State v. Buie

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NOT DESIGNATED FOR PUBLICATION

No. 115,230

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FRANKIE EUGENE BUIE,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed February 3,
2017. Affirmed.

Craig A. Lubow, of Kansas City, for appellant.

Edmond Brancart, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., POWELL, J., and HEBERT, S.J.

Per Curiam: In April 2010, Frankie Eugene Buie was convicted by a jury of
aggravated robbery. Upon direct appeal of his conviction, this court rejected Buie's
claims that his speedy trial rights had been violated and the trial court had given an
erroneous jury instruction. However, this court held that the district court erred in not
requiring the State to provide race-neutral explanations for the preemptory strikes of four
jurors which Buie had questioned. The case was remanded with directions for the district
court to conduct a hearing pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
990 L. Ed. 2d 69 (1986). See State v. Buie, No. 106,156, 2013 WL 678219, at *7-9 (Kan.
App. 2013) (unpublished opinion), rev. denied 297 Kan. 1248 (2013).
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The hearing on remand took place in March 2014, with the same trial judge and
prosecutor but with a new lawyer for Buie. Although the trial judge and the prosecutor
again expressed misgivings regarding the sufficiency of Buie's original motion to invoke
the Batson rules for requiring race-neutral explanations of the State's preemptory strikes,
the court proceeded to conduct a hearing pursuant to the remand mandate.

The State presented its rationale for each of the four strikes challenged by Buie.
Buie's counsel then argued that those reasons were insufficient. The district court ruled
that each of the State's proffered explanations were sufficient to overcome Buie's
allegations of racial discrimination and denied the Batson challenges. Buie timely
appealed from this ruling.

The District Court Reasonably Concluded that the Prosecutor's Peremptory Strikes Were
Not Racially Motivated.

Buie argues on appeal that the district court abused its discretion when it
concluded that the State's race-neutral reasons were sufficient to overcome his challenge
alleging that the prosecutor struck four potential jurors based on racial discrimination.

The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution bars racial discrimination in jury selection, including when a party exercises
its peremptory challenges to potential jurors. State v. Dupree, 304 Kan. 43, 57, 371 P.3d
862 (2016); State v. Kettler, 299 Kan. 448, 461-62, 325 P.3d 1075 (2014). This means
that although a party can generally use peremptory strikes to remove a certain number of
potential jurors for any reason, without providing those reasons to the court or anyone
else, a party cannot exercise peremptory strikes based on a juror's race. When a party
alleges that the other side's peremptory strike was racially motivated, it is called a
"Batson challenge" because Kansas courts follow the guidelines that the United States
Supreme Court set out in the case of Batson v. Kentucky, 476 U.S. 79. Dupree, 304 Kan.
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at 57; see also Foster v. Chatman, 578 U.S. ___, 136 S. Ct. 1737, 1747, 195 L. Ed. 2d 1
(2016) (reaffirming Batson guidelines). A distinct standard of review governs each step
of the analysis:

"'First, the party challenging the strike must make a prima facie showing that the
other party exercised a peremptory challenge on the basis of race. Appellate courts utilize
plenary or unlimited review over this step. [Citation omitted.]
"'Second, if a prima facie case is established, the burden shifts to the party
exercising the strike to articulate a race-neutral reason for striking the prospective juror.
This reason must be facially valid, but it does not need to be persuasive or plausible. The
reason offered will be deemed race-neutral unless a discriminatory intent is inherent in
the explanation. The opponent of the strike continues to bear the burden of persuasion.
[Citation omitted.]
"'Third, the trial court must determine whether the objecting party has carried the
burden of proving purposeful discrimination. This step hinges on credibility
determinations. "[U]sually there is limited evidence on the issue, and the best evidence is
often the demeanor of the party exercising the challenge. As such, it falls within the trial
court's province to decide, and that decision is reviewed under an abuse of discretion
standard." [Citations omitted.]' Kettler, 299 Kan. at 461-62." Dupree, 304 Kan. at 57-58.

