Opinion
No. 106,156.
2013-02-22
STATE of Kansas, Appellee, v. Frankie BUIE, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Edmond Brancart, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Edmond Brancart, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM:
Frankie Buie was convicted by a jury of aggravated robbery. Buie appeals that conviction, arguing that the district court erred (1) by not dismissing the charge for violation of his speedy trial rights under the Interstate Agreement on Detainers, K.S.A. 22–4401 et seq. (Interstate Agreement); (2) by giving an outdated jury instruction on eyewitness identification; and (3) by not requiring the State to make race-neutral explanations for the preemptory strikes of four jurors.
For the reasons set forth hereinafter, we find (1) that Buie's speedy trial rights were not violated; (2) that the eyewitness instruction was not clearly erroneous under the circumstances of this case; but (3) that the district court erred in not requiring the State to provide race-neutral explanations for the preemptory strikes of four jurors. Accordingly, we affirm in part but remand with directions for further proceedings.
Facts
On June 13, 2007, Anissa Reed parked her minivan at the Apple Market grocery store in Kansas City, Kansas. While she went into the store, her 13 year-old daughter, Chaterion, and 8 year-old son, Jajuan, remained in the car listening to the radio with the windows down. Chaterion saw a man approaching the minivan in the rearview mirror but did not pay special attention to him. The man then opened the door and told the children to get out of the car. When Chaterion looked at him and said, “Are you serious,” the man pulled out a gun and again told them to get out of the car. Jajuan got out of the car by himself while the man pulled Chaterion out of the car. As the children ran into the store yelling that they had just been carjacked by a man with a gun, the man drove off with the minivan.
Anissa Reed advised the responding police officers that the van was equipped with an OnStar tracking system. A short time later, OnStar informed the police in Kansas City, Missouri, of the vehicle's location. The van was sighted by an airborne officer in a KCMO police helicopter, who broadcast the location. Ground officers observed the minivan drive into the parking lot at a convenience store. Buie was the driver and only occupant of the minivan, and he was taken into custody as he exited the vehicle. He was transferred, along with his clothing and personal property, to Kansas City, Kansas, police. The officers did not find a gun in the minivan.
Buie was charged with aggravated robbery, but sometime after he was charged, Buie was imprisoned in Cameron, Missouri, on an unrelated charge. In September 2009, Buie sent a request for disposition under the Interstate Agreement to the Wyandotte County District Court and to the district attorney. Buie was returned to Wyandotte County and, after a jury trial on April 26, 2010, he was found guilty of aggravated robbery and was sentenced to 216 months in prison. He timely appeals.
Speedy Trial Under the Interstate Agreement on Detainers
Additional procedural and background facts
A certified mailing receipt establishes that Buie's request for disposition under the Interstate Agreement was delivered to the clerk of the district court office on September 21, 2009, but that it was not filed until September 29, 2009.
Buie's request form lists an incorrect address for the office of the district attorney—“710 N. 10th St.”—rather than 710 N. 7th St, Suite 10 which appears on later filings. The record does not indicate when the request form was actually received by the district attorney. The State argues that there is no evidence that the prosecutors were notified until the district court filed Buie's request on September 29, 2009.
At Buie's request, counsel was appointed to represent him. On December 10, 2009, Buie's attorney failed to appear at the preliminary hearing due to inclement weather. The preliminary hearing was continued to January 7, 2010. The court's appearance docket notes indicate that this time was charged to the defendant.
On January 22, 2010, Buie's attorney failed to appear at a pretrial conference due to a scheduling conflict, necessitating a continuance to February 12, 2010. At that conference, the trial was set for Monday, March 29, 2010, which was the next court day following a 180–day period after Buie's request for disposition was filed in the district court, which had expired on a Sunday,
The State thereafter filed a motion to compute the timeline relative to Buie's speedy trial rights under the Interstate Agreement. At a hearing on the motion, the judge declined to calculate the actual time remaining to bring Buie to trial, noting that he did not recall Buie complaining that he did not want hearings continued but only complaining that his counsel was not present. The district judge assured the State that “you certainly have ample time to try this defendant if we don't get to the matter on March the 29th.”
