State v. Baker

• Decision Date: 09 June 1975
• Docket Number: No. 58117,58117
• Citation: 524 S.W.2d 122
• Parties: STATE of Missouri, Respondent, v. Lawrence BAKER, Appellant.
• Court: Missouri Supreme Court

Page 122

524 S.W.2d 122

STATE of Missouri, Respondent, v. Lawrence BAKER, Appellant.

No. 58117.

Supreme Court of Missouri, En Banc.

June 9, 1975.

Motion for Rehearing or to Modify Denied July 14, 1975.

John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.

Robert G. Duncan, Duncan & Russell, William E. Shull, Austin F. Shute, Kansas City, for appellant.

Ralph L. Martin, Pros. Atty., Jackson County by Robert Frager, Asst. Pros. Atty., Kansas City, Amicus Curiae.

FINCH, Judge.

Appellant, tried by a jury on an information containing three counts, two charging murder in the first degree and one robbery in the first degree, was found guilty on all three counts. He was sentenced to life imprisonment on each murder count and to imprisonment for 99 years on the robbery count. Citing § 546.480, ¹ the trial court ordered the sentences to run consecutively. An appeal was taken to this court. We retain jurisdiction thereof pursuant to the general order of this court dated April 9, 1973.

This appeal was heard originally in Division One where an opinion reversing and remanding for new trial was written but not adopted. The case then was transferred to the court en banc where it was reargued. Portions of the opinion written in Division One are utilized herein without the use of quotation marks. We reverse and remand for resentencing.

Appellant does not question the sufficiency of the evidence. The jury reasonably could find therefrom that: On November 20, 1971, John D. Kemp was the manager of a Conoco service station at 75th and Prospect, Kansas City, Jackson County, Missouri; that William G. Simmons was an employee of Mr. Kemp; that around 10:00 p.m., Lawrence Baker and Amos Alonzo Wright entered the station armed with pistols; that they confronted the station personnel and demanded money from the cash register; that after they obtained the money, they shot and killed both station attendants; that $105, taken in the robbery, was divided between the robbers.

Appellant, in his motion for new trial and in his original brief in this court, asserts that the court erred (1) in overruling his motion to discharge the trial jury and declare a mistrial 'in that the State, through the prosecutor, deliberately and wilfully used its peremptory challenges to strike all Negroes from the jury panel and has done so for many years in all similar jury cases, thus denying the defendant's right to a fair trial' and (2) in failing to hold an evidentiary hearing on said motion.

These contentions arise in these circumstances:

Upon conclusion of the voir dire examination of prospective jurors, the State and defense made their peremptory challenges. The State exercised four of its fifteen challenges to remove the four Negroes from the panel, and defendant then filed a verified motion to declare a mistrial and discharge the jury. The motion included these allegations:

'3. The State, through its representative, John T. Peak, used its peremptory challe(n)ges to strike each and every Negro on the venire panel, thus excluding Negroes from the petit jury.

'4. That the State, through John T. Peak, by using the peremptory challenges to strike Negroes in case after case, whatever the circumstances may be, but particularly where the accused is a Negro, is responsible for the removal of Negroes who have been selected as qualified jurors by the Jury Commissioner and who have survived challenges for cause.

'5. That the practice by the State of systematically excluding Negroes from a petit jury denies Defendant equal protection of the law and is contrary to the Fourteenth Amendment of the Constitution of the United States.'

Appellant's contentions do not dispute that the qualification of veniremen is a matter within the discretion of the trial court. State v. Wilson, 436 S.W.2d 633 (Mo.1969). Neither does he dispute that the State may use its peremptory challenges to remove Negroes from the jury in a particular case. See, e.g., Brown v. State, 470 S.W.2d 543 (Mo.1971); State v. Davison, 457 S.W.2d 674 (Mo.1970).

Appellant's charges of abuse of discretion in this case are based upon a quotation from Swain v. Alabama, 380 U.S. 202, 223--24, 85 S.Ct. 824, 837, 13 L.Ed.2d 759 (1965), where the Court said:

'We have decided that it is permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance . . . In these circumstances, given even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purpose of the peremptory challenge are being perverted. If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify.'

Appellant asserts that the allegations of the verified motion, if taken as true, bring his case within the quoted pronouncement; and that if not accepted as true, the court erroneously denied him a hearing to make such proof. We disagree.

Although the appellant adopts some of the language of Swain v. Alabama, supra, to frame his motion, he does not allege facts necessary to prove the kind of discrimination condemned by that case. In Swain, the defendant alleged and proved that no blacks had sat on a petit jury in a particular county for a period of fourteen years. But even this was not enough; the United States Supreme Court held that he must also show the prosecutor's responsibility for such a result, since defense counsel share at least an equal role in the peremptory process. In the case before us, the defendant did not allege that there have been no blacks on petit juries for any given period of time, which allegations might give rise to a fair inference of improper discrimination and abuse of the peremptory challenge. Furthermore, the defendant emphasized that blacks have been excluded 'particularly where the accused is a Negro.' The clear inference from this allegation is that Negroes are not excluded from juries when the defendant is not a Negro. The assumption that this allegation shows a violation of Swain indicates a misreading of that case. To comport therewith the defendant must allege that the exclusion of blacks is made 'in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be . . . with the result that no Negroes ever serve on petit juries . . ..' 380 U.S. at 223, 85 S.Ct. at 837. (Emphasis added.) The motion was properly overruled without hearing.

Appellant next charges that the court erred in failing to instruct the jury 'that the defendant had the right not to take the stand and testify and that such action should not be held against him in that the jury may have considered the defendant's failure to testify in arriving at its verdict.' An instruction to that effect was tendered by defendant but it was refused by the trial court.

A long line of Missouri cases have held that it is not error to fail to instruct the jury on a defendant's right not to take the stand and testify. Some of the more recent cases so holding include State v. Sawyer, 484 S.W.2d 242 (Mo.1972); State v. Hutchinson, 458 S.W.2d 553 (Mo. banc 1970); and State v. Deiter, 446 S.W.2d 609 (Mo.1969). Appellant recognizes that this has been so but contends that the rule should be changed, citing in support thereof the concurring opinion of Judge Donnelly in State v. Hutchinson, supra, wherein he expressed the view that such an instruction is permissible under Missouri law and that in future cases such an instruction should be given if defendant does not object thereto.

Subsequent to the decision in Hutchinson, Rule 26.08 ² was amended effective September 1, 1973 (which was after the trial of this case) to provide that if a defendant does not testify and he so requests, but not otherwise, the court shall instruct the jury that 'under the law, a defendant has the right not to testify. No presumption of guilt may be raised and no inferences of any kind may be drawn from the fact that the defendant did not testify.' See also MAI-CR 3.76 and Notes on Use, effective January 1, 1974. The fact that our court has concluded to amend our rules and to provide in our pattern criminal instruction volume that on and after September 1, 1973, such an instruction shall be given if requested by a defendant does not mean that refusal of the instruction at the time this case was tried was reversible error or that appellant is entitled to a new trial on that basis. As Judge Donnelly's concurring opinion in Hutchinson recognized, such an instruction is not constitutionally required.

Finally, in a pro se brief filed by appellant in Division One, supplemented before the court en banc by an additional brief by counsel for appellant, we are requested, under Rule 27.20(c) (the plain error rule), to consider two additional propositions. First, it is contended that appellant was entitled to a separate jury trial on each...