State v. Aziz, s. 59612

• Citation: 861 S.W.2d 803
• Decision Date: 21 September 1993
• Docket Number: 61032,Nos. 59612,s. 59612
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Wasim AZIZ, Defendant/Appellant. Wasim AZIZ, Movant/Appellant, v. STATE of Missouri, Defendant/Respondent.
• Court: Court of Appeal of Missouri (US)

Page 803

861 S.W.2d 803

STATE of Missouri, Plaintiff/Respondent, v. Wasim AZIZ, Defendant/Appellant.

Wasim AZIZ, Movant/Appellant, v. STATE of Missouri, Defendant/Respondent.

Nos. 59612, 61032.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 21, 1993.

Susan K. Eckles, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for respondent.

CRANE, Judge.

Defendant appeals the denial of his Batson challenge after this court remanded to the trial court pursuant to State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992) to determine whether the prosecutor exercised her peremptory strikes in a racially discriminatory manner. State v. Aziz, 844 S.W.2d 531 (Mo.App.1993). We found the trial court was required to ask the prosecutor for her explanations for striking five black venirepersons before determining whether the strikes were racially motivated. Id. at 535. In his original brief defendant also asserted the trial court plainly erred in giving the reasonable doubt instruction. Defendant further asserted the trial court erred or plainly erred in denying his motion to suppress. We deferred decision on those issues until after the Batson hearing. We affirmed the motion court's order denying post-conviction relief under Rule 29.15.

On December 16, 1992 the trial court conducted an evidentiary hearing and subsequently denied the Batson motion. The parties filed supplemental briefs in this court addressing the trial court's rejection of the Batson claim. We now affirm on all issues raised in the direct appeal.

I.

In his supplemental brief, defendant argues the trial court erred in overruling his motion to quash the jury panel pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Defendant argues the state's explanations for its strikes of two black venirepersons were pretextual because the state did not strike two similarly situated white venirepersons.

At the hearing on remand, the defendant objected to only two of the strikes, those of Bertha Graves, a black female, and Robert Edwards, a black male. The prosecutor stated she struck Graves because "when questioned she kept looking off, would not look me in the face, seemed a little indignant to the State, more receptive to [defense counsel]. She also did not have any children, was of the age of fifty-eight. On a stealing case when I have victims I prefer to have family people, people with children."

The prosecutor stated she struck Edwards because he "would not make eye contact with me. He was unresponsive to my questions and inattentive. He was another individual who is fifty-two with no children...."

After the prosecutor gave her reasons, defense counsel responded that the prosecutor never stated to the court or made a record during voir dire that either venireperson was looking off, inattentive, looking indignant, had no eye contact, or was unresponsive. The defendant did not challenge the substance of the explanation and made no other objection to the strikes at the hearing.

The trial court denied the motion, finding the state's explanations were race-neutral in light of the totality of the facts and circumstances surrounding the case. It further found that defendant failed to show that the state's proffered reasons were pretextual and that the strikes were in fact racially motivated. The court also found that the state's failure to use all of its strikes against venirepersons of a racial minority and the presence of six black jurors on defendant's panel indicated that race was not the prosecutor's motive for the challenged strikes.

The trial court's determination regarding purposeful discrimination is a finding of fact that should not be disturbed on appeal unless clearly erroneous. State v. Parker, 836 S.W.2d 930, 939 note 7 (Mo. banc 1992). See also, State v. Pullen, 843 S.W.2d 360, 362-63 (Mo. banc 1992). To be clearly erroneous, the reviewing court must have a "definite and firm conviction that a mistake was made." State v. Gray, 849 S.W.2d 115, 117 (Mo.App.1993).

In Parker the supreme court enunciated the procedure to be followed in addressing a Batson objection: (1) defendant must raise a Batson challenge to one or more specific venirepersons struck by the state and identify the cognizable racial group to which they belong; (2) the state must then come forward with "reasonably specific and clear race-neutral explanations for the strike"; and (3) if the state does so, defendant must then show "the state's proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated." 836 S.W.2d at 939.

In determining whether a defendant has carried the burden of proving purposeful discrimination, the trial court should view the plausibility of the state's explanations in light of the totality of the circumstances of the case. Id. at 939. Other factors which the trial court should consider include: (1) the existence of similarly situated white jurors who were not struck; (2) the degree of relevance between the explanations and the case to be tried "in terms of the kind of crime charged, the nature of the evidence to be adduced, and the potential punishment"; (3) the prosecutor's demeanor or statements during voir dire; (4) the demeanor of the excluded venirepersons; (5) the trial court's past experiences with the prosecutor; and (6) other objective factors bearing on the state's motive to discriminate on the basis of race. Id. at 939-40. "[T]he state's failure to use all of its strikes against venirepersons of a racial minority, or the presence of a racial minority on the defendant's jury, are relevant factors for consideration only to the extent that they indicate that race was not the prosecutor's motive for the challenged strikes." Id. at 940.

At the Batson hearing steps one and two of the Parker procedure were followed. The defendant challenged the strikes of the black venirepersons on the panel and the prosecutor stated the reasons for these strikes. However, defendant failed to show that the state's proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated as required by Parker.

Defendant objected only to the state's failure to alert the court to the veniremen's inattentiveness. Voir dire in this case was conducted on December 4, 1990. On March 24, 1992 this court stated that "in future cases" a prosecutor should inform the court of inattentiveness when perceived in order to preserve a proper record, or the prosecutor risks having a strike for inattentiveness disallowed. State v. Metts, 829 S.W.2d 585, 588 (Mo.App.1992). In Metts, we found the trial court's denial of a Batson motion was not clearly erroneous even though the strike was based on inattentiveness that was not noted by the prosecutor. Id. at 588. The voir dire in this case preceded our decision in Metts. The prosecutor's failure to note the inattentiveness at the time it occurred was not then necessary to preserve a proper record.

In his brief defendant argues for the first time that similarly situated white jurors were not struck by the prosecutor. This objection was not raised at the hearing. If a defendant fails to challenge the prosecutor's explanations in the trial court, the defendant may not challenge the state's explanation on appeal. State v. Kelly, 851 S.W.2d 693, 697 (Mo.App.1993); State v. Jackson, 809 S.W.2d 77, 81 (Mo.App.1991). In this case, defense counsel's only objection was to the state's failure to make a record. Defendant made no attempt to show the state's reasons were pretextual and accordingly failed to sustain his burden of proof. State v. Hudson, 822 S.W.2d 477, 481 (Mo.App.1991). This point is denied.

II.

Defendant next contends that the trial court plainly erred in submitting MAI-CR3d 302.04 defining reasonable doubt. This point has been thoroughly and repeatedly addressed by the Missouri Supreme Court. State v. Twenter, 818 S.W.2d 628, 634 (Mo. banc 1991). This court is constitutionally bound to follow the last controlling decision of the Supreme Court of Missouri. State v. Weems, 800 S.W.2d 54, 58 (Mo.App.1990).

Defendant argues that the decision of the United States Supreme Court in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), cert. denied, 502 U.S. 874, 112 S.Ct. 211, 116 L.Ed.2d 170 (1991) invalidates MAI-CR3d 302.04's definition of proof beyond a reasonable doubt. The Missouri Supreme Court has explicitly held that MAI-CR3d 302.04 meets the constitutional requirements for a definition of reasonable doubt and is unlike the charge at issue in Cage which equated proof beyond a reasonable doubt with a lower standard. State v. Griffin, 848 S.W.2d 464, 469 (Mo. banc 1993). This point is denied.

III.

For his last point defendant con...