State v. Carter

• Decision Date: 10 October 1978
• Docket Number: No. 59802,59802
• Citation: 572 S.W.2d 430
• Parties: STATE of Missouri, Respondent, v. Charles Jackson CARTER, Appellant.
• Court: Missouri Supreme Court

Page 430

572 S.W.2d 430

STATE of Missouri, Respondent, v. Charles Jackson CARTER, Appellant.

No. 59802.

Supreme Court of Missouri, En Banc.

Oct. 10, 1978.

Rehearing Denied Nov. 6, 1978.

Doris Gregory Black, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Defendant, found guilty of assault with intent to kill with malice aforethought, § 559.180, RSMo 1969, and of carrying a concealed weapon, § 564.610, RSMo 1969 was sentenced to consecutive terms of forty and five years on the respective charges.

Numerous contentions of error are presented which we shall discuss in the following order: (1) In four constitutional challenges to the composition of the jury, defendant asserts (a) that the number of blacks on the panel compared to the number in the general population of St. Louis City demonstrates impermissible racial discrimination in the jury selection process; (b) that § 494.031, RSMo Supp.1975, in derogation of defendant's constitutional rights, excludes women from jury service; (c) that § 494.010, RSMo 1969, deprives him of the right to a representative jury by excluding persons eighteen to twenty-one years of age and (d) that § 494.010 is "vague and overbroad," in allowing the jury commissioner of St. Louis arbitrarily to exclude qualified veniremen. Defendant also claims the trial court erred in: (2) admitting in evidence a pocket knife and pistol seized following a warrantless arrest made without probable cause; (3) permitting tainted in-court identification of defendant; (4) admitting testimony concerning defendant's extra-judicial statements not delivered to defense counsel during pretrial discovery; (5) allowing the testimony of two children under the age of ten, and (6) "in not sustaining defendant's motion for new trial." We affirm.

While Virgil Little, age seven, and Rondel Little, Jr., age eight, were sitting on the front porch of their South Ninth Street home in St. Louis late in the afternoon of July 24, 1975, a man approached and asked if they would like "a soda" or "a ride." When they demurred, the man dragged Virgil two blocks to a vacant lot and stabbed him four times about the rectum with a pocket knife. Rondel, Jr., saw the stabbing and ran to his house to get his father. When Rondel, Sr., reached the corner of his block, he saw his son lying on the ground with the attacker standing over him. The father, who viewed the man only from the back, chased the assailant some distance before losing him.

Police officers talked to Virgil's brother and father at the hospital, where Virgil had been taken for treatment. The father described his son's assailant as a black man wearing dark trousers and a black shirt with a white flower pattern, about 5'8 or 5'9 in height. Rondel, Jr., told the officers that the man had a beard of a particular type, that he was "rather tall" and in his twenties, and that he was wearing dark trousers and a black shirt with white flowers. He also told them of a light-colored car in which the assailant and another person were seated before the assailant approached the boys.

A woman who claimed to have witnessed the incident spoke to Mr. Little while at the hospital and gave him the license number of the car in which the assailant had ridden. She refused Mr. Little's request to talk to the police. Mr. Little knew where she had once lived but did not know her name and subsequent efforts to locate her were unsuccessful. It was later in the evening before Mr. Little was able to pass this information to the officers; however, while officers were still at the hospital, a woman phoned asking for the "policemen handling the assault case." She did not give her name, but described the man as a black male in his twenties wearing a black shirt with white flowers, who had ridden in a tan car and she gave them the license number of the car.

Obtaining the street address of the party to whom the license plate was issued, Officers Holdenreid and Harris proceeded there and found a cream-colored auto, with four occupants, bearing the plate described by the informant. Defendant, who was sitting in the rear seat, matched the description the officers had obtained so they ordered him from the car and arrested him. In the ensuing search of his person they found a fully loaded .22 automatic and a pocket knife. Defendant was promptly advised of his rights under Miranda, and transported to police headquarters.

About 9:00 p. m., wearing a black shirt with white flowers defendant was placed in a lineup with four other men, one of whom was wearing a flowered shirt of a different color. The difference in height among some of the participants may have been a matter of inches; however, they were described as fitting the general height and description of the defendant, including facial hair. Rondel Little, Jr., and his father viewed the lineup at the same time and though Rondel, Sr., could identify only defendant's clothes as the same as the assailant's, the boy without prompting pointed out defendant as the attacker.

According to the officers, defendant, who was again advised of his rights, asked what the charges were and when told "carrying a concealed weapon and assault," stated that "he was good for the gun charge but didn't know anything about any black boy, white boy or even a blue boy." On the other hand, defendant testified that after he had been told of the charges, he asked why he was being booked for assault and the officers answered "child molestation," to which he replied, "I didn't child molest no kid." He testified that during this time he heard another officer "sitting from a distance" mention that a white child was involved.

At the hearing on defendant's motion to suppress, Rondel, Jr., was unable to identify the defendant. However, on viewing a photograph of the lineup at the police station, he pointed to the person in the photo he had identified at the lineup. At trial the same day, he again indicated defendant in the photo as the person whom he had identified at the lineup and pointed out defendant in the court room. On cross-examination, he testified that his failure to make an identification of the defendant at the suppression hearing occurred because he had not looked at the man to whom the prosecuting attorney had pointed. During the suppression hearing, Virgil, the seven year old victim, was unable to identify defendant as his attacker except to describe the man as a black wearing a flowered shirt. Defendant offered an alibi defense to the charge of assault but admitted he was carrying the gun illegally.

Defendant's constitutional attack on the composition of the jury first centers on its racial composition. In support of the oral motion made immediately before trial to strike the array, defense counsel noted that it contained twice as many whites as blacks. The jury eventually chosen contained only two blacks. Defense counsel without documentation or suggestion of proof asserted that the black population of St. Louis is "around 40 to 50 percent," and claimed denial of defendant's right to a jury of his peers under the sixth amendment of the federal constitution made applicable to the states by the fourteenth amendment, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

The Court in Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975), stated:

We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment . . . . Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.

That blacks form an "identifiable segment . . . in the community" needs no proof. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). However, more than bare assertions of counsel are required to show a constitutionally impermissible exclusion of an identifiable class from a panel. ¹

It is clear that the accused has the burden of presenting a prima facie case of racial discrimination before the state is required to justify its jury selection procedures. Alexander v. Louisiana, 405 U.S 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). A prima facie case may be shown by demonstrating the statistical improbability that the observed discrepancy between the proportions of class members called to jury duty and of the class members to the population of the jurisdiction would occur by chance, together with the opportunity for subjective choice by officials during the selection process. Alexander v. Louisiana, supra; Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). Additionally, a prima facie case may be made on a showing of an almost-complete exclusion of the class (whatever the selection procedures), for a significant period of time. This has been described as the "rule of exclusion." Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). See also Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

Defendant failed in his proof. Had the court been free to take judicial notice of the proportion of blacks in the population of the City of St. Louis, defense counsel pointed out the composition of only a single jury panel and petit jury in support of the claim of discrimination. ² Nothing was offered showing repeated exclusion of an ostensibly neutral selection procedure, nor a procedure under which a subjective evaluation of potential jurors could hide discrimination. There was no proof as to racial composition or of the method of name selection for the "wheel" for the year or other representative period, nor are we told of the selection process or racial composition of the panel by months, weeks or days from which the array presented on the day of trial was...