headlights, rims, tail lights, brake lights, antenna mount, and rust lines. Another officer testified that during a search of the car found outside the defendant's residence, an officer discovered a handgun in the glovebox. A forensic scientist with the Kansas Bureau of Investigation (KBI) testified that the major DNA profile obtained from the swab of the handgun was consistent with the known DNA profile of the defendant. A firearms and toolmark examiner with the KBI also testified that the fired shell cartridges recovered from the crime scene were fired from the handgun discovered in the car outside the defendant's residence.

Verdict

After hearing all the evidence, the jury convicted Jackson on all counts. The district court vacated the sentence for the alternative charge of aggravated battery and imposed the presumptive prison sentence on the two remaining charges to run concurrently, resulting in a controlling prison term of 253 months. Jackson appeals.

DISCUSSION

Jackson makes two overarching claims of reversible error: First prosecutorial error during voir dire, opening statement, and closing argument deprived him of a fair trial; and second, the court's refusal to show the jury a video about unconscious bias deprived him of a fair trial. Each claim is addressed in turn.

I. PROSECUTORIAL ERROR DID NOT DEPRIVE JACKSON OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL

"The right to a fair trial is a fundamental liberty secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution." State v. Sherman, 305 Kan. 88, Syl. ¶ 1, 378 P.3d 1060 (2016). Jackson alleges the prosecutor committed reversible error by (1) improperly eliciting sympathy from the jury; (2) violating in limine orders; (3) misstating the law; (4) stating personal opinion on evidence; and (5) improperly arguing facts not in evidence.

Jackson failed to contemporaneously object to any of the allegedly erroneous prosecutorial statements, but that failure does not preclude appellate review of such alleged errors. However, on appeal, this court may "figure the presence or absence of an objection into [its] analysis of the alleged error." State v. Bodine, 313 Kan. 378, 406, 486 P.3d 551 (2021). This court applies "a two-step analysis to evaluate claims of reversible prosecutorial error. These two steps can and should be simply described as error and prejudice." Sherman, 305 Kan. 88, Syl. ¶ 6. First, this court determines whether the allegedly erroneous statements "fall outside the wide latitude afforded prosecutors to conduct the State's case...