State v. Barnett

• Decision Date: 24 November 1998
• Docket Number: No. 79985,79985
• Citation: 980 S.W.2d 297
• Parties: STATE of Missouri, Respondent, v. David BARNETT, Appellant.
• Court: Missouri Supreme Court

Page 297

980 S.W.2d 297

STATE of Missouri, Respondent, v. David BARNETT, Appellant.

No. 79985.

Supreme Court of Missouri En Banc.

Nov. 24, 1998.

As Modified on Denial of Rehearing

Dec. 22, 1998.

William J. Swift, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for Respondent.

STEPHEN N. LIMBAUGH, Jr., Judge.

A St. Louis County jury convicted David Michael Barnett of two counts of first degree murder, one count of first degree robbery, and two counts of armed criminal action. Barnett was sentenced to death for each of the two murder counts and consecutive life sentences for the robbery and armed criminal action counts. This Court has jurisdiction of the appeal because the death sentence was imposed. Mo. Const. art. V, sec. 3. The judgment is affirmed.

I. FACTS

The following facts have been compiled from this Court's independent review of the evidence adduced at trial. ¹ This Court reviews that evidence in the light most favorable to the verdict. State v. Rousan, 961 S.W.2d 831 (Mo. banc 1998).

During January and the first few days of February 1996, David Barnett had been living with friends in the Glendale area. He had spoken several times to his friends about his grandparent's car, a 1995 Dodge Intrepid, and had told them that his grandparents were going to rent this car to him. About 8:00 a.m. on Sunday, February 4, 1996, Barnett walked to the home of his grandparents, who were away attending Sunday school and church services at the Kirkwood Baptist church. Barnett entered the home, apparently through a bedroom window, sat down on the couch, turned on the television, and soon fell asleep. When he awoke, he phoned his stepbrother Scott and boasted that he had just won the lottery last night and had suddenly come into of a large sum of money.

Barnett was waiting for his grandparents when they returned home around 1:00 p.m. He confronted his grandmother and pushed her down in the hallway. He then pushed his grandfather to the floor and grabbed a knife that was lying on the nearby kitchen table. As his grandfather rose from the floor, Barnett kicked him in the head, and when he fell to the floor again, Barnett stabbed him repeatedly in the neck area. All told, Barnett inflicted ten stab wounds and numerous cuts to his grandfather's neck, face and hands. Satisfied that he had killed his grandfather, Barnett returned to the kitchen to get another knife and then began stabbing his grandmother in her neck as well. Once again, Barnett returned to the kitchen to get more knives. This time he retrieved two knives with which he continued to stab his grandmother until she, too, was killed. She suffered a total of 12 stab wounds to her neck and numerous cuts to her face.

After the attack, Barnett concealed one of the knives by placing it between two mattress pads in his grandparents' bedroom. Next, he went into the bathroom and washed the blood off his hands. He then removed the keys to the 1995 Dodge Intrepid that were dangling from the lock in the back door, retrieved his coat, and took approximately 120 dollars from his grandmother's purse. Before leaving the house, Barnett stood silently next to his victims to hear if they were still breathing. After determining that his victims were dead, Barnett lowered two of the shades in the house, locked up, and drove off in the victims' car.

Early the next morning, police officers found the victims' car parked in a residential area of Glendale. Barnett walked up to the uniformed officers and confessed that he had committed the murders.

II. VOIR DIRE

1. Gender Batson

Barnett claims that the trial court erred in overruling his objections to the state's peremptory removal of three female venirepersons in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). The Equal Protection Clause, as interpreted in Batson, prohibits the use of peremptory strikes to exclude jurors on the basis of race. Batson v. Kentucky, 476 U.S. at 97, 106 S.Ct. 1712. The Batson analysis was extended in J.E.B. to prohibit the use of gender-based strikes. J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 146, 114 S.Ct. 1419.

