State v. Butler

• Decision Date: 07 April 1987
• Docket Number: No. WD,WD
• Citation: 731 S.W.2d 265
• Parties: STATE of Missouri, Respondent, v. Michael E. BUTLER, Appellant. 38422.
• Court: Missouri Court of Appeals

Page 265

731 S.W.2d 265

STATE of Missouri, Respondent, v. Michael E. BUTLER, Appellant.

No. WD 38422.

Missouri Court of Appeals,

Western District.

April 7, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 2, 1987.

Application to Transfer Denied July 14, 1987.

Sean D. O'Brien, Public Defender, Justine E. Del Muro, Asst. Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before KENNEDY, P.J., and LOWENSTEIN and GAITAN, JJ.

LOWENSTEIN, Judge.

Butler appeals his conviction for robbery and armed criminal action arguing, (1) the prosecutor improperly struck all blacks from the jury, (2) MAI-Cr2d 1.02, and 2.20 incorrectly define reasonable doubt and (3) the trial court admitted irrelevant, immaterial and prejudicial evidence.

Because Butler's first point is dispositive, only the facts relevant to that point will be set out. Butler and two others were arrested and charged in connection with the robbery of the Meyer Jewelry Store. Butler is black. The Meyer employees and most of the state's trial witnesses were white. Six blacks were among the thirty-six member jury panel at voir dire; all six were passed for cause. The prosecutor then used her six peremptory challenges to strike all the black jurors. The defense, noting the struck jurors were black, moved to quash the jury on the grounds Butler's fifth amendment due process rights and sixth amendment right to a fair and impartial jury had been violated. The motion was overruled. Butler was tried by an all-white jury, convicted of robbery and armed criminal action and sentenced to twenty-five years imprisonment.

At the hearing on the motion for a new trial, Butler again claimed the prosecutor violated his constitutional rights by striking all the black jurors. Relying upon Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which was decided four days after the jury verdict, the court then had the prosecutor explain why she struck the black jurors. After hearing the explanations, the court denied the motion for a new trial on the grounds Batson was to be applied prospectively only and alternatively, because the prosecutor had met his burden under Batson. Butler now brings this appeal and in his first point, reasserts his claim that the prosecution improperly excluded blacks from the jury. His reliance upon Batson v. Kentucky is proper since Batson has retroactive effect and his objection was timely raised. Griffith v. Kentucky, 476 U.S. 79, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), State v. Antwine, No. 67720 (Mo. banc 1987).

In Batson, the black defendant was tried and convicted by an all white jury after the prosecutor used peremptory challenges to strike the only four blacks in the venire. The defendant had unsuccessfully objected to the strikes on sixth and fourteenth amendment grounds. Batson, 106 S.Ct. at 1713. The Supreme Court of Kentucky affirmed the conviction, relying upon the "near crippling burden of proof" required under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Batson, 106 S.Ct. at 1715-1716. On certiorari, the United States Supreme Court reversed the Kentucky Supreme Court and found the discriminatory use of peremptory challenges in a single case violates the Fourteenth Amendment. The Court held at 106 S.Ct. 1719:

The Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the state's case against a black defendant.

In Batson, the Court reaffirmed its commitment to equal protection principles and noted its "unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which the individual juries are drawn." Batson, 106 S.Ct. at 1716. Those efforts should extend to regulation of peremptory challenges because "the Fourteenth Amendment protects an accused throughout the proceedings bringing him to justice." Batson, 106 S.Ct. at 1718. Moreover,

The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.

Batson, 106 S.Ct. at 1717.

Discrimination within the judicial system is especially pernicious since it stimulates the same racial prejudice that the system and laws seek to prevent. Batson, 106 S.Ct. at 1717-1718.

The court then devised a procedure to enforce its holding. To make out a valid claim, the defendant must first establish a prima facie case of purposeful discrimination. This involves three steps. First, the defendant must show he is a member of a cognizable racial group and show the prosecutor used peremptory challenges to exclude members of his race. Next, the defendant may rely upon the fact that peremptory challenges permit "those to discriminate who are of a mind to discriminate." Batson, 106 S.Ct. at 1722 quoting Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). Finally, the defendant must show these and other relevant circumstances raise an inference of discrimination. Relevant circumstances include a "pattern" of strikes against black jurors included in the panel as well as the prosecutor's questions and statements during voir dire examination. Batson, 106 S.Ct. at 1723.

