State v. Booker, 35532

• Decision Date: 12 November 1974
• Docket Number: No. 35532,35532
• Citation: 517 S.W.2d 937
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Willie James BOOKER, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 937

517 S.W.2d 937

STATE of Missouri, Plaintiff-Respondent, v. Willie James BOOKER, Defendant-Appellant.

No. 35532.

Missouri Court of Appeals, St. Louis District, Division One.

Nov. 12, 1974.

Motion for Rehearing or Transfer Denied Dec. 6, 1974.

Application to Transfer Denied Feb. 10, 1975.

Joseph W. Downey, Asst. Public Defender, St. Louis, Bernard Edelman, Asst. Public Defender, Clayton, for defendant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Donald R. Bird, Asst. Attys. Gen., Jefferson City, Gene McNary, Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.

DOWD, Chief Judge.

Defendant Willie James Booker was convicted by a jury in the Circuit Court of St. Louis County of the offense of sodomy (Section 563.230, RSMo 1969, V.A.M.S.) and sentenced under the Second Offender Act (Section 556.280, RSMo 1969) to a term of seventy-five years imprisonment. This appeal followed.

Defendant was tried on April 23--25, 1973. At voir dire the prosecuting attorney, over defendant's objection, used peremptory strikes to remove all five black jurors from the jury panel of thirty persons. As a result, defendant was tried by an all-white jury. Defendant is black. The victim and principal witness for the state, Richard Kester, is a 17 year old white.

Richard Kester testified to the following. He was arrested on August 22, 1972, for selling marijuana. He was placed in St. Louis County Jail because he was unable to make bond. He was placed in an unlocked cell. That evening a man who Kester positively identified as defendant came to his cell. The defendant ordered Kester's cellmate to leave. Kester testified, over the objection of defendant, that 'he (defendant) told me that he was in for murder and armed robbery, and that he listed a bunch of other crimes but I really don't remember what they were, and told me that he had forty years to serve and asked what I was in for. And I told him that I was in for drugs.' Defendant laughed.

Defendant left for a minute, returned, and then told Kester again that he was in for armed robbery and murder and 'that he had nothing to lose because he had forty years to serve, and that when he wanted something he was going to get it. And he told me that he wanted me, and he told me like . . .' Defendant then told Kester that he was going to 'make me.' Defendant slapped Kester, pulled his pants down, and, using a lubricant, performed an act of anal sodomy on him.

Later, defendant returned. He slapped Kester's cellmate, and took Kester to another cell, where two other inmates performed acts of sodomy on him. Defendant then returned Kester to his cell, and again sexually assaulted him. Kester was very frightened.

Afterwards, defendant warned Kester and his cellmate not to tell the authorities about the attacks and told them that he had a fire hatchet which he had stolen from the metal shop and a knitting needle to back up his threats. Defendant described the knitting needle as having a handle on it. Defendant stated he was going to stick it through the ear of Kester's cellmate.

The next day while he did not inform his social worker of the attacks, Kester did inform the warden. The chief of custody of the jail sent Kester to obtain a medical examination.

Doctor Henry Ollinger, the examining physician, testified to the results of the examination. He found a thin layer of lubricant around Kester's anus and perianal area but no sign of trauma or semen. He stated that a trauma was not necessarily expected to be found as a result of a rectal sodomy and this was especially true if a lubricant was used and that a bowel movement could explain the absence of semen. Doctor Ollinger stated that Kester told him he had a bowel movement after the attacks. Doctor Ollinger stated that his findings were consistent with, but not diagnostic of, anal sodomy.

Kester had identified defendant at a lineup the following day.

The defendant testified in his own behalf and admitted that he had prior convictions of burglary in the second degree and stealing, stealing from a person, burglary in the first degree and two convictions for rape.

Defendant testified that he was with Kester in the jail, but denied slapping Kester or assaulting him. He further testified that he had never been convicted of murder and did not have a murder charge pending against him at the time of the trial.