On March 29, 2010, the trial was continued to April 26, 2010. The record does not note the reason for this continuance, although the State claims in its brief that the district court continued the trial sua sponte due to an overflowing trial calendar. The trial was commenced on April 26, 2010, resulting in Buie's conviction. Buie's counsel raised the speedy trial issue in two posttrial motions which were denied by the district court.
Analysis
Buie claims that the district court erred in not dismissing his case for lack of a speedy trial. Resolution of this issue requires interpretation of the Interstate Agreement, K.S.A. 22–4401. Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). The speedy trial rights of inmates detained in another state are “governed solely by the detainer statutes rather than by general speedy trial statutes.” State v. Angelo, 287 Kan. 262, 269–70, 197 P.3d 377 (2008). K.S.A. 22–4401 contains the applicable time constraints for the prosecution of a transferred inmate.
In the instant case, the State of Kansas did not request custody of Buie. Thus, since Buie was the only party who filed a request for disposition, we must look solely to Article III of K.S.A. 22–4401 to determine the relevant time period. See State v. White, 234 Kan. 340, 342–45, 673 P.2d 1106 (1983). Article III(a) provides:
“Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” (Emphasis added.)
Because the Interstate Agreement requires only that the prisoner or his counsel be present to grant a continuance, the statute anticipates that many scheduling questions will be left to counsel. See New York v. Hill, 528 U.S. 110, 115–16, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000).
The statute provides the remedy for failure to bring the prisoner to trial within the appropriate speedy trial timeframe: “[T]he appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereupon shall cease to be of any force or effect.” K.S.A. 22–4401, Art. V(c).
The parties disagree as to when the 180–day period commenced. Although the request was delivered to someone in the district court clerk's office on September 21, 2009, K.S.A. 22–4401, Article 111(a) requires delivery to both the district court and to the prosecutor. The State argues that it had no notice prior to the filing of the request by the district court clerk on September 29, 2009. Buie presents no record or evidence of when the prosecutor was served with notice. This court will, therefore, assume September 29, 2009 as the commencement date.
Buie was, in fact, brought to trial more than 180 days after September 29, 2009. The trial was eventually commenced on April 26, 2012, some 209 days after the time period had begun run. But our inquiry does not end here. We must determine whether at least 29 days are attributable to permissible continuances or else Buie is entitled to dismissal.
Under the Interstate Agreement, any continuance granted for good cause shown in open court extends the time limitation, provided the prisoner or his counsel is present. K.S.A. 22–4401 Art. III(a). The language of the statute does not distinguish whether a continuance was requested by the State or the defendant. Claims that delays are attributable to one party or another are essentially beside the point. See State v. Waldrup, 46 Kan.App.2d 656, 674, 263 P.3d 867 (2011)petition for rev. filed November 16, 2011. The essential question is whether good cause was shown in open court with Buie or his counsel present.
From the briefs and arguments, there appear to be three continuances at issue:
(1) 28 days—from December 10, 2009, to January 7, 1010—after Buie's counsel failed to appear at preliminary hearing due to inclement weather;
(2) 21 days—from January 22, 2010, to February 12, 2010—after counsel failed to appear at a pretrial conference due to a scheduling conflict; and
(3) 28 days—from March 29, 2010, to April 26, 2010—after the trial was postponed by the district court arguably due to an overcrowded trial docket.
Generally, in a criminal case, the granting of a request for continuance is within the discretion of the district court. See State v. Kirkpatrick, 286 Kan. 329, 345–47, 184 P.3d 247 (2008). However, when a constitutional or statutory right is involved, “there is a greater need for the trial judge to articulate the reasons for any discretionary decision.” State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009).
Our inquiry here is certainly impeded by the infirmities of the record presented to us. We have no transcripts for any of the continuances or any recorded indication that the district court made findings of good cause contemporaneously with granting of the continuances. However, as the party claiming error, Buie has the burden of designating a record that affirmatively shows error. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012). Without such a record, this court may presume that the district court's actions were proper and that no error occurred. State v. Crum, 286 Kan. 145, 161, 184 P.3d 222 (2008). Presuming that the continuances were granted upon proper findings, the 180–day limitation would be tolled.
