State v. Davis, WD

• Decision Date: 14 March 1995
• Docket Number: No. WD,WD
• Citation: 894 S.W.2d 703
• Parties: STATE of Missouri, Respondent, v. Darthell E. DAVIS, Appellant. 49308.
• Court: Missouri Court of Appeals

Page 703

894 S.W.2d 703

STATE of Missouri, Respondent, v. Darthell E. DAVIS, Appellant.

No. WD 49308.

Missouri Court of Appeals Western District.

March 14, 1995.

John P. O'Connor, Susan M. Hunt, Kansas City, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before FENNER, C.J., P.J., and LOWENSTEIN and BERREY, JJ.

FENNER, Chief Judge.

Appellant, Darthell Davis ("Davis"), appeals his convictions of murder in the second degree and armed criminal action after trial by jury.

Considered in the light most favorable to the verdict, the record reflects that on the evening of May 14, 1993, a party attended by up to 300 teenagers took place at the home of Jimmy Pryor in Peculiar, Missouri. Though the party was ostensibly a graduation party for Raymore-Peculiar high school students, many of the teens at the party attended other schools.

Geoff and Greg Dill, twin brothers who lived near the Pryors, contacted a number of their friends in Grandview to inform them of the party, including a number of African-American youths. Appellant, an African-American, ended up attending the party with the group that Geoff and Greg Dill had contacted. One of the African-Americans brought a pistol to the party which pistol ended up in appellant's possession. During the party, a fight broke out between two females. A crowd gathered as people moved in to break up the altercation.

As the crowd gathered, Lewis Dunsworth and Dewayne Townsend arrived at the party. Townsend was walking through the crowd when an African-American youth swung his arm and struck Townsend in the chest. Townsend said "excuse me," and, although the incident appeared accidental, the African-American youth responded by turning to Townsend and saying "What the fuck you looking at?" Townsend responded by stating "Do you have something to say to me?" A heated argument ensued. A shot was then fired into the air. The shooter then called Townsend a "mother fucker" and shot him in the face at a distance of only a few inches.

There was conflicting evidence presented as to the identity of the shooter. Several witnesses testified that appellant was the shooter, and the jury found that appellant fired the shot that killed Dewayne Townsend.

Appellant raises three points of alleged trial error on appeal. However, since we find appellant's first point dispositive, it is not necessary to address his other two points. In his first point, appellant argues that the trial court erred in rejecting his Batson challenge to the State's peremptory strikes of the only two prospective African-American jurors, thereby violating the Equal Protection Clause of the United States Constitution.

I. BATSON CHALLENGES

Appellant claims that the trial court erred in overruling his Batson challenge to the State's peremptory strikes of vernirepersons Wallace Singleton and Ernest Carpenter. A review of the record reveals that Singleton and Carpenter were two of the three African-Americans on the jury venire. The third was struck for cause by the State. As a result of the State's peremptory strikes of these individuals, the appellant, an African-American male, was tried and convicted by an all white jury.

A. Missouri Law Implementing Batson

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that a defendant in a state criminal trial could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment, based on the prosecution's use of peremptory challenges to strike members of the defendant's race from the jury venire. Griffith v. Kentucky, 479 U.S. 314, 316, 107 S.Ct. 708, 709-10, 93 L.Ed.2d 649 (1987). A defendant may rely on the fact ... that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Batson, 476 U.S. at 96, 106 S.Ct. at 1723 (citing Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953)); State v. Antwine, 743 S.W.2d 51, 63-64 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988). In applying the Batson holding in Missouri, the Supreme Court announced in State v. Parker, 836 S.W.2d 930, 940 (Mo. banc 1992), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992), that a finding of prima facie discrimination by the trial court is not required for the defendant to support his claim of discrimination. Instead the court adopted a procedure believed superior to that suggested by Batson. ¹

