State v. Perez-Mares

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NOT DESIGNATED FOR PUBLICATION

No. 119,632

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

REYNALDO PEREZ-MARES a/k/a STEVEN TRUJILLO,
Appellant.

MEMORANDUM OPINION


Appeal from Ford District Court; VAN Z. HAMPTON, judge. Opinion filed April 19, 2019.
Affirmed.

Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before ARNOLD-BURGER, P.J., PIERRON, J., and MCANANY, S.J.

PER CURIAM: Before trial, Reynaldo Perez-Mares moved to discharge the jury
venire for systematic underrepresentation of Hispanics in jury venires in Ford County.
The district court incorporated its findings in 17CR354, State v. Miguel Angel Perez (now
appellate case No. 119,336), and denied the motion. Perez-Mares appeals.

FACTS

On May 3, 2017, the State charged Perez-Mares with driving under the influence
(DUI), driving without a valid driver's license, and transporting an open container for an
incident that occurred two weeks prior. In a bench trial before the magistrate judge, on
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November 3, 2017, the district court found Perez-Mares guilty of DUI and transporting
an open container and not guilty of driving without a valid driver's license. On December
15, 2017, the court sentenced him to 1 year of probation with an underlying sentence of
120 days in jail with all but 5 days suspended. The court also imposed fines of $1,450.
Perez-Mares timely filed a notice of appeal to the district court pursuant to K.S.A. 2018
Supp. 22-3609a.

Perez-Mares filed a timely request for a jury trial under K.S.A. 2018 Supp. 22-
3609a(5). The day before the jury trial, Perez-Mares filed a preemptive four-part motion,
requesting (1) to discharge the jury venire; (2) a hearing on venire selection; (3) a
continuance without a speedy trial waiver; and (4) to seal the motions.

The district court did not hear Perez-Mares' motion, but rather incorporated its
findings, order, and transcript from the February 1, 2018 motion hearing in 17CR354,
State v. Miguel Angel Perez (appellate case No. 119,336), as the prosecutor, defense
counsel, and issue were the same. The court denied Perez-Mares' motion.

The jury ultimately found Perez-Mares guilty of DUI, driving without a valid
license, and transporting an open container following a trial on stipulated facts. After the
verdict, Perez-Mares renewed his objection to the jury process. The district court
sentenced Perez-Mares to 1 year of probation with an underlying sentence of 120 days,
with all but 5 days suspended. Of the 5 days, Perez-Mares had to serve 48 consecutive
hours in jail and the remaining days could be served as arranged by Perez-Mares either in
jail on house arrest, or at work release. The court also ordered $1,650 in fines.

LEGAL ANALYSIS

We begin by noting the district court fully incorporated the arguments of the
parties and the court's ultimate holdings in another case decided this date involving the
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same prosecutor, defense attorney, and we will do the same for purposes of appellate
review. See State v. Miguel Angel Perez (appellate case No. 119,336).

On appeal, Perez-Mares argues that he met his burden of making a prima facie
showing of a continuing trend of underrepresentation of Hispanics in jury venires in Ford
County. He asserts his claims satisfied the three factor test set out in Duren v. Missouri,
439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979) and the district court should
have given him the opportunity to explore the root cause of the racial disparity. He asks
us to reverse the district court's findings and remand the case for an evidentiary hearing
on the matter.

Standard of Review

Perez-Mares argues that resolution of his argument involves a mixed question of
fact and law. When reviewing a mixed question of fact and law, an appellate court
applies a bifurcated review standard. This court generally reviews the district court's
factual findings under the substantial competent evidence standard. Its conclusions of law
based on those facts are subject to unlimited review. State v. Miller, 293 Kan. 535, 547,
264 P.3d 461 (2011).

The State, however, claims we must use the negative factual finding standard.
Perez-Mares moved for discharge of the jury venire, under K.S.A. 22-3407, which
imposes an affirmative duty on the movant to show improper selection in the jury venire.
The district court's finding that Perez-Mares did not meet his burden was a negative
factual finding. When reviewing a negative factual finding, the appellate court must
consider whether the district court arbitrarily disregarded undisputed evidence or relied
upon some extrinsic consideration such as bias, passion, or prejudice to reach its decision.
State v. Smith, 303 Kan. 673, 679, 366 P.3d 226 (2016).

