State v. Marbley

882 P.2d 1004, 20 Kan. App. 2d 34, 1994 Kan. App. LEXIS 110
CourtCourt of Appeals of Kansas
DecidedOctober 21, 1994
DocketNo. 69,574
StatusPublished
Cited by2 cases

This text of 882 P.2d 1004 (State v. Marbley) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Marbley, 882 P.2d 1004, 20 Kan. App. 2d 34, 1994 Kan. App. LEXIS 110 (kanctapp 1994).

Opinion

Briscoe, C.J.:

Dennis Marbley appeals his convictions of robbery (K.S.A. 21-3426) and attempting to elude a police officer (K.S.A. 8-1568). He argues the trial court erred in allowing the State to use a peremptory challenge to strike the only black juror on the panel, and that the court erred in failing to instruct on the lesser included offense of theft by threat.

[35]*35Marbley entered an Amoco station in Overland Park at approximately 1:20 a.m. on November 5, 1991, and purchased some cigarettes. When the clerk reached under the counter to get a roll of quarters, Marbley took money from the cash drawer. Marbley had his right hand in his pocket during the entire incident, and the clerk thought he was holding a gun in his pocket. In response to Marbley’s questioning, the clerk told Marbley there was no other money in the store. Marbley fled in his car and was apprehended after a car chase. No weapon was found. Marbley was charged with aggravated robbery and attempting to elude a police officer.

During voir dire, the prosecutor asked if anyone on the panel had any reason to believe his or her ability to be fair might be affected. The only black juror on the panel stated she was aware of the racial issues dealing with crime victims locally and nationally. She stated she was a social worker for the public schools and would feel some affiliation toward Marbley because they were both of the same race. However, she stated she could be fair. When questioned by defense counsel, the black juror indicated she was aware more black males are arrested for crimes, but that such knowledge would not affect her ability to hear the case and she would look at the facts presented.

The prosecutor attempted to peremptorily strike the black juror, stating:

“First of all, irregardless of her race, she is a social worker. Prior to knowing that, it was my — at least that raises a question in my mind in that social workers tend to be — at least our perception is that they tend to be persons who are involved in empathetic positions and that they naturally will tend to identify with a criminal suspect. That would be at least one reason.
“Also, I think she was very candid in her answers indicating that she would have a tendency to identify with the defendant because of his race and her race. She did say that she would try to set that aside, but I think she was candid in saying that that would be a natural tendency that she would have.
“Thirdly, she indicated on the situation as far as being aware of certain statistics that more black men are brought up for charges and more black men are arrested. What I hear in that statement is an idea that perhaps black men are being picked on by the system. She didn’t say more black men commit crimes; she said more black men are charged with crimes. I believe while it may not have been enough to strike her for cause, because she said, ‘I’ll try to [36]*36set those things aside,’ I think it certainly provides an adequate basis for a peremptory strike.”

Defense counsel objected, stating the reasons articulated by the prosecutor were not race neutral. The trial court allowed the black juror to be struck. Marbley moved for a mistrial, which was denied.

On appeal, Marbley argues the trial court erred in allowing the State to peremptorily strike the only black juror on the panel, arguing the reasons were not race neutral.

“In Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court held that the striking of black venire members based on racial grounds or the belief that black jurors will be sympathetic to a defendant of their own race violates the Equal Protection Clause of the United States Constitution.” State v. Sledd, 250 Kan. 15, 19, 825 P.2d 114, cert. denied 121 L. Ed. 2d 98 (1992).

In order to question the State’s use of peremptoiy challenges, a defendant must make a prima facie showing of purposeful discrimination. The defendant is entitled to rely on the fact that peremptory challenges permit those who wish to discriminate to do so and must show that these facts and any other relevant circumstances raise an inference that the prosecutor used the practice to eliminate prospective jurors because of their race. Sledd, 250 Kan. 15, Syl. ¶ 1.

Once a defendant has made a prima facie showing of purposeful discrimination, the burden shifts to the State to come forward with a race-neutral explanation for the challenge. The explanation need not rise to the level of justifying an exercise of a challenge for cause, but the prosecutor may not rebut the prima facie case by stating the juror was challenged on the assumption the juror would be partial to the defendant because of shared race. Smith v. Deppish, 248 Kan. 217, 227, 807 P.2d 144 (1991).

“Appellate review of a trial court’s determination relative to whether or not the prima facie showing required by Batson v. Kentucky, 476 U.S. 79, 96, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), has been made is plenary as it involves a question of legal sufficiency. In contrast, appellate review of a trial court’s acceptance of the State’s announced reasons for removal of a juror as being racially neutral is on the basis of abuse of discretion.” Sledd, 250 Kan. 15, Syl. ¶2.

[37]*37Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. Smith, 248 Kan. 217, Syl. ¶ 2.

Here, the prosecutor offered three reasons to strike the black juror. One of those reasons, that she was a social worker, is race neutral on its face. The other reasons take race into account and might run afoul of Batson v. Kentucky, 476 U.S. 79, 96, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Marbley alleges that since the trial court did not state which reason it relied on in denying Marbley’s motion for a mistrial, the case must be reversed unless all of the reasons were race neutral.

Marbley cites People v. Fuentes, 54 Cal. 3d 707, 286 Cal. Rptr. 792, 818 P.2d 75 (1991), in support of his argument. A close reading of Fuentes, however, reveals that it stands for the proposition that the court must make sure every peremptory challenge is justified by a race-neutral reason rather than that every reason put forth must be race neutral.

In Vann v. State, 788 S.W.2d 899, 905 (Tex. App. 1990), the court found that when a prosecutor gives more than one reason for exercising a peremptory strike, the trial court must review every reason for the strike. In Whitsey v. State, 796 S.W.2d 707, 713 (Tex. Crim. 1989), which was cited in Vann,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Sandifer
17 P.3d 921 (Supreme Court of Kansas, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
882 P.2d 1004, 20 Kan. App. 2d 34, 1994 Kan. App. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marbley-kanctapp-1994.