We are given some confidence in indulging this presumption by the remarks of the trial court during later hearings, which imply that at least the first two continuances were granted for good cause. The judge stated that counsel provided reasonable explanations for missing the hearings due to inclement weather and a scheduling conflict. In denying Buie's posttrial motion, the court again noted that “[c]ircumstances[,] as they do on occasion[,] conspired to prevent [counsel's] appearance at those two hearings. It's an unfortunate set of circumstances, but it's reality. It does happen.” Conceding that the judge never used the magic words “good cause shown,” the cited observations coupled with the absence of any other indication or argument by Buie that the continuances were not granted for good cause, persuades us that the continuances complied with the statute and tolled the 180–day limitation for 49 days.
Interestingly, Buie does not actually argue that the continuances necessitated by his attorney's absence were not granted for good cause, nor does he allege that he was not present when the court ruled. Rather, he seems to focus on the lack of opportunity to object to the continuance. However, the arguments he makes and the authorities he cites are based on application of the general speedy trial statutes or on application of statutes other than K.S.A. 22–4401, which are clearly distinguishable due to their specific language and provisions. We find these arguments and citations to be inapplicable and unpersuasive.
The district court did not err in failing to dismiss for lack of a speedy trial under the Interstate Agreement.
The Eyewitness Identification Instruction
Additional Facts
Chaterion, the girl who had been in the minivan, testified at trial describing the robber as a tall, dark black man in his late thirties with a fade haircut. She described the robber's dirty red collared shirt with little holes in it. When asked how good of a look she got at the man during the robbery, Chaterion said; “I glanced—I like looked real quick. I mean, I[saw] him, though.” She agreed that she only saw the man's face for 10 seconds or less. She identified Buie at the trial as the man she had seen that day. Defense counsel attempted to impeach Chaterion's identification on cross-examination. The questioning focused on possible inconsistencies between Chaterion's description and Buie's actual appearance, whether the robber had a collared shirt, a fade haircut or facial hair, and which hand held the gun.
Jajuan, Chaterion's younger brother who had also been in the minivan, testified that he did not get a look at the robber's face.
A police officer who had exhibited a photo array to Chaterion the day after the robbery testified that she had identified Buie without hesitation and the officer characterized her confidence as “100% sure ... without a doubt.”
The only witness for the defense was an employee at the Apple Market where the robbery occurred. He testified that approximately 30 minutes before the robbery, an intoxicated man in a red shirt had caused a disturbance in the store, but the witness did not identify Buie as the intoxicated man in a photo array or in the courtroom.
Analysis
Buie claims that the district court erred in giving an outdated instruction on eyewitness identification.
“An appellate reviewing a district court's giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); see K.S.A. 22–3414(3). The reviewing court must first determine whether an error occurred. This presents a legal question subject to unlimited review. State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195, (2012). If an error occurred, the test for clear error requiring reversal is whether the reviewing court is firmly convinced that the jury would have reached a different verdict absent the erroneous instruction. This assessment involves a de novo determination based on the entire record. Williams, 295 Kan. at 516.
Jury Instruction No. 9 dealt with eyewitness identification testimony:
“The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove he has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
“1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting;
“2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence;
“3. Whether the witness had observed the defendant on earlier occasions;
“4. Whether a significant amount of time elapsed between the crime charged and any later identification;
“5. Whether the witness ever failed to identify the defendant or made any inconsistent identification;
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused; and
“7. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification.”
This instruction followed PIK Crim.3d 52.20. There was no recorded discussion of this particular instruction, nor any indication that Buie affirmatively agreed to it or advocated for it. Buie's counsel simply did not object to this instruction either at the instruction conference or when the instructions were read to the jury. In closing arguments, the State focused on the identity of the robber, emphasizing that Chaterion immediately identified Buie in the photo array, expressing certainty in that identification and that she had not waivered under cross-examination. The State also emphasized the fact that Buie was the only person in the minivan when it was located some 29 minutes after the robbery.
Defense counsel focused his closing arguments around the seven factors under the eyewitness instruction and argued, in particular, that Chaterion's certainty should not be given great weight in light of the other factors, including the short amount of time she had to observe the robber and how it was suggested to her by the photo array.