Here, the State first argues that Buie did not present a prima facie showing of
racial discrimination. The State made this same argument in Buie's first appeal and in a
motion to reconsider the decision in that appeal. See Buie, 2013 WL 678219, at *7-9.
Under the law-of-the-case doctrine, an issue that has been previously decided by an
appellate court should not be reconsidered in a subsequent appeal in the same case unless
it is clearly erroneous or would cause some manifest injustice. Venters v. Sellers, 293
Kan. 87, 99, 261 P.3d 538 (2011) (quoting State v. Collier, 263 Kan. 629, Syl. ¶ 3, 952
P.2d 1326 [1998]). This court has previously decided this issue against the State, and the
State has not pointed to any manifest injustice that has resulted or will result from
following that earlier ruling. See Buie, 2013 WL 678219, at *7-9. This court need not
address the State's argument on this issue—it is the law of the case that Buie presented a
prima facie showing of racial discrimination.
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Moving on to steps two and three—at the Batson hearing the prosecutor provided
race-neutral reasons for each of the four challenged strikes, and Buie responded with
reasons that the strikes were nonetheless discriminatory. Juror No. 24 was the
prosecutor's second peremptory strike, and the prosecutor gave these reasons for the
strike: The juror had been to the store where Buie's crime happened, the juror had been
the victim of a burglary, and the juror may have had problems with literacy. Buie's
lawyer pointed out that the prosecutor did not strike a white juror who had also been to
the store. The judge noted that the prosecutor's statements matched his trial notes and
found that the race-neutral reasons were valid. This decision was not unreasonable. It is
true that "[i]f a prosecutor's proffered reason for striking a black panelist applies just as
well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is
evidence tending to prove purposeful discrimination." Miller-El v. Dretke, 545 U.S. 231,
241, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); see State v. Davis, 37 Kan. App. 2d 650,
664, 155 P.3d 1207 (2007). But here, juror No. 24 had also been the victim of a crime
and had literacy issues, which distinguished him from the white juror Buie's lawyer used
for comparison.

The prosecutor struck juror No. 3 with his fourth peremptory strike. The
prosecutor stated that he struck this juror because he had been inside the convenience
store where Buie was arrested—a store (different from the store where Buie's crime took
place) that is known for selling drug paraphernalia. Buie's lawyer argued that several
non-African-American jurors with similar backgrounds to juror No. 3 were not struck,
but the district court found that the prosecutor's race-neutral reason was valid. This
decision was not unreasonable; the judge was free to accept the prosecutor's implication
that he wanted to strike a juror who admitted to visiting a store that was connected to the
crime and that also sold drug paraphernalia, and that particular reason did not apply to
any of the jurors Buie's lawyer offered in comparison.

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The prosecutor struck juror No. 9 with his fifth peremptory strike. For this juror,
the prosecutor simply said that the juror did not have any of the attributes that he was
looking for in jurors and that the juror expressed some hostility to being on a jury. Buie's
lawyer again argued that some similar non-African-American jurors were not struck, and
the district court again did not find that persuasive and accepted the prosecutor's race-
neutral reason. It wasn't unreasonable for the district court to accept the prosecutor's
determination that the juror appeared hostile to being on a jury, and Buie's lawyer did not
suggest that the jurors he offered in comparison were similarly hostile.

The prosecutor struck juror No. 29 with his seventh peremptory strike, stating he
struck this juror because he had been to the intersection where Buie was arrested and
because he was 13 years younger than his wife, which he considered an unusual spousal
age gap. Buie's lawyer noted one more time that other non-African-American jurors with
similar characteristics were not struck and that the spousal age difference was "grasping
for straws." But the district court did not find Buie's lawyer's argument persuasive and
upheld the strike. Again, the district court's decision was not unreasonable; the
prosecutor's reason only needs to be facially valid, not persuasive or plausible. See
Dupree, 304 Kan. at 58. Buie's response to this race-neutral reason was particularly weak,
and it was Buie's burden to persuade the judge that the strike was based on racial
discrimination. See 304 Kan. at 58.

Additionally, the sequence of the strikes did not suggest a racial motive: the
prosecutor did not use his first or last strike against an African-American, and he used
only four of his nine peremptory strikes against African-Americans. The prosecutor had
no history of or reputation for racial discrimination in jury selection. The judge stated that
he had not noticed a pattern of discrimination in this trial or in any of the prosecutor's
earlier trials. On these facts, the district court did not abuse its discretion in denying
Buie's Batson challenge. The State provided facially valid race-neutral reasons for its
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strikes, and a reasonable person could agree with the district court's conclusion that the
four challenged peremptory strikes were not based on racial discrimination.

Buie makes two other arguments. First, he claims that Foster, 136 S. Ct. at 1754-
55, a recent United States Supreme Court case, determines the outcome of this case. But
in Foster, while the Court did find a Batson violation, it did so by reaffirming the Batson
rules and applying them to very different factual circumstances in which the defendant
presented compelling evidence of racial discrimination based on the prosecutors' trial
notes. No such evidence exists here. Second, Buie argues that this court should require
the prosecutor's race-neutral reasons to be both plausible and credible. But this court is
duty-bound to follow the Kansas Supreme Court, which requires only that the race-
neutral reasons be facially valid, not persuasive or plausible. Dupree, 304 Kan. at 58.

The judgment of the district court denying Buie's Batson challenge is affirmed,
with the result that Buie's conviction is also upheld and affirmed.

Affirmed.