Defendant further testified that he had a conversation with Kester and that Kester stated that he had read in a newspaper about a prisoner being released from jail after the prisoner told the warden he had been attacked by other prisoners; and that Kester was going to tell the warden he had been attacked and asked the defendant if he would back him up on this story. Defendant stated that he refused to verify this story. Defendant stated that he obtained breakfast for Kester the following morning because Kester had overslept and would have missed breakfast otherwise. According to the defendant, Kester later told the defendant that he would be sorry he did not back up his story.

Another inmate, Gale Brown, testified that he did not see an attack on Kester.

After receiving instructions which are not challenged here, the jury returned a verdict of guilty. Defendant moved for a judgment of acquittal, or in the alternative, for a new trial. He asserted, among other grounds, that: (1) the use of peremptory challenges to remove all five black prospective jurors denied the defendant the right to a trial by an impartial jury of his peers, and (2) the court erred in allowing Kester to testify to defendant's alleged statements that he had prior convictions and had been sentenced to forty years.

A hearing was held on the motion, at which a reporter for a local newspaper was the only witness. Defendant attempted to establish through the reporter's testimony that the prosecuting attorney of St. Louis County had, for a period of one and one half years including the time of defendant's trial, systematically excluded blacks from jury panels in cases involving black defendants. The reporter had observed most of the jury panels in cases involving black defendants from November, 1971, through May, 1973. Other persons had reported to him the disposition of prospective black jurors in other cases.

The reporter observed fifty-two jury panels. Ninety-four blacks were on these panels. Of these, twelve were alternates and never subject to challenge. Of the remaining eighty-two potential black jurors, fifty-seven were peremptorily struck by the state. Five were peremptorily struck by defendants; another five were struck for cause by either side. Fifteen black jurors actually served on trial juries involving black defendants. About sixty-eight per cent of prospective black jurors were removed by the state's use of peremptory strikes.

Defendant's post-trial motion was denied.

The trial court, taking note of defendant's lengthy record of prior arrests and convictions, which numbered thirty-five arrests and four felony convictions, sentenced him to a prison term of seventy-five years. Defendant appeals.

Defendant's first point on appeal is that 'the prosecuting attorney exercised peremptory challenges to exclude all black veniremen as part of a systematic exclusion of blacks from jury panels, thus violating defendant's right to an impartial jury of his peers representing a cross section of the community.' Defendant raised this issue below by objecting to the jury as finally impaneled. To sustain this point defendant relies upon the testimony of the newspaper reporter as set out above. Defendant argues that this evidence shows a systematic exclusion of blacks from juries.

The issue here does not concern the exclusion of blacks from the jury rolls, a practice held unconstitutional in Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), and the exclusion of persons of Mexican descent from the jury rolls which was also held unconstitutional in Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). Nor is it a case challenging the selection of grand juries or the petit jury venires, as was the first issue in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). It is strictly a challenge of the use of peremptory strikes in St. Louis County. Defendant's argument is that the case of Swain v. Alabama, supra, requires us to reverse the trial court and award defendant a new trial. We disagree.

Our own Missouri Supreme Court has examined Swain v. Alabama in State v. Davison, 457 S.W.2d 674, 677 (Mo.1970). The contention in Davison was that the Missouri system of peremptory challenges was unconstitutional. After upholding the constitutionality of the statute authorizing peremptory challenges, the court went on to note language from Swain that 'when there is proof that '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 . . . 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 Swain, 26% of the population eligible for jury selection was black in the Alabama community, but only 10--15% of jury panels was black. Also, while there was an average of 6--7 Negroes on petit juror venires in criminal cases, no Negroes had actually served on a petit jury for the preceding fifteen years. Eight of the venire panel in Swain were Negroes; two were exempt and the remaining six Negroes were struck by the prosecution. In Swain, the record was held insufficient to establish consistent and systematic exclusion of black jurors by the state.

The question boils down to this: Has defendant shown a consistent and systematic exclusion of blacks from juries in St. Louis County? Following Swain, we are...