Several recent decisions by the Kansas Supreme Court have analyzed the eyewitness identification instruction. See State v. Marshall, 294 Kan. 850, 866–70, 281 P.3d 1112 (2012); State v. Mitchell, 294 Kan. 469, 275 P.3d 905 (2012); State v. Anderson, 294 Kan. 450, 276 P.3d 200 (2012). In each case, the court held that it was error to instruct the jury on the degree of certainty factor. The court determined that the degree of certainty factor “prompts the jury to conclude that an eyewitness identification is more reliable when the witness expresses greater certainty, which places undue weight on eyewitness certainty evidence.” Mitchell, 294 Kan. at 481.
We are bound by Supreme Court precedent and, accordingly, find that it was error for the district court to include the certainty factor (No. 6) in the Instruction No. 9.
Here, as in Marshall, the defendant did not object to the instruction; thus, the error must be clearly erroneous to warrant reversal. In Marshall, the court determined that (1) the identification was crucial to the State's case and (2) an opinion of certainty was stated, thereby requiring further analysis of the whole record. 294 Kan. at 867–68. Here it would also appear that Chaterion's identification is crucial to the State's case—she was the only one who could identify Buie at the scene of the crime. There was also an opinion of certainty established through the police officer's testimony.
At this point then, in accordance with Marshall, we must determine if “other procedural—safeguards” mitigate the instructional error. The Marshall court quoted Perry v. New Hampshire, 565 U.S. ––––, 132 S.Ct. 716, 728–29, 181 L.Ed.2d 694 (2012) in which the United States Supreme Court recognized several safeguards preventing juries from placing undue weight on unreliable eyewitness testimony:
“These protections include the defendant's Sixth Amendment right to confront the eyewitness. [Citation omitted.] Another is the defendant's right to the effective assistance of an attorney, who can expose the flaws in the eyewitness' testimony during cross-examination and focus the jury's attention on the fallibility of such testimony during opening and closing arguments. Eyewitness-specific jury instructions, which many federal and state courts have adopted, likewise warn the jury to take care in appraising identification evidence. [Citations omitted.] The constitutional requirement that the government prove the defendant's guilt beyond a reasonable doubt also impedes convictions based on dubious identification evidence.”
Several procedural safeguards mitigate the effect of the erroneous instruction in the present case. Buie's counsel engaged Chaterion in extensive cross-examination regarding inconsistencies in her identification and description of the robber. The instruction did not focus solely on the degree of certainty, but listed six other factors to consider, several of which arguably weighed against the accuracy of Chaterion's identification. Counsel stressed her brief opportunity to observe, her frightened emotional state and her unfamiliarity with Buie. Chaterion's identification was corroborated by Buie's arrest upon exiting the stolen vehicle shortly after the robbery.
We would, therefore, find that even had the degree of certainty factor been properly omitted from the eyewitness identification instruction, there is no real possibility of a different verdict. See Marshall, 294 Kan. at 870.
The Batson Challenge Issue
Additional Facts
Following voir dire, the following brief colloquy occurred between the district court and counsel:
“[DEFENSE COUNSEL]: Judge, I would like the State to make race neutral reason [s] why [it] struck jurors 3, 9, 24, and 29.
“[ASSISTANT DISTRICT ATTORNEY]: Well, Judge, that's not a showing of-according to the law.
“THE COURT: No, it's not.
“[DEFENSE COUNSEL]: I'm just making the record, Judge.
“THE COURT: Okay.
“[DEFENSE COUNSEL]: I talked to him about it, so that's why I brought it up so we didn't have to discuss it with him later, okay?
“THE COURT: That's insufficient for the Batson threshold. Okay. You can call [the jurors] in now.”
Although the record on appeal does not contain a transcript of the strikes, it appears from the briefs that both Buie and the four jurors questioned are African–American.
Buie filed a motion for new trial arguing that the State's strikes violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Buie claimed that the court did not allow him to make a record of his challenge and failed to inquire of the State about the strikes. The court ruled that Buie had failed to present a threshold Batson issue and that no further Batson analysis was necessary.
Analysis
On appeal Buie renews his argument that the district court erred by failing to require the State to provide race-neutral reasons for its preemptory strikes.
