State v. Dunn, s. 60805
| Decision Date | 25 October 1994 |
| Docket Number | 64621,Nos. 60805,s. 60805 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Christopher DUNN, Defendant/Appellant. Christopher DUNN, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent. |
| Court | Missouri Court of Appeals |
Craig A. Johnston, Office of the State Public Defender, Columbia, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Traci J. Sanders, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Christopher Dunn guilty of first degree murder, in violation of § 565.020.1 RSMo 1986, two counts of first degree assault, in violation of § 565.050 RSMo 1986, and three counts of armed criminal action, in violation of § 571.015 RSMo 1986. The trial court found him to be a prior and persistent offender and sentenced him to life imprisonment without parole on the first degree murder count, thirty years imprisonment on each of the assault counts, and ten years on each of the armed criminal action counts, all sentences to be served consecutively.
Dunn filed a pro se motion for post-conviction relief under Rule 29.15. His appointed attorney filed a statement that she had investigated "all allegations raised by movant in addition to those in movant's pro se motion" and concluded there were no additional grounds to be raised in an amended motion. The motion court denied the pro se motion after an evidentiary hearing. Dunn appeals On his direct appeal Dunn contends that the trial court erred in overruling his Batson 1 motion without requiring the state to give reasons for its strikes. He also contends the court erred in overruling his objection to the state's comments in voir dire and plainly erred in not declaring a mistrial sua sponte with respect to the state's comments in closing argument. He further challenges the reasonable doubt instruction and grand and petit jury panel selection. We remand the case to the trial court for further proceedings on the Batson motion and deny the remaining points.
both the judgment of the trial court and the order of the motion court.
In his appeal from the order of the motion court, Dunn asserts that the motion court erred in failing to inquire sua sponte into counsel's reasons for not filing an amended motion, in failing to make factual findings and legal conclusions on all issues raised in his pro se motion, and in adopting the state's proposed findings verbatim. Dunn also contends the motion court erred in denying his motion for post-conviction relief after an evidentiary hearing because he was denied his right to effective assistance of counsel in that his attorney failed to investigate and call certain alibi witnesses. We affirm the order of the motion court.
The sufficiency of the evidence is not in dispute. The evidence, viewed in the light most favorable to the verdict, reveals that shortly after midnight on May 19, 1990, Dunn ran by a house in the 5600 block of Labadie in the City of St. Louis and shot a firearm at three fifteen year old boys who were on the front porch. The shots hit one of the boys who was taken to the hospital where he died from a gunshot wound at 2:21 a.m. the same day. The other two victims knew Dunn and identified him.
For his first point on direct appeal, Dunn contends that the trial court erred in overruling his Batson motion without considering or requiring the state to provide reasons for its use of a peremptory strike against an African-American venireperson. We agree.
After the parties had made their peremptory strikes, defense counsel asked the court to strike the jury panel and informed the court that she was making a motion under State v. Antwine 2 and Batson because the state had struck an African-American male from the jury panel. Dunn's counsel advised the court that Antwine required the state to give reasons for the strikes before the court could rule. After hearing further argument, the trial court ruled that the state did not have to give reasons for its strike because one strike out of six did not disturb the numerical composition of the jury. The court also noted that the defendant, the three victims, and one of the investigating officers was African-American. The court denied the Batson motion.
The state asserts that Dunn failed to preserve his Batson challenge because he asked the court to quash the panel whereas he should have asked the court to disallow the offending strike. We have recently reviewed and rejected a similar contention in State v. McNeal, 880 S.W.2d 325 (Mo.App.1994).
The defendant in McNeal was tried in May, 1991. At that time, an appropriate remedy for a Batson violation was to quash the jury. Id. at 328. However, as noted in McNeal, after the Missouri Supreme Court's decision in State v. Parker, 836 S.W.2d 930, 936 (Mo. banc), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992), "the proper objection is to the striking of a particular venireperson or venirepersons." McNeal, 880 S.W.2d at 328 (). We held that McNeal's pre-Parker motion sought an appropriate remedy when it was made and we reviewed McNeal's Batson claim on the merits. Id. at 329.
This case was tried in July, 1991, which was also before Parker was decided. As in McNeal defense counsel made a Batson motion which specifically sought an established pre-Parker remedy and constituted an objection to the jury's being sworn. Dunn has thus preserved his Batson claim for review.
In ruling on Dunn's Batson claim, the trial court denied the motion without requiring the state to give race-neutral explanations for its challenges. In Antwine the Missouri Supreme Court required Missouri trial courts, when considering Batson challenges, to consider the state's explanations in determining whether a prima facie case had been made. As we set out in McNeal, the procedure required by Antwine engendered confusion because it attempted to consolidate the three-step Batson inquiry into one contemporaneous proceeding, resulting in appellate decisions which appeared to abandon Antwine in favor of a three-step Batson analysis. McNeal, 880 S.W.2d at 329.
However, in Parker, the Missouri Supreme Court readopted the Antwine procedure and specifically directed the trial court to take the following actions when confronted with a timely Batson motion:
1. The defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable racial group to which the venireperson or persons belong.
2. The trial court will then require the state to come forward with reasonably specific and clear race-neutral explanations for the strike.
3. If acceptable reasons are articulated, the defendant has the burden to show that the proffered reasons were pretextual and the strikes were racially motivated.
See Parker, 836 S.W.2d at 939. Parker held that Batson's prima facie showing requirement is not constitutionally required and that Missouri trial courts should no longer make such a finding. Id. at 940. Instead, when a party properly raises a Batson challenge, the trial courts must conduct an evidentiary hearing to determine whether a prosecutor's strike was racially motivated. Id. The court remanded that case to the trial court for a Batson hearing. Id. at 940-41.
We conclude that under Parker this case must be remanded for an evidentiary hearing on the Batson motion to determine whether the prosecutor used his strike in a discriminatory manner. The hearing should follow the three steps outlined in Parker. In considering whether purposeful discrimination has occurred, the trial court should take into account the relevant factors set out in Parker. Id. at 939-40. The trial court shall certify to this court a record of its proceeding and its finding. The direct appeal is remanded for a hearing consistent with the holding of this opinion.
For his second point Dunn asserts the trial court abused its discretion in overruling his objection to the state's comments during voir dire concerning reasonable doubt. On appeal he attacks the comments for many reasons. At trial he objected on the ground that the comments constituted an improper statement of law. We are limited on review to the ground on which he based his objection. State v. Dampier, 862 S.W.2d 366, 376 (Mo.App.1993).
Dunn objected to the following statements made during voir dire:
[Prosecutor]: But in this criminal case as in every criminal case, the state represented by myself, has the burden of proof. I have the burden of presenting evidence to you. Everybody understand that? Any problem with that? And the burden I must meet is proof beyond a reasonable doubt. And that burden goes to the elements of the crime.
At this point defense counsel objected and the court overruled the objection. The prosecutor continued:
[Prosecutor]: Again, in any crime there are specific elements or acts which must be proved before you can find the defendant guilty. There may be one act, two acts, three acts, four acts; just depends on the crime. And the Judge will instruct you in connection with what those elements are at the conclusion of the case. But that is what my burden goes to, beyond a reasonable doubt. Not all doubt or any doubt, but a reasonable doubt. Does anybody have any problem with that?
The trial court is given broad control over the nature and extent of voir dire questioning; we do not interfere unless the record shows a manifest abuse of that discretion. State v. Roe, 845 S.W.2d 601, 605 (Mo.App.1992). While counsel may not define reasonable doubt for the jury, the state may discuss the concept with the jury. Roe, 845 S.W.2d at 604. We use a three part test to...
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