State v. Davis, s. WD

• Decision Date: 24 December 1996
• Docket Number: Nos. WD,s. WD
• Citation: 936 S.W.2d 838
• Parties: STATE of Missouri, Respondent, v. Vinson DAVIS, Appellant. 51166, WD 52264.
• Court: Missouri Court of Appeals

Page 838

936 S.W.2d 838

STATE of Missouri, Respondent, v. Vinson DAVIS, Appellant.

Nos. WD 51166, WD 52264.

Missouri Court of Appeals,

Western District.

Dec. 24, 1996.

Jarrett Aiken Johnson, Asst. Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Christine M. Blegen, Asst. Atty. Gen., Jefferson City, for respondent.

SPINDEN, Judge.

A jury found Vinson Davis guilty of first degree robbery and armed criminal action. On appeal, he charges the circuit court with five errors: (1) overruling his Batson ¹ objection; (2) failing to declare a mistrial; (3) overruling his motion for judgment of acquittal; (4) overruling his motion for new trial; and (5) denying his Rule 29.15 motion for post-conviction relief. We affirm.

The jury convicted Davis of robbing Gerald Haas on June 5, 1994, while he was alone in a friend's Kansas City apartment. Davis was one of three men Haas let into the apartment when they told him they were there to retrieve a radio. The other two men were Anthony Boone and Antonio Slater. Boone told Haas that he was taking a "boom box" because it belonged to him. Slater told Haas that they would also take the television. When Haas resisted, Slater said that he would take anything he wanted and left with the television and two unopened packages of cigarettes sitting on it. Slater returned to the apartment with a rifle and ordered Haas to take everything out of his pockets. He asked Haas for money and then hit Haas in the back of the head with the rifle. Haas fell to the floor. Davis kicked Haas in the face and knocked out a tooth. Davis told Haas to remove his pants, and Haas did. Davis took a wallet, some change and a knife from the pants' pockets. Davis told Slater to shoot Haas, and Slater aimed the rifle at Haas. Haas jumped up and leaped through a closed window. Breaking through the glass, Haas landed on the sidewalk below, fracturing a leg and an arm. Haas limped to Belmont Street before collapsing and crawling to the sidewalk. He screamed for help. Slater, carrying the rifle, approached Haas. A neighbor telephoned 911. Slater saw the neighbor watching the incident and fired the rifle into the air.

Police later apprehended Davis and Slater in the area and returned them to the scene where several persons identified them. Officers found a shell casing in the area from a rifle of the style used by Slater.

After a jury convicted Davis and the circuit court sentenced him as a prior offender to 10 years in prison on the robbery count and three years on the armed criminal action, to run consecutively, Davis filed a Rule 29.15 motion for post-conviction relief accusing his trial attorney of ineffective assistance. The circuit court denied his motion without an evidentiary hearing. Davis appeals his convictions and the denial of his Rule 29.15 motion for post-conviction relief. We have consolidated the appeals.

In his first point, Davis contends that the circuit court erred in overruling his objection to the state's dismissing a black venire person. Davis claims that he made a prima facie showing of racial discrimination and that the state's reasons for dismissing the venire person were pretextual.

To make a sufficient Batson objection, a defendant must make a prima facie showing that he is a member of a cognizable race and that the state used its peremptory challenges to remove others of his or her race from the venire panel. State v. Parker, 836 S.W.2d 930, 933 (Mo. banc), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992). If the defendant makes such a showing, the state must give race-neutral reasons for its peremptory strike. If the prosecutor offers a sufficient explanation, the circuit court should deem the defendant's prima facie case to be rebutted, and the defendant must show that the prosecutor's explanation was merely pretextual to hide a racial motivation. Id. The circuit court has much discretion in determining whether a defendant has made such a showing. State v. McGuire, 892 S.W.2d 381, 384 (Mo.App.1995). We use a "clearly erroneous standard" to judge the circuit court's determination. State v. Griffin, 756 S.W.2d 475, 482 (Mo. banc 1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3175, 104 L.Ed.2d 1036 (1989).