Once the defendant makes the prima facie showing, the burden of proof shifts to the prosecutor to provide a neutral explanation for striking black jurors. That explanation need not be sufficient to sustain a challenge for cause. However, the prosecutor may not merely state "he challenged jurors of the defendant's race on the assumption--or his intuitive judgment--that they would be partial to the defendant because of their shared race." Batson, 106 S.Ct. at 1723. Nor can the prosecutor simply deny he had a discriminatory motive or merely affirm his good faith. Instead, the prosecutor must "articulate a neutral explanation related to the particular case to be tried." Batson, 106 S.Ct. at 1723. The explanation must be "clear and reasonably specific" and contain "legitimate reasons" for challenging the black jurors. Batson, 106 S.Ct. at 1723, n. 20. After the prosecutor provides an explanation, it is the trial court's duty to decide whether the defendant has shown purposeful discrimination. Batson, 106 S.Ct. at 1723.

Butler relies on Batson to argue the prosecutor's explanations here did not rebut Butler's prima facie case of discrimination. This argument raises two questions. First, does any non-racial reason satisfy the "neutral explanation" required under Batson or must the trial judge determine that the explanations are bona fide and not "sham excuses belatedly contrived to avoid admitting acts of group discrimination"? People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 910, 583 P.2d 748, 768 (1978). Second, what criteria should be used to determine if an explanation is genuine? This question is particularly difficult since peremptory challenges ordinarily may be exercised, "for any reason at all, as long as that reason is related to [the prosecutor's] view concerning the outcome of the case to be tried." Batson, 106 S.Ct. at 1719 quoting United States v. Robinson, 421 F.Supp. 467, 473 (D.Conn.1976), mandamus granted sub. nom. Indeed, the trial judge here struggled with this question and seemed constrained to accept the explanations at face value.

The first question is answered both explicitly and implicitly in Batson. Batson states the explanation must be (1) neutral, (2) related to the case to be tried, (3) clear and reasonably specific, and (4) legitimate. Although the explanation need not rise to the level of a challenge for cause, it still must satisfy these requirements. Batson also implicitly approves inquiry into the legitimacy of the explanations because otherwise Batson would become a right without a remedy. " Rubber stamp" approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson's commitment to "ensure that no citizen is disqualified from jury service because of his race." Batson, 106 S.Ct. at 1723. Without some form of inquiry, a prosecutor could easily conceal his true reason for removing black jurors by simply inventing "neutral" reasons for the strikes. Batson, 106 S.Ct. at 1728 (Marshall, J., concurring), see also Stewart, Court Rules Against Jury Selection Based on Race, 72 A.B.A.J. 68, 70 (1986) ("[A]ny prosecutor's office could develop a list of 10 or 15 standard reasons for striking a juror: the juror was 'inattentive' or dressed poorly and thus 'did not seem to respect the system of justice' "). Batson would then merely reinstate, in another form, the "mission impossible" of Swain. See McCray v. Abrams, 750 F.2d 1113, 1120-21 (2nd Cir.1984), vacated and remanded, 478 U.S. 1001, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986). Batson surely cannot be read to produce such an anomalous result.

There are a number of factors a trial judge may use to assess the legitimacy of the explanations provided by the prosecutor. All demand of the trial court:

A sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or preemptorily,

People v. Hall, 35 Cal.3d 161, 167-168, 197 Cal.Rptr. 71, 672 P.2d 854 (1983). First, the susceptibility of the particular case to racial discrimination may be evaluated. United States v. Mathews, 803 F.2d 325, 332 (7th Cir.1986), Rodgers v. State, 725 S.W.2d 477 (Tex.App.1987), People v. Wheeler, 148 Cal.Rptr. at 906, 583 P.2d at 764. The court may consider...