State v. Morgan

1

State of Kansas, Appellee, v. Blake Dean Morgan, Appellant.

No. 126,036

Court of Appeals of Kansas

August 30, 2024

NOT DESIGNATED FOR PUBLICATION

Submitted without oral argument.

Appeal from Riley District Court; KENDRA S. LEWISON, judge.

Randall L. Hodgkinson, of Kansas Appellate Defender Office for appellant.

David Lowden, deputy county attorney, Barry R. Wilkerson, county attorney, and Kris W. Kobach, attorney general, for appellee.

Before SCHROEDER, P.J., ISHERWOOD and PICKERING, JJ.

MEMORANDUM OPINION

PICKERING, J.

Blake Dean Morgan appeals his convictions for possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia after a jury trial. Morgan claims the district court erred in denying his challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's peremptory strike of a Hispanic juror during jury selection. After reviewing the record, we find no error and affirm Morgan's convictions.

MORGAN'S ARREST AND TRIAL

Riley County Police Officer Paul Terpstra stopped Morgan's car for a traffic violation. During the car stop, Terpstra smelled marijuana in the car, which provided probable cause to search Morgan's car. While searching the car, Terpstra found baggies of a crystalline substance and jars of a green leafy substance inside Morgan's backpack. The crystalline substance tested positive for methamphetamine, and the green leafy substance tested positive for marijuana. Terpstra also found unused baggies, a digital scale, and a metal grinder in Morgan's backpack. Elsewhere in the car, Terpstra found a hand-rolled marijuana cigarette and straws with white powdery residue.

The State charged Morgan with distribution or possession with intent to distribute methamphetamine; possession of drug paraphernalia-baggies and digital scale; possession of drug paraphernalia-rolling papers and grinder; and unlawful possession of marijuana. His criminal case proceeded to trial.

During jury selection for Morgan's trial, the prosecutor asked the jury pool who among them supported marijuana legalization. The prosecutor observed that "a lot" of people raised their hands. Throughout the rest of jury selection, the prosecutor called on five potential jurors to discuss why they supported marijuana legalization. One of those potential jurors who spoke was D.G., a Hispanic male. During peremptory strikes, the prosecutor struck those who spoke in support of marijuana legalization, including D.G.

Morgan launched a Batson challenge against striking D.G. on grounds of racial discrimination. The district court held a Batson hearing, where the prosecutor said that he struck D.G. because of D.G.'s statements supporting marijuana legalization. The district court stated that it would have found the prosecutor's justification as a "race-based reason" if only a few people had raised their hands to support marijuana legalization and the others had been struck. But because many people raised their hands and were not struck, the district court said that it was "not going to find that that's a race neutral reason." Neither counsel attempted to clarify or correct the court's conflicting statements. After that finding, the district court moved to the third Batson step and required Morgan to show purposeful discrimination by the prosecutor. The court found that Morgan failed to show purposeful discrimination because the prosecutor had struck all of the potential jurors he had called on to speak about supporting marijuana legalization and there were still minorities left in the juror pool.

After a two-day trial, the jury convicted Morgan of simple methamphetamine possession instead of possession with intent to distribute, possession of drug paraphernalia-rolling papers and grinder, and possession of marijuana. The jury acquitted Morgan of possession of drug paraphernalia-baggies and digital scale. The district court sentenced Morgan to a controlling sentence of 20 months in prison.

MORGAN CONTINUES WITH HIS BATSON CHALLENGE ON APPEAL

Preservation

Both Morgan and the State raise preservation issues which must be addressed. Morgan claims that he preserved the district court's erroneous Batson analysis for appeal because he entered the Batson challenge at issue and the district court denied the challenge. The State responds that because Morgan failed to contemporaneously object to the district court's Batson analysis to allow the court to cure his claim of error, Morgan failed to preserve this issue for appeal. The State cites State v McCullough, 293 Kan. 970, 270 P.3d 1142 (2012), and State v. Angelo, 287 Kan. 262, 197 P.3d 337 (2008), in support.