When Davis objected to the state's using a peremptory strike to dismiss a black venire person, the prosecutor explained her motive:

His uncle was incarcerated and prosecuted by Jackson County. He's young and single. We struck everyone who's young, in their twenties and single. Also, [two others] fall into that category and we struck them as well. And the last reason, is because he was slouching in this chair most of the time. I could barely see him.

Defense counsel said that he regarded the first reason as pretextual because two other venire members who had indicated that they had relatives in jail were not dismissed. He added, "As far as the body language, I can't comment on that. Unfortunately, I was seated with my back toward that juror, so I don't know if that is pretextual or not." The prosecutor responded that she struck only one of the three venire members who had relatives in jail because the other two did not indicate that the Jackson County prosecutor had prosecuted the cases against their relatives. The prosecutor also said that the other venire members who had relatives in jail had said that they did not believe their relatives were falsely convicted, whereas the struck juror said that he had no opinion on that issue.

The circuit court found that the prosecutor's explanation for dismissing the venire person was racially neutral and upheld the peremptory strike. The circuit court noted that although other venire panelists had relatives in jail, the prosecutor had provided additional reasons for striking the one. ²

We affirm the circuit court's determination. Davis failed to meet his burden of showing that the state's explanation was pretextual. His only argument at the Batson hearing was that other venire members had relatives in jail and were not dismissed. As the prosecutor explained, the dismissed member was the only one who indicated that his uncle had been prosecuted by Jackson County; moreover, the prosecutor gave additional reasons--the venire member's age, marital status, and demeanor. The prosecutor also pointed out that two similarly-situated white venire members had been dismissed.

Age, demeanor and marital status are proper factors for the state to consider in using its peremptory challenges. State v. Blunk, 860 S.W.2d 819, 821 (Mo.App.1993). Defense counsel did not rebut these reasons. We find no basis for finding the circuit court's determination to be clearly erroneous; therefore, we deny the point.

In his second point, Davis complains that the circuit court did not declare, sua sponte, a mistrial after the prosecutor referred to police reports during closing argument which Davis claims were not in evidence. The prosecutor said:

Jerry Haas was consistent from the start. He made the statement at the scene, and his statement at the scene, basically they're concerned with identification. [The police] are trying to catch these guys. [The police] found out where [the perpetrators] were going, the police are trying to get a description of the robbers, a description of the car, and that's what they're concerned with, and he makes that consistent description right from the start. There were three of them is what he says. He didn't say there were two guys and one came up briefly to get a cigarette.

He makes another police statement in the emergency room. This is not a written statement, as he testified. It's not a chance where he got to go over all the words and sign it. They talked to him in the emergency room, just enough to find out what had happened. And the only inconsistency that the defense could bring out from that was, didn't Slater say he was going to kill you. "So, well, maybe he said he was going to kill me. I don't remember that. I remember this defendant saying, 'bust a cap on him.' " That was the only inconsistency. There were no inconsistencies in the reporting of this and if they were there, they would have brought them out.

Unfortunately, the police reports are hearsay and you won't be able to get an opportunity to see them or read them. But Mr. Haas testified from the witness stand and everything was consistent with all the police reports.

Davis claims these remarks prejudiced the jury and violated his right to a fair trial and due process rights and that the circuit court should have declared a mistrial because the remarks bolstered the victim's credibility.

Davis did not object at trial; therefore, he did not preserve the issue for our review. He requests, however, our review of the issue as plain error under Rule 30.20.

The Supreme Court has instructed that "court[s] should rarely grant relief on assertions of plain error as to closing argument[.] This is because, in the absence of objection and request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention." State v. Clemmons, 753 S.W.2d 901, 907-08 (Mo. banc), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). Moreover, errors committed during closing argument do not justify plain error relief unless they had a decisive effect on the jury. State v. Clifford, 815 S.W.2d 3, 8 (Mo.App.1991).

We do not discern plain error here....