We need not decide which position is correct, because under both standards, the
result is the same.
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The Exclusion of Jurors on the Basis of Race or National Origin

Under the Sixth Amendment to the United States Constitution, in criminal
prosecutions, "the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed."
According to the K.S.A. 43-155, it is the public policy of the State of Kansas "that jury
service is the solemn obligation of all qualified citizens." Jurors must "be a citizen of the
state, resident of the county and possess the qualifications of an elector," and potential
jurors cannot be excluded from service "on account of race, color, religion, sex, national
origin, or economic status." K.S.A. 43-156. The United States Supreme Court has
determined a jury selection system violates the right to an impartial jury if the system
does not draw its jury venirepersons from a fair cross section of the community. Duren,
439 U.S. at 364; Taylor v. Louisiana, 419 U.S. 522, 529-30, 95 S. Ct. 692, 42 L. Ed. 2d
690 (1975).

"In order to establish a prima facie violation of the fair-cross-section
requirement, the defendant must show (1) that the group alleged to be excluded is a
'distinctive' group in the community; (2) that the representation of this group in venires
from which juries are selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process." Duren, 439 U.S. at 364.

The parties agree that the first prong of the test has been met. Hispanics are a distinctive
group in the community. Instead, the State contests Perez-Mares' claim to have satisfied
the second and third prongs.

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Whether Representation of Hispanics Is Fair and Reasonable In Relation to the Number
of Hispanics in the Community

Perez-Mares correctly asserts that the Sixth Amendment to the United States
Constitution required the jury venire be drawn from a source that is fairly representative
of the community. To support his assertion that they were not, Perez-Mares submitted the
2000 and 2010 U.S. Censuses to show Hispanics constituted 37.7% and 51.2% of the
Ford County residents, respectively. From the growth trend, he estimated the Hispanic
population by 2018 would have been at least 55%. Perez-Mares then provided 12 jury
venires from July 8, 2010, through May 25, 2017, cases defense counsel had been
involved in, and provided them as a sampling of venires in that timeframe. He
determined, based on Hispanic sounding names, Hispanics made up 50 out of 395 jurors
or about 12.7% of the Ford County jury venires. He calculated the absolute disparity, as
defined in United States v. Shinault, 147 F.3d 1266, 1271-72 (10th Cir. 1998) to be
38.5%. From that, he determined the comparative disparity, which measures the
decreased likelihood Hispanics would be called for jury service, was 75.2%. He asserted
thata 10% absolute disparity is generally a prima facie threshold in demonstrating a Sixth
Amendment violation.

The district court considered the data, noting that Hispanics were the largest group
in the area who are likely noncitizens. Jury duty requires citizenship, while the census
considers only residency. The court noted that even if resident noncitizens received jury
questionnaires, they would not be summoned as part of the venire. The court found that
though Perez-Mares' calculations showed an underrepresentation, it would be difficult to
prove the actual numbers, which would show a disparity based on juror qualifications.
Thus, the court held that the underrepresentation was neither unfair nor unreasonable.

The question is not simply whether disparity exists, but also whether the disparity
is unfair or unreasonable. In Duren, the defendant presented weekly jury venires for
nearly a year to show the underrepresentation of women in the venires was consistent.
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439 U.S. at 362. Perez-Mares presents only 12 venires from a 7-year period with no
explanation of how many venires had been created in that time or how his evidence
shows consistency of the underrepresentation. He doubts that those 12 venires were
anomalies but provides nothing to support that assertion.

The Kansas Legislature also requires that jurors be citizens of the state, residents
of the county, and qualified as an elector. And although the 2010 U.S. Census provided
ethnicity and residence, it did not provide citizenship of the residents. Perez-Mares does
not suggest what percentage of the population could qualify as venirepersons. The district
court pointed out that the jury venire was a result of jury questionnaires returned and
Perez-Mares failed to present any evidence regarding a difference between questionnaires
sent out and those returned or those returned with hardship requests granted.