Missouri has adopted a three-step procedure for a Batson challenge. First, the defendant must object to the state's peremptory strike by identifying the protected group to which the venireperson belongs. State v. Nicklasson, 967 S.W.2d 596, 613 (Mo. banc 1998). The state must then provide a reasonably specific, clear, race-neutral and/or gender-neutral explanation for the strike. Id. Once the state provides a legitimate explanation, the burden shifts to the defendant to show that the state's explanation was pretextual and that the strike was actually motivated by the venireperson's race or gender. Id. This Court will reverse the trial court's decision on Batson challenges only upon a showing of clear error. Id.

a. Venireperson Straub

Barnett contends that venireperson Straub was improperly struck from the jury panel because the prosecutor admitted that the strike was motivated by the fact that Straub was a female. At trial, the prosecutor explained her action by stating:

I struck this juror because, as I said previously, I'm concerned about having weak people on this jury. I want people who I feel comfortable with being able to not only consider the death penalty but actually be able to do it. This is a very young female who is single. And I believe that because of that circumstance that she would not be a good state's juror.

The prosecutor's response, in context, is that Ms. Straub was struck because she was "very young" and "single," not because she was "female." The words, "very young" and "single" are the focal points of the state's explanation--the operative words that the state used to verbalize why this particular venireperson was struck. Age and marital status are race-neutral, gender-neutral factors that the state may properly consider when making peremptory strikes. State v. Smith, 944 S.W.2d 901, 912 (Mo. banc), cert. denied, --- U.S. ----, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997) (age); State v. Davis, 936 S.W.2d 838, 841 (Mo.App.1996) (marital status). The point is denied.

b. Venireperson Moore

Barnett also claims that venireperson Moore was improperly struck because she, too, was female. The prosecutor explained the strike as follows:

My concern with Ms. Moore is that she never answered any questions at all. There is just - I don't have a lot of information from her. And I don't feel comfortable with her not expressing any opinions or having any responses to questions that were posed. And I am just uncomfortable with the fact that she didn't answer any questions, and I struck her for that reason. She's an unknown person in that group.

A prospective juror's silence, like Ms. Moore's silence in this case, is a permissible, facially neutral explanation for a peremptory strike. State v. Hughes, 944 S.W.2d 247, 248 (Mo.App.1997); State v. Ashley, 940 S.W.2d 927, 931 (Mo.App.1997); see also State v. Smulls, 935 S.W.2d 9, 15 (Mo. banc 1996). The reason is obvious: The state should not be required to take a risk on a prospective juror about whom little information is known.

Nonetheless, Barnett contends that the prosecutor's stated rationale for striking Ms. Moore was merely pretextual because Moore was not silent, as the prosecutor claimed, and in any event, two similarly situated men were not struck. As to Ms. Moore's alleged silence, Barnett correctly points out that she did respond to at least one question. She answered "Yes" when the prosecutor asked if she could sign a death sentence verdict form if she served as the jury's foreperson. Although this lone response was not absolute silence, it still gave only scant indication of Ms. Moore's disposition. Without more information, the prosecutor's strike was justified.

Barnett is also correct that the prosecutor declined to strike two men who had not responded to voir dire questions. While the existence of similarly situated white or male jurors who were not struck is some proof of pretext, it is not dispositive. State v. Nicklasson, 967 S.W.2d at 613. On these facts alone, this Court is unwilling to hold that the trial court committed clear error. The point is denied.

c. Venireperson Gulley

The state also challenged venireperson Gulley for cause because she "expressed some concern about being able to impose the death penalty" and because the prosecutor believed that the proceeding was "a bit overwhelming for her." On appeal, Barnett's sole point is that the record refutes that Ms. Gulley "expressed some concern about being able to impose the death penalty." However, this contention, even if true, is a different contention than that Barnett raised in the motion for new trial. There, Barnett's point was that the state's reason for the strike--that Ms. Gulley "worked in education"--was pretensive because the state did not strike a similarly situated venireperson. The point now made was not preserved for appeal and therefore is waived. State v. Hubert, 923 S.W.2d 434, 437 (Mo.App. 1996); see State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998) ("To preserve an objection to evidence for review, the objection must be specific, and the point raised on appeal must be based upon the same theory.").

2. Strike for Cause

Barnett next argues that the trial court abused its discretion when it upheld the state's strike for cause of venireperson Darris. The basis of the strike was that Ms. Darris could not consider the death penalty and follow the law. The test for determining whether venirepersons should be excused for cause during the death-qualification phase of voir dire is whether their views would prevent or substantially impair the performance of their duties as jurors in accordance with the instructions and their...