State v. Crenshaw
| Decision Date | 27 April 1993 |
| Docket Number | Nos. 17242,18209,s. 17242 |
| Parties | STATE of Missouri, Respondent, v. Alfea Lemar CRENSHAW, Appellant. and Alfea Lemar CRENSHAW, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Ellen H. Flottman, of Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
In case number CR590-238F ("case 238"), a jury found Alfea Lemar Crenshaw ("Appellant") guilty of the class A felony of trafficking drugs in the second degree, § 195.223.3(2), RSMo Cum.Supp.1989, and assessed punishment at 21 years' imprisonment. On November 6, 1990, the trial court imposed that sentence.
The same date, in the same court, pursuant to a plea agreement, Appellant entered pleas of guilty in these cases:
CR590-429F ("case 429"):
Tampering with a witness.
CR590-432F ("case 432"):
Count I, possession of cocaine;
Count II, delivery of cocaine.
CR590-474F ("case 474"):
Conspiracy to murder.
Per the agreement, the trial court imposed the following prison sentences:
Case 429: 7 years, to run concurrently with sentence in case 238.
Case 432: Count I, 7 years; Count II, 10 years; to run concurrently with each other and concurrently with sentences in cases 238 and 429.
Case 474: 15 years, to run concurrently with sentences in cases 238, 429 and 432.
As part of the agreement, the State dismissed case number CR590-473F, trafficking drugs in the second degree.
Appellant filed a notice of appeal in case 238; that appeal is number 17242.
Appellant thereafter filed a single pro se motion seeking postconviction relief in all four cases, obviously intending to invoke Rule 24.035 1 as to cases 429, 432, and 474, and Rule 29.15 as to case 238. 2 The motion court conducted an evidentiary hearing, issued findings of fact and conclusions of law, and entered judgment denying relief.
Appellant brings appeal number 18209 from the motion court's judgment. We consolidated appeal 17242 with appeal 18209. Rule 29.15(l).
By appointed counsel, Appellant presents three points relied on (I, II, III) in appeal 17242, and one point relied on (IV) in appeal 18209. Pro se, Appellant presents two points relied on (V, VI) in appeal 17242. We address the appeals separately.
Appellant does not challenge the sufficiency of the proof to support the verdict, hence we need not summarize the evidence.
Point I avers the trial court erred "in failing to sua sponte strike the entire venire panel" following a remark by a member of the venire during voir dire. The prosecutor had asked whether anyone was acquainted with Appellant, whereupon this exchange occurred:
MARY KLINKHARDT: I'm a licensed bailbondsman and we have had Mr. Crenshaw out on bond. I don't have him on this particular case. I have had him before.
Q. Would that fact alone, Mrs. Klinkhardt, prevent you from giving both the Defendant and the State of Missouri a fair trial today?
A. No, sir, it would not.
Appellant's lawyer 3 requested no relief. Later, however, he did successfully challenge Ms. Klinkhardt for cause.
Appellant maintains Ms. Klinkhardt's comment "tainted" the entire venire, as it "constituted improper reference to other crimes of Appellant from which the jury could have inferred guilt as to the instant offense." Appellant concedes that because no relief was requested when the incident occurred, relief is available on appeal only under the plain error rule.
Relief under the plain error rule is granted only when the alleged error so substantially affects the rights of the accused that a manifest injustice or miscarriage of justice inexorably results if left uncorrected. State v. Hadley, 815 S.W.2d 422, 423 (Mo. banc 1991).
In State v. Reed, 789 S.W.2d 140 (Mo.App.1990), during voir dire a member of the venire made a remark so allegedly prejudicial that, according to the accused, the entire venire was tainted. There, as here, the accused asked for no relief when the incident occurred, but sought plain error relief on appeal. This Court found no manifest injustice or miscarriage of justice, and affirmed the conviction.
Reed fully discusses the case law applicable in such situations, id. at 141-42, and we need not repeat what appears there. Here, the venire could infer from Ms. Klinkhardt's response that Appellant had been accused of other crimes. However, they could also assume Ms. Klinkhardt was confident enough of Appellant that she was willing to accept the risk of surety on his bond. Furthermore, from Ms. Klinkhardt's comment that she could give both sides a fair trial, the venire could infer she did not assume Appellant was guilty and would base her decision on the evidence.
In Reed, the venireman's remarks indicated he felt the accused was guilty. 789 S.W.2d at 142. No such meaning can be ascribed to Ms. Klinkhardt's comments. Furthermore, nothing she said indicated Appellant had ever been adjudicated guilty of anything. Applying Reed, we find no manifest injustice or miscarriage of justice, and deny Appellant's first point.
