State v. Ashley, s. WD

• Decision Date: 25 March 1997
• Docket Number: Nos. WD,s. WD
• Citation: 940 S.W.2d 927
• Parties: STATE of Missouri, Respondent, v. Franklin L. ASHLEY, Appellant. 49347, WD 52717.
• Court: Missouri Court of Appeals

Page 927

940 S.W.2d 927

STATE of Missouri, Respondent, v. Franklin L. ASHLEY, Appellant.

Nos. WD 49347, WD 52717.

Missouri Court of Appeals Western District.

March 25, 1997.

Rebecca L. Kurz, Assistant Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Stephen D. Hawke, Assistant Attorney General, Jefferson City, for respondent.

Before HANNA, P.J., and ELLIS and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Franklin L. Ashley appeals his convictions for burglary, rape, assault, and armed criminal action on the ground that the trial court violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by failing to sustain his objections to the State's use of peremptory challenges to strike two African-American venirepersons. He also appeals the motion court's denial, after an evidentiary hearing, of his pro se Rule 29.15 motion for post-conviction relief on the ground that his trial counsel were ineffective for failing to call an independent DNA expert as a witness at trial.

We find that Mr. Ashley has failed to show that the State exercised its peremptory challenges in a discriminatory fashion and affirm his conviction. We also find that Mr. Ashley has failed to show that counsel was ineffective in failing to call an independent DNA expert, and so affirm the denial of his Rule 29.15 motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Taken in the light most favorable to the verdict, the evidence showed as follows:

The victim lived in a house in south Kansas City, Missouri, with her two young sons and one young daughter. Her daughter slept with her, and her sons slept in a back bedroom. After midnight on April 7, 1992, the victim was awakened by a loud boom. She looked up and saw a man standing in her bedroom doorway. He demanded money, eventually taking the victim's food stamps, cash, marijuana, watches and necklace.

The victim's children began to scream. The man did not flee, however. Instead, he dragged the victim to the kitchen and obtained a knife. He then dragged her back to her bedroom, jabbed her with the knife, forced her to perform oral sex, and raped her. He stabbed her in the back, but the knife broke. Realizing her assailant was trying to kill her, the victim yelled to one of her sons to try to escape and get help, and then tried to escape herself. The assailant grabbed her, however, and began to choke and kick her. He tried to pull her into her kitchen so he could obtain another knife, but she was able to struggle out of his grasp and run to a neighbor's house and call the police. The assailant escaped before the police arrived, but the police did obtain semen and blood samples from the crime scene.

The victim was taken to the emergency room, and remained in the hospital for three to five days. While in the hospital, she was shown a photo display. She identified Mr. Ashley as her assailant, stating that she had known him for as long as she could remember. Mr. Ashley was then charged by indictment with first degree burglary, forcible rape, forcible sodomy, first degree robbery, first degree assault, and multiple counts of armed criminal action. The State subsequently filed an information in lieu of indictment charging Mr. Ashley as a prior, persistent, and Class X offender.

On the day of trial, seven of the twenty-eight members of the venire were African-American. Two of these African-American venirepersons were dismissed for cause because of health problems. Defense counsel used a peremptory strike to remove an African-American person on the venire. At the time the State began its peremptory challenges, there were thus four African-Americans left on the venire.

Counsel for the State used three of its six peremptory challenges to remove Caucasian venirepersons and three peremptory challenges to remove African-American venirepersons: Mr. Ray, Mr. Dixon, and Mr. Mays. Counsel for Mr. Ashley objected to the strikes of these three African-Americans, arguing that the strikes were racially motivated.

The prosecutor explained that she had used one peremptory challenge to remove Mr. Ray because his stepson had been prosecuted by the assistant prosecutor in this case. She explained that she struck Mr. Dixon and Mr. Mays because they had failed to respond to any questions during general or individual voir dire. She had removed the three Caucasian venirepersons for the same reason.

Defense counsel argued that the explanation for the removal of the two African-Americans for failure to respond to voir dire was pretextual, in that two additional Caucasians who had also failed to answer any questions on general voir dire were not removed. The trial judge said that, after noting the demeanor of those involved and listening to the reasons given for the strikes, he found the State's reasons for striking the African-Americans were not racially motivated or pretextual and overruled Defendant's objections. The remaining African-American served on the jury.

