Benton v. State, WD

• Decision Date: 31 October 1989
• Docket Number: No. WD,WD
• Citation: 779 S.W.2d 319
• Parties: Brook BENTON, Appellant, v. STATE of Missouri, Respondent. 40493.
• Court: Missouri Court of Appeals

Page 319

779 S.W.2d 319

Brook BENTON, Appellant, v.STATE of Missouri, Respondent.

No. WD 40493.

Missouri Court of Appeals Western District.

Oct. 31, 1989.

Joseph H. Locascio, Sp. Public Defender, Kimberley K. Kellogg, Asst. Sp. Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, P.J., and LOWENSTEIN and BERREY, JJ.

LOWENSTEIN, Judge.

Brook D. Benton appeals a jury conviction of robbery in the second degree and sentence of fifteen years as a persistent offender and denial, after hearing of his Rule 29.15 claim.Benton presents three claims of trial court error: 1) denial of his equal protection claim based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986); 2) violation of his sixth amendment right to call witnesses on his own behalf; and 3) violation of his sixth amendment right to present evidence on his own behalf.

On July 16, 1987 at approximately 11:45 a.m., Wendy Paradis and Terry Gilmore, two employees of TG & Y--McCrory's were walking to the Central Bank of Kansas City to deposit $1339.74.The money was in a locked bag concealed by a manila envelope.As they neared the bank and noticed they were being followed, Paradis gave the money to Gilmore to carry to the bank.After they walked past appellant Benton, he began walking behind them.Gilmore sped up but was confronted by a second individual who said "Give me the money."After Gilmore resisted, Benton and three others succeeded in wrestling the money from him, then ran away.

Paradis gave a description of Benton to the police.On August 29, 1987she saw Benton at a Texas Tom's half a block away from the bank.She called the police at TG & Y--McCrory's and, while waiting, Benton walked past then stopped to wait for a bus.The police arrived and arrested him.

BATSON CLAIM

A reviewing court may not reverse a trial court's decision as to whether the prosecutor discriminated in the exercise of his peremptory challenges unless that finding is clearly erroneous.State v. Griffin, 756 S.W.2d 475, 482(Mo. banc 1988).A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.State v. Rogers, 753 S.W.2d 607, 609(Mo.App.1988).The reviewing court must give deference to the trial court's opportunity to judge the credibility of witnesses, State v. Sproling, 752 S.W.2d 884, 886(Mo.App.1988), and if the trial court's decision is plausible in light of the record reviewed in its entirety, a reviewing court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have found differently.Rogers, supra.

Benton, a black male, asserts the trial court should have quashed the jury because the prosecutor used four peremptory challenges to exclude blacks from the jury in violation of Missouri Constitution, Article I, Section 18(a) and the equal protection clause of the United States Constitution.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), the United States Supreme Court established the following standards used to determine whether prosecutors exercised their peremptory challenges in a racial discriminatory manner:

To establish [a prima facie case], the defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race.Second, the defendant is entitled to rely on the fact ... that peremptory challenges constitute a jury selection practice that permits [discrimination].Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race....

* * * * * *

Once the defendant makes a prima facie showing, the burden shifts to the state to come forward with a neutral explanation for challenging black jurors....[However,]the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause....

Batson, 106 S.Ct. at 1723.The burden of persuasion always lies with and never shifts from the defendant.Sproling, supra.

In this instance, Benton has established a prima facie case.State v. Antwine, 743 S.W.2d 51, 65(Mo. banc 1987).One, he is a member of a cognizable racial group; two, the prosecutor exercised four of his peremptory challenges to remove members of his race; and three, these facts support a presumption that the prosecutor acted in a discriminatory manner.Sproling, supra.Therefore,

the issue becomes whether the explanations of the prosecutor were case specific and presented credible and sufficient reason to support the finding of the trial court that they were adequate to rebut the presumption created by defendant's prima facie showing.

Id.

Benton's attack centers around the fact that blacks were struck while similarly situated whites were not.First, the prosecutor asked whether the venire had "a friend or relative that has served or is presently serving time in the penitentiary."Mr. Childress and Mr. Rice answered in the affirmative.Childress, a black male, was struck while Rice, a white male, was not.Second, when asked about identification, both Mr. Turner and Mr. McGrew agreed it was possible to make a mistake in identification.Turner, a black male, was struck while McGrew, a white male, was not.It would seem obvious at first glance that race was a factor in the prosecutor's decision, however, "evidence of a failure to strike a similarly situated white juror does not mandate reversal; rather, it is a factor to be considered by the trial court in making its final determination."Rogers, supra, at 610.

In the case at bar, the prosecutor met his burden of production by presenting race neutral explanations for his peremptory decisions.

State strikes Number 11, Carlton Turner, who testified ... during questioning, that he felt that people could make mistakes in identification and for that reason he was stricken.

* * * * * *

Juror Number 20, Mr. Childress, has indicated he had a brother that has served time in the penitentiary in the past, and we feel that is enough reason to remove him as one of the state's strikes.

The trial court felt that these explanations were race neutral and met the standards set forth in Batson, supra.Benton did not attempt to prove that the reasons espoused were pretextual, Antwine, supra, and given the strict standard of review, this court cannot say the trial court's finding is clearly erroneous, Griffin, supra, as to these particular strikes.

Benton raises for the first time on appeal the impropriety of striking Mr. Theodore Morris, a black male.Although the state listed as its reason for striking Morris that he had a nephew in the penitentiary, the record does not indicate the source of that information.Even so, the lack of such a record may be blamed on Benton.The prosecutor had no reason to explain his source of information since Benton did not raise this issue before the trial court.This point was not properly preserved for appellate review.

It is also worth noting that the wording and principals of Batson suggest that it applies to the situation where a black defendant is tried before an all white jury.State v. Crump, 747 S.W.2d 193, 196(Mo.App.1988).The fact that two blacks sat on the petit jury undercuts any inference of impermissible discrimination.SeeState v. West, 766 S.W.2d 103, 112(Mo.App.1989);Crump, supra;United States v. Montgomery, 819 F.2d 847, 851(8th Cir.1987);United States v. Dennis, 804 F.2d 1208, 1211(11th Cir.1986).

For the above reasons the Batson claim is denied.

RIGHT TO CALL WITNESSES AND PRESENT EVIDENCE

Benton asserts that his sixth amendment right to call witnesses and to present evidence was violated because the trial judge did not allow the testimony of Officer Truschinger nor the reception into evidence of defense exhibit 11 (eleven), a police report.This, Benton claims, would have shown a prior inconsistent statement made by prosecution witnesses Paradis.

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