Though Perez-Mares' evidence suggests a large disparity, he provided no concrete
numbers proving the disparity or how such disparity would be unfair or unreasonable. A
sampling of only 12 select venires over a 7-year period with nothing more is not
sufficient. The district court properly determined that Perez-Mares did not satisfy the
second prong of the Duren test because he failed to show the underrepresentation of
Hispanics in the jury venires was unfair or unreasonable in relation to the number of
Hispanics in the community.

Whether the Underrepresentation Was Due to Systematic Exclusion of Hispanics

Perez-Mares claims the high absolute disparity, which he admits stems only from
venires from his defense counsel's cases over the previous seven years, suggests a
systematic exclusion, but he needed more time to discover the cause of the disparity. He
claims that the district court improperly concluded that an intent to exclude Hispanics
from jury pools was a necessary element for him to establish this prong. To the contrary,
he asserts than an inference is all that is necessary.

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He cites United States v. Test, 550 F.2d 577 (10th Cir. 1976) in support of this
argument. There, the court discussed the two types of United States Supreme Court cases
in which arguments had succeeded on inference of systematic exclusion. The first type of
cases are the "rule of exclusion" cases, in which the distinctive group had been totally
excluded from jury service or had only "token representation" over a substantial period.
550 F.2d at 586. The second type of cases presented a "substantial underrepresentation"
of a distinctive group, in which the various stages of the selection process provided
"obvious opportunities for discrimination." 550 F.2d at 586.

Though he does not specify which type of Test case this would be, it appears
Parez-Mares classifies this as a "rule of exclusion" case that with further investigation
could become a "substantial underrepresentation" case. However, if he classifies this as a
"rule of exclusion" case, Perez-Mares' evidence falls short of a sufficient showing as
demonstrated in the second prong. His calculated absolute disparity does not necessarily
show a systematic exclusion. If he classifies this as a "substantial underrepresentation"
case, he fails as he has presented no evidence of opportunities for discrimination in the
jury selection process.

Moreover, we believe Perez-Mares improperly concluded that the district court
inferred an intent requirement as the court only determined a systematic exclusion
requires an act by the government, not an exclusion intent. For example, in Castaneda v.
Partida, 430 U.S. 482, 493-94, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977), the Supreme
Court used a test similar to that in Duren but found the systematic exclusion prong
required a showing of a "selection procedure that is susceptible of abuse or is not racially
neutral." (Emphasis added). And in Berghuis v. Smith, 559 U.S. 314, 332, 130 S. Ct.
1382, 176 L. Ed. 2d 249 (2010), Smith provided a list of possible factors contributing to
the underrepresentation of African-Americans in jury venires to show systematic
exclusion. The Court rejected his claim and found "[n]o 'clearly established' precedent of
this Court support[ed] Smith's claim that he can make out a prima facie case merely by
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pointing to a host of factors that, individually or in combination, might contribute to a
group's underrepresentation." 559 U.S. at 332.

Kansas jury venires are "prepared from voter registration records of the county,
lists of licensed drivers residing in the county or enumeration or census records for the
county, in accordance with the intent and purposes of [the Petit and Grand Jurors Act of
1971]." K.S.A. 43-162. The Kansas Supreme Court has determined that the use of voter
registrations and driver's license records to generate jury venires is constitutional as it
only excludes those who cannot or choose not to partake in such activities. State v. Ji,
251 Kan. 3, 7, 832 P.2d 1176 (1992). That excludes no distinct group in the community
and so creates no constitutional concern. 251 Kan. at 7.

Perez-Mares' claim of systematic exclusion as required by the third prong of the
Duren test is based solely on the numbers, rather than the system. He claims the system
must be the cause without suggesting how such a systematic exclusion would be possible.
Perez-Mares' assertion falls short of the list provided in Berghuis, as he does not even
offer up factors to consider. He only requests additional time to research the issue, which
should have been completed prior to the motions hearing. He has failed to present a prima
facie case for a Sixth Amendment violation, although the number of Hispanics serving on
juries is quite suspicious.

Affirmed.