At trial, the victim identified Mr. Ashley as her assailant. In addition, the State's expert, John T. Wilson, testified that the Regional Crime Laboratory had subjected the semen and blood samples obtained from the crime scene to DNA testing and analysis. He testified that the DNA pattern of the samples was consistent with Mr. Ashley's DNA pattern, and that less than ten people out of one million would have the same genetic profile as Mr. Ashley. Defense counsel engaged in cross-examination of the State's expert, but did not put on an independent defense DNA expert.

The jury convicted Mr. Ashley on the charges of first degree burglary, forcible rape, and first degree assault, as well as on two counts of armed criminal action. The jury acquitted Mr. Ashley on the counts of forcible sodomy and first degree robbery, and on two counts of armed criminal action. The court determined that Mr. Ashley was a prior, persistent, and Class X offender and sentenced him to consecutive terms of fifteen years for burglary, life for forcible rape, fifteen years for assault, and fifty years for each of the armed criminal action convictions.

Mr. Ashley filed a pro se Rule 29.15 motion for postconviction relief alleging that a competent independent DNA expert would have found the State's DNA expert's analysis faulty and inadequate to identify Defendant, and that his defense counsel were ineffective in failing to call such an expert to testify at the trial. At the evidentiary hearing held on this motion, Defendant offered the testimony of an expert who said it was his opinion that as many as one in five people would match the DNA profile as well as did Defendant, and that the test procedures did not preclude the possibility of contamination. Defendant argued that had this testimony been presented at trial there was a reasonable probability he would have been acquitted.

Kent Hall, one of the trial counsel for Defendant, also testified at the 29.15 hearing. He stated that prior to Mr. Ashley's trial he had the semen samples sent to an independent expert, Dr. Robert Allen, for DNA testing. Mr. Hall testified that not only could Dr. Allen not eliminate Mr. Ashley as the source of the sample, but instead Dr. Allen confirmed the Regional Crime Lab's results indicating a substantial likelihood that Mr. Ashley was the perpetrator. Because he and the other defense counsel, Leon Munday, did not want to produce further incriminating evidence, they told Dr. Allen not to conduct further testing and made the decision not to have another expert test the DNA samples. Instead, they relied on cross-examination of the State's expert at trial. The motion court found that counsel were not ineffective and denied Mr. Ashley's 29.15 motion. This appeal followed.

II. THE PROSECUTION DID NOT USE PEREMPTORY CHALLENGES TO STRIKE VENIREPERSONS SOLELY ON THE BASIS OF THEIR RACE

On direct appeal, Mr. Ashley claims that the trial court's failure to sustain his objections to the State's peremptory strikes of two African-American venirepersons violated the Equal Protection Clause of the United States Constitution.

We will set aside the trial court's finding as to whether a prosecutor discriminated in the use of peremptory challenges only if that finding is clearly erroneous. State v. Smulls, 935 S.W.2d 9, 15 (Mo. banc 1996); State v. Weaver, 912 S.W.2d 499, 509 (Mo. banc 1995), cert. denied, --- U.S. ----, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996). The trial court's determination is clearly erroneous only if we are left with a definite and firm impression that a mistake has been made. State v. Gray, 887 S.W.2d 369, 385 (Mo. banc 1994), cert. denied, --- U.S. ----, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995). The Equal Protection Clause of the United States Constitution prohibits the prosecution from using peremptory strikes to remove prospective jurors solely on the basis of their race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). To determine whether the use of peremptory challenges violates a person's Constitutional rights, Batson requires us to apply a three-step analysis.

The first step in the Batson analysis requires the defendant to establish a prima facie claim by objecting that one or more of the prosecutor's peremptory strikes was based on race and by identifying the racial group to which the stricken venireperson or venirepersons belong. Smulls, 935 S.W.2d at 14; Gray, 887 S.W.2d at 383-84; State v Shurn, 866 S.W.2d 447, 456 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). Once the defendant challenges one or more peremptory strikes by the prosecution, the burden of production shifts to the prosecutor to offer a race-neutral reason for the strikes. Id. If the prosecutor provides a race-neutral reason, then the burden shifts back to the defendant to prove that the prosecution's stated reasons for the peremptory strikes were merely pretextual and that the...