356 S.W.3d 157 (Mo. 2011), SC 91849, State v. Letica

Docket Nº:SC 91849.
Citation:356 S.W.3d 157
Opinion Judge:ZEL M. FISCHER, Judge.
Party Name:STATE of Missouri, Respondent, v. Ines LETICA, Appellant.
Attorney:Steven V. Stenger, Klar, Izsak & Stenger LLC, St. Louis, for Letica. Timothy A. Blackwell, Attorney General's Office, Jefferson City, for State.
Judge Panel:TEITELMAN, C.J., RUSSELL, BRECKENRIDGE, STITH and PRICE, JJ., and ASEL, Sp.J., concur. DRAPER, J., not participating.
Case Date:December 20, 2011
Court:Supreme Court of Missouri
 
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356 S.W.3d 157 (Mo. 2011)

STATE of Missouri, Respondent,

v.

Ines LETICA, Appellant.

No. SC 91849.

Supreme Court of Missouri, En Banc.

December 20, 2011

Rehearing Denied Jan. 31, 2012.

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Steven V. Stenger, Klar, Izsak & Stenger LLC, St. Louis, for Letica.

Timothy A. Blackwell, Attorney General's Office, Jefferson City, for State.

ZEL M. FISCHER, Judge.

Ines Letica was tried and found guilty by a jury of one count of first degree assault and one count of armed criminal action. The State made a reverse- Batson 1 challenge alleging that a venireperson was struck with a peremptory challenge on the basis of gender, race or ethnic origin. The circuit court erred when it ruled prematurely on the challenge and did not require the State to demonstrate that racial or gender discrimination was the motivating factor for the peremptory strike. However, this error, resulting in an otherwise qualified juror being empaneled, is harmless error under the facts presented in this case. Other questions on appeal relate to the sufficiency of the evidence as to Letica's convictions and plain error review for unpreserved issues involving Letica's sentencing— alleged prosecutorial misconduct during voir dire and in opening and closing arguments and as to whether the probative value of photographs admitted into evidence outweighed their prejudicial effect. This Court granted transfer after opinion by the court of appeals and, therefore, has jurisdiction over this appeal pursuant to article V, section 10, of the Missouri Constitution. The circuit court's judgment is affirmed.

Facts

The facts, when viewed in the light most favorable to the verdict,2 are as follows:

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On December 7, 2007, Edmond Ibrahemi, originally from Serbia, went to a bar in St. Louis named Skala to meet a friend. The defendant, Ines Letica, approached Ibrahemi in the bathroom and stated that he wanted to talk outside. Ibrahemi had told Letica's cousin that he wanted Letica to leave him alone and that he did not want to fight with Letica. They knew each other and had previously engaged in two earlier arguments. They went out a back door. After a short verbal exchange, Letica cut Ibrahemi's throat and neck with a knife. Letica also cut Ibrahemi in the chin, chest, knee, and abdomen. Ibrahemi went back inside the bar and collapsed.

Ibrahemi's injuries would have been life-threatening without medical treatment. He was hospitalized for five days. The cut across the front of his neck went down to the Adam's apple and caused injury and swelling of the vocal cord. Two additional incisions were made on Ibrahemi as part of the treatment for his injuries: one for exploratory surgery and another to insert a chest tube. In total, Ibrahemi sustained 15 cuts and was placed on a respirator while in a medically induced coma for three to four days.

Letica was charged in St. Louis City with first degree assault in violation of § 565.050,3 and armed criminal action in violation of § 571.015, for the attack of Ibrahemi.4

During voir dire, the following exchange took place:

[PROSECUTOR]: While I'm in the first row Miss Wiese, is that how you say your name?VENIREPERSON WIESE: It's Wiese.

THE COURT: Would you stand for me please, ma'am? Thank you.

[PROSECUTOR]: It says here you work for Express Scripts; is that correct?

VENIREPERSON WIESE: Yes.

[PROSECUTOR]: And how long have you been doing that?

VENIREPERSON WIESE: Two years.

[PROSECUTOR]: Okay. Anything that you've heard so far that you believe that you could not be fair and impartial and follow the law?

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VENIREPERSON WIESE: No.

[PROSECUTOR]: Okay. Thank you.

The State used peremptory challenges to strike five African-American females from the panel for which defense counsel raised Batson objections. After the State explained its reasoning for striking the five African-American females, the circuit court judge addressed defense counsel stating: " Okay. I think the burden flips to you ... to show somebody is similarly situated, does it not?" After defense counsel offered a similarly situated venireperson, the circuit court judge stated further:

No, but it's a peremptory challenge, which I understand it can be based solely on instinct unless the instinct is racially or gender pretextual. The question then is whether there is someone similarly situated where you can confirm for me that it's a pretextual basis.

The circuit court permitted all of the State's peremptory challenges.

Defense counsel then used peremptory challenges to strike four Caucasian females, including Wiese, from the panel. The State raised a reverse- Batson objection to striking the four Caucasian females, including Wiese.5 The State argued that Wiese " didn't say anything" and noted that a number of the venirepersons struck through defense counsel's peremptory challenges were Caucasians. Defense counsel responded:

Miss Wiese I thought was young, she wore glasses, she's correct. She didn't really have much interaction with anyone. But I didn't get a good vibe, it was basically because she was young.

The following exchange then took place:

THE COURT: ... I think just young doesn't get it. And I have no notes that she said anything.

[THE PROSECUTOR]: And age is a protected class.

THE COURT: She works for Express Scripts, yes. I think she asked how long have you been there, she said three years maybe.

[DEFENSE COUNSEL]: Three or four years.

THE COURT: And that was it. So I'm going to sustain your [reverse- Batson ] objection to Miss Wiese.

Therefore, Wiese served on the jury. At trial, Letica testified and claimed self-defense, alleging that Ibrahemi was the initial aggressor. Letica moved for a judgment of acquittal at the close of the State's case, and the circuit court overruled the motion. Letica moved for a judgment of acquittal at the close of all of the evidence, and the circuit court also overruled that motion.

The jury found Letica guilty of first degree assault and armed criminal action arising from the altercation between Letica and Ibrahemi. In accord with the jury verdict, the circuit court sentenced Letica to 15 years in the custody of the Missouri Department of Corrections on each count with the sentences to run concurrently.

THE REVERSE- BATSON CHALLENGE

Letica argues that the circuit court erred in sustaining the State's reverse- Batson challenge regarding Wiese. Letica claims that the State failed to carry its burden of proving the defense counsel attempted to strike Wiese for unconstitutionally discriminatory reasons.

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Standard of Review

A criminal defendant's equal protection rights are violated when the State exercises peremptory strikes to remove potential jurors from the venire panel solely because of their race or on the assumption that their race will disable them from considering the State's case. Batson, 476 U.S. at 94-100, 106 S.Ct. 1712. The Batson doctrine was extended to apply to discriminatory challenges to potential jurors based on gender alone. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). Under the Equal Protection Clause, a party may not exercise a peremptory challenge to remove a potential juror solely on the basis of...

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