In Batson, the United States Supreme Court held that the Equal Protection Clause of the 14th Amendment applies to the State's privilege to strike jurors through preemptory challenges. A Batson challenge to the State's use of a peremptory challenge is analyzed in three steps. The first step is the defendant's prima facie showing that the challenge was made on the basis of race. The second step is the prosecutor's burden to show a race-neutral explanation for striking the jurors in question. The third and final step is the trial court's decision on the ultimate question of whether the defendant has met its burden of proving purposeful discrimination. State v. Hill, 290 Kan. 339, 358–59, 228 P.3d 1027 (2010)
Here, Buie's challenge only reached the first step of the analysis because the district court summarily denied Buie's challenge and did not require the State to provide race-neutral explanation. Review of the first step is a question of legal sufficiency subject to plenary review. Hill, 290 Kan. at 358. Although the second step of the analysis is technically not necessary if no prima facie showing has been made, “[a]s a practical matter, it is the better practice to have the State respond, and then for the court to make a determination on whether the reasons are racially neutral,” thereby eliminating the need for a remand if the court errs in finding no prima facie showing. (Emphasis added.) State v. Sledd, 250 Kan. 15, 21, 825 P.2d 114,cert. denied (1992). The district court here failed to follow that better practice and simply cut off Buie's challenge.
To make a prima facie showing, the defendant must demonstrate the prosecution “has exercised peremptory challenges to remove from the venire members of a certain race or gender and that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the jurors from the jury on account of their race or gender. [Citation omitted.]” State v. Edwards, 264 Kan. 177, 193–94, 955 P.2d 1276 (1998).
In State v. Humphrey, 30 Kan.App.2d 16, 18–19, 36 P.3d 844 (2001), rev. denied 273 Kan. 1038 (2002), the district court had denied the defendant's Batson challenge without allowing the defendant to make an argument. On appeal a panel of this court emphasized the need to afford the defendant an opportunity to articulate the facts and circumstances of his challenge. Humphrey, 30 Kan.App.2d at 19. In that case the appellate court reviewed the record and determined that since the State had used only one of its preemptory challenges to strike one of two possible African–American jurors, the defendant could not have made a prima facie case. Humphrey, 30 Kan.App.2d at 19–20.
In State v. Bolton, 271 Kan. 538, 540, 23 P.2d 824 (2001), the district judge denied the defendant's Batson challenge without requiring the State to present a race-neutral reason for striking six African–American jurors. Based on his own notes, the judge could not see a pattern of discrimination. Because there was no record to be reviewed, our Supreme Court remanded the case to hold a proper Batson hearing on the peremptory challenges. Bolton, 271 Kan. at 544–45. Our Supreme Court instructed: “If the trial court is unable to make a fair determination as required by Batson, it must grant the defendant a new trial.” Bolton, 271 Kan. at 545.
Here, the district clearly did not give Buie an opportunity to articulate the facts and circumstances of his challenge. Following Humphrey this court can review the record to determine whether Buie could have made a prima facie showing under the first stage of the Batson analysis. Unfortunately, as in Bolton, the record here is not helpful. There is neither a transcript of the actual strikes, nor a record of which jurors were struck for cause and which were preempted. There is no list matching juror names to numbers, and no indication of which jurors are African–American. Piecing together information from the allegations in later motions and counsel's arguments on the motions, it appears that there were 6 African–American jurors on the original panel of 32 and that Buie alleges that the State used 4 of its preemptory strikes to eliminate 4 of the 6.
Considering these allegations, it is not obvious why the district court so abruptly denied Buie's Batson challenge. The State's peremptorily striking four of the six African–American jurors would seem to at least raise a red flag suggesting that further inquiry into race-neutral reasons should be conducted. Here not only did the district judge fail to follow the “better practice” suggested by Sledd, 250 Kan. at 21, but he never offered any explanation for his ruling that Buie had not met the Batson threshold.
As in Bolton, there is not a sufficient record of factual findings for meaningful appellate review, and the record, such as it is, does not support the presumption that the district court found all facts needed to support its judgment. We, therefore, remand the case to the district court to develop the record and to hold a Batson hearing. At such hearing, Buie should be allowed to articulate the facts and circumstances of his challenge and the State should then be required to make race-neutral explanations for its strikes. The district court must then make the determinations required by Batson, including granting Buie a new trial if he can meet his burden of showing purposeful discrimination.
Affirmed in part and remanded with directions.