Although Angelo and McCullough both support a finding that Morgan failed to preserve this issue, in both cases the Supreme Court reached the merits of the appellants' unpreserved Batson claims. See McCullough, 293 Kan. at 993-95; Angelo, 287 Kan. at 272-75. Moreover, other panels of this court have also discussed the merits of unpreserved Batson claims. See State v. Villa-Vasquez, 49 Kan.App.2d 421, 435, 310 P.3d 426 (2013) (defendant did not object to district court's failure to complete third step of Batson analysis but panel proceeded to consider defendant's Batson challenge); State v. Williams, No. 102,615, 2010 WL 4156759, at *9 (Kan. App. 2010) (unpublished opinion) (same).

Without a defendant challenging a district court's analysis under Batson, a trial court does not have the opportunity to cure the defect. McCullough, 293 Kan. at 994. The McCullough court noted that even if the issue had been preserved, the defendant's claim failed because the district court's analysis was correct. Noting this, we review the merits of Morgan's Batson challenge.

Standard of Review

Challenges to the State's peremptory strikes under Batson are analyzed in three steps. Each step has its own standard of review. The district court's ruling at the first Batson step is subject to unlimited review. The district court's rulings at the second and third Batson steps are reviewed for abuse of discretion. State v. Brown, 314 Kan. 292, 298, 498 P.3d 167 (2021). The district court abuses its discretion if its decision is: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Bilbrey, 317 Kan. 57, 63, 523 P.3d 1078 (2023). "An appeals court looks at the same factors as the trial judge, but is necessarily doing so on a paper record[,]" so review of factual determinations in a Batson hearing is "'highly deferential.'" Flowers v. Mississippi, 588 U.S. 284, 303, 139 S.Ct. 2228, 204 L.Ed.2d 638 (2019).

Analysis

"'[I]n reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.'" Foster v. Chatman, 578 U.S. 488, 501, 136 S.Ct. 1737, 195 L.Ed.2d 1 (2016). The Foster Court further stated: "As we have said in a related context, '[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial . . . evidence of intent as may be available.'" 578 U.S. at 501. With that in mind, we review the district court's ruling based on the Batson three-step inquiry.

Under the first Batson step, the district court must determine whether the challenging party has made a prima facie showing of racial discrimination. If the challenging party establishes a prima facie case, the second Batson step requires the striking party to articulate a race-neutral nondiscriminatory reason for striking the juror at issue. The striking party satisfies this step if its reason is facially race neutral, even if it is not plausible or persuasive. If the striking party satisfies the second Batson step, the third Batson step requires the challenging party to show that the striking party's race-neutral reason is pretext for racial discrimination. At this step, the district court must assess the plausibility of the striking party's race-neutral reason in light of all the evidence. While the burden of production shifts between the first and second Batson steps, the challenging party always has the burden of persuasion. Brown, 314 Kan. at 297-98.

Courts may consider factors such as whether white jurors were struck for the same reason as minority jurors and whether other minorities remain on the jury when examining whether racial discrimination was a motivating factor for a peremptory strike. See State v. Angelo, 287 Kan. 262, 274, 197 P.3d 337 (2008); State v. Williams, 308 Kan. 1320, 1331, 429 P.3d 201 (2018) (whether other minorities remain on jury).

Morgan's Batson Analysis Argument

Morgan claims that because the district court stated that the prosecutor failed to produce a race-neutral reason for striking D.G. but still required him to show pretext under the third Batson step, the court committed structural error. Morgan asserts that, instead, the district court should have sustained his Batson challenge at the second step. Morgan asks us to reverse and remand for a new trial. The State counters that the district court did not unequivocally find that the prosecutor failed to articulate a race-neutral reason for striking D.G.

The State's Batson Analysis Argument

The State argues that, during the second step, the district court erred in its credibility finding of the prosecutor's reason for striking D.G. rather than making the finding that the prosecutor's reason "was race-neutral on its face" and then proceeding to the third Batson step. The State asks us to review the district court's second-step analysis under any of the three preservation exceptions. The State contends that we can review whether the prosecutor articulated a facially race-neutral reason for...