In Missouri courts, once the defendant raises a Batson challenge with regard to one or more specific venirepersons struck by the State and identifies the cognizable racial group to which the venireperson or persons belong, the State is required to offer an explanation for the strike. Parker, 836 S.W.2d at 939. The explanation must be neutral, related to the case to be tried, clear and reasonably specific, and legitimate. State v. Rios, 840 S.W.2d 284, 286 (Mo.App.1992). Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral. Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866-67, 114 L.Ed.2d 395 (1991); State v. Parker, 836 S.W.2d 930, 934 (Mo. banc 1992). Even if the prosecutor's explanation results in the disproportionate removal of minority venirepersons, disparate impact alone will not convert a facially race-neutral explanation into a per se violation of equal protection. Hernandez, 500 U.S. at 362, 111 S.Ct. at 1867-68; Parker, 836 S.W.2d at 934.

There are some limits, however, on what may be considered a "neutral explanation" for the challenged state action of striking a particular venireperson. Though the prosecution is allowed to rely on hunches and past experience in making peremptory strikes as long as race discrimination is not the motive, his or her individual discretion is not unfettered. Batson is not satisfied by "neutral explanations" that are no more than facially legitimate, reasonably specific, and clear. Antwine, 743 S.W.2d at 65. If merely facially neutral explanations were sufficient to satisfy Batson, it would take little effort for prosecutors who are of such a mind to adopt rote "neutral explanations" which bear facial legitimacy but conceal a discriminatory motive. Id. If such "explanations" were allowed, the purpose of Batson would be thwarted, rendering the Supreme Court's pronouncement and continued expansion of the Batson doctrine a charade. Id.

Assuming that the prosecutor is able to articulate a neutral reason for the strike that is more than facially legitimate, the defendant then must show that the state's explanation for the strike is merely pretextual and that the strikes were racially motivated. Parker, 836 S.W.2d at 939; Antwine, 743 S.W.2d at 64. In determining whether the defendant has carried this burden of proof, the trial court must consider a variety of factors. Parker, 836 S.W.2d at 939. Foremost among these factors is the plausibility of the prosecutor's explanations in light of the totality of the facts and circumstances surrounding the case. Id. Facts or circumstances that detract or lend credence to the prosecutor's proffered explanations are relevant. Id. at 939-40. Objective justifications for exercising peremptory strikes are more persuasive than the use of hunches or horse sense by the prosecutor. State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992).

The Parker court also listed several additional factors that should be considered in determining whether the State's justifications are merely pretext, including the existence of similarly situated white jurors who were not struck by the prosecution, ² the degree of logical relevance between the proffered explanation and the case to be tried in terms of the kind of crime charged, the nature of the evidence to be adduced, and the potential punishment if the defendant is convicted, ³ the prosecutor's demeanor or statements during voir dire, ⁴ the demeanor of the excluded venirepersons, ⁵ the court's past experiences with the prosecutor, ⁶ and other objective factors bearing on the state's motive to discriminate on the basis of race, such as the conditions prevailing in the community and the race of the defendant, the victim, and the material witnesses. ⁷ Parker, 836 S.W.2d at 940. The state's failure to use all of its strikes against venirepersons of a racial minority, or the presence of a racial minority on the defendant's jury, are, at most, relevant factors only to the extent that they indicate that race was not the prosecutor's motive for the challenged strikes. Id.

Once each side has made their respective arguments, Batson requires a trial judge to assess the entire milieu of the voir dire objectively and subjectively, focusing all of the information and intuitive perceptions gathered to determine whether the prosecutor exercised peremptory challenges in a discriminatory manner. Antwine, 743 S.W.2d at 65. Because of the extensive role of the trial court and the fact that the findings of fact will turn largely on an evaluation of credibility, a reviewing court must give great deference to those findings. Id. at 66. Findings of fact shall not be set aside unless clearly erroneous. Id. A finding is clearly erroneous when, though there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed based on an evaluation of the entire evidence. Id. (citing Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)).

Before addressing the merits of the case at bar, this court must also address the State's argument that we may not consider certain facts or arguments related to the Batson challenge because the defense did not argue the specific facts directly to the trial court during the Batson hearings. The State seeks to prevent the court from considering that venireperson ...