We next address point VI, which presents a claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that the prosecutor exercised a peremptory challenge in a racially discriminatory manner by striking the only remaining black venire member from the jury panel. 4
As reported earlier, the prosecutor asked during voir dire whether anyone was acquainted with Appellant. Venireman Albert Allen responded:
I know his father-in-law, his wife, sister-in-law, his brother-in-law; I knew all of 'em, have for the last fifteen years.
Q. You know all his family?
A. Yeah, and his father-in-law. And I saw him pass by the house a couple of times. Far as me knowin' him, I don't know him.
Q. Would the fact that you known his in-laws for fifteen years, do you think it would be difficult for you to be fair in this case?
A. Well, it wouldn't make no difference.
Q. Wouldn't make any difference?
A. No.
Q. You'd be able to sit on this case and give Mr. Crenshaw and the State of Missouri the same kind of trial as if you didn't know any of 'em?
A. Yeah.
After each side made peremptory challenges, § 494.480.2(2), RSMo Cum.Supp.1989, the transcript shows:
Appellant's lawyer objected to the peremptory challenge of Mr. Allen, arguing there were other venire members who had known Appellant's family in some way over a number of years. Pointing out that Mr. Allen had served in a previous case and was the last black member of the venire in the instant case, Appellant's lawyer asserted the prosecutor's explanation did not satisfy Batson.
The trial court ruled:
... I think ... all of the points made by the Prosecutor were points that I can understand the State taking in, in deciding to strike Mr. Allen as a potential juror in this case.... the Court will make the finding [that the Prosecutor's] statements that there were justifiable reasons other than Mr. Allen's race for striking him as a potential juror in this case. I don't believe that the Prosecutor was motivated in stacking an all white jury in this case by striking Mr. Allen.
Appellant's point VI maintains the trial court erred in overruling Appellant's objection to the Prosecutor's peremptory challenge of venireman Allen and in finding the Prosecutor's explanation satisfied Batson. Appellant points out a woman on the venire worked with his mother and knew him by seeing him "coming in and out ... three years or so now." The Prosecutor did not use a peremptory challenge against the woman.
In State v. Pullen, 843 S.W.2d 360 (Mo. banc 1992), the Supreme Court of Missouri held:
In determining whether peremptory challenges have been exercised in a racially discriminatory manner, the prosecutor's explanation is deemed to be race-neutral unless a discriminatory intent is inherent in the explanation. State v. Parker, 836 S.W.2d 930, 934 (Mo. banc 1992). If the prosecutor articulates an acceptable reason for the strike, the defendant is required then to show that the state's proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated. Id. The chief consideration is the plausibility of the prosecutor's explanations in view of the totality of the facts and circumstances surrounding the case. Id. The trial court's determination regarding purposeful discrimination is a finding of fact that will not be overturned on appeal unless clearly erroneous. State v. Hernandez, 500 U.S. 352, ----, 111 S.Ct. 1859, 1872, 114 L.Ed.2d 395 (1991); Parker, 836 S.W.2d at 939 n. 7.
Pullen, 843 S.W.2d at 362-63[1-3].
Here, as we have seen, the trial...
To continue reading
Request your trial
-
State v. Mishler, 19848
...State v. Newlon, 627 S.W.2d 606, 618-619 (Mo. banc 1982), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149; State v. Crenshaw, 852 S.W.2d 181, 187 (Mo.App.S.D.1993). Unlike other cases in which convictions were reversed because of improper closing arguments, the argument in the ins......
-
State v. Vivone
...in this regard despite our usual practice of reviewing only issues raised in an appellant's points relied on. State v. Crenshaw, 852 S.W.2d 181, 185[4] n.4 (Mo.App. 1993). Claims found solely in the argument part of a brief are generally ineligible for review. Id. 9 Defendant also argues fo......
-
State v. Vivone
...in this regard despite our usual practice of reviewing only issues raised in an appellant's points relied on. State v. Crenshaw, 852 S.W.2d 181, 185 n. 4 (Mo.App.1993). Claims found solely in the argument part of a brief are generally ineligible for review. Id.9 Defendant also argues for re......
-
State v. Pagano
...for new trial. In addition to not being presented on appeal, the issue was not preserved for appellate review. State v. Crenshaw, 852 S.W.2d 181, 185 n. 4 (Mo.App.1993). ...