State v. Frison, s. 53832

CourtCourt of Appeal of Missouri (US)
Citation775 S.W.2d 314
Docket Number55550,Nos. 53832,s. 53832
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Darryl FRISON, Defendant-Appellant. Darryl FRISON, Movant-Defendant, v. STATE of Missouri, Respondent-Respondent.
Decision Date30 June 1989

Janice C. Good, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Christopher M. Kehr, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Judge.

Defendant, Darryl Frison, was convicted by jury on Count I, Illegal Possession of Schedule II controlled substance, cocaine; and, Count II, Illegal Possession of Schedule I controlled substance, marijuana under thirty-five (35) grams. Section 195.020 RSMo 1986. Defendant was sentenced as a prior offender under § 558.016 and § 557.036.4 RSMo 1986 on Count I to five years imprisonment and on Count II to six months imprisonment to be served concurrently.

On direct appeal defendant claims the trial court erred in overruling: (1) his Batson challenge to the state's use of peremptory strikes, and (2) his objections to the state's reference to his prior convictions on cross-examination and in closing argument. In his Rule 29.15 motion defendant claims ineffective assistance of counsel because trial counsel allowed evidence of an outstanding warrant on defendant for possession of marijuana into evidence. We affirm.

On February 23, 1987, defendant drove by Officers Will and Lachenicht of the City of St. Louis Police Department. Officer Lachenicht recognized the defendant as being wanted on a bench warrant for possession of marijuana. Defendant was pulled over and arrested. Officer Will made a pat-down search of defendant and found a plastic bag which contained marijuana and three packets of cocaine.

Defendant's first claim of error on direct appeal is the trial court erred in overruling defendant's Batson motion. On review of a Batson issue, a trial court's finding of no discrimination is a finding of fact, which we will not set aside unless clearly erroneous. State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).

Defendant, a black man, made his Batson motion after the state used its peremptory strikes to remove the four blacks who remained on the venirepanel after six black venirepersons were removed for cause on the state's motion. The court found defendant established a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This ruling shifted the burden of production to the state to rebut a resulting presumption of discrimination. State v. Antwine, 743 S.W.2d at 64 (citing Batson v. Kentucky, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88). Accordingly, the court directed the state to offer neutral explanations for challenging the four black venirepersons.

The state offered the following explanations. Venireperson Payne was peremptorily struck because her son was convicted and served time for auto theft. Venireperson Grant was challenged because her ex-husband served time on a manslaughter conviction. Venireperson Brown was struck for two reasons. First, a brother had been convicted of stealing, and second, Brown did not press charges against an individual who was caught for burglarizing his home. Finally, venireperson Thomas was challenged because Thomas could not remember whether her prior jury service was civil or criminal, or if there had been a verdict. In addition, Thomas indicated displeasure when she stated her automobile was stolen and the police did not respond to her report of the theft.

The trial court found these explanations were sufficient. It refused to allow defendant an opportunity to respond to the neutral reasons given by the state. This was error in light of the subsequent opinion in Antwine, 743 S.W.2d at 64. Defendant now must be allowed an opportunity to demonstrate the state's explanations are pretextual rather than true reasons. Id. Antwine was handed down three months after this trial and Antwine's expansion of Batson is to be applied prospectively only. State v. Griffin, 756 S.W.2d 475, 482 (Mo. banc 1988). Further, in cases tried after Batson but before Antwine, the challenge was made and ruled during the trial. The trial court heard the same voir dire as defendant and was not uninformed on the validity of explanations. Hence, a detailed argument to support a claim of pretext was not absolutely necessary to guide the court.

Defendant claims the court's finding of no discrimination is erroneous because the state did not challenge similarly situated white jurors. Susceptibility, possibility of advantage and evaluation are the three considerations of analysis required of a trial court in determining the validity of a neutral explanation. State v. Jackson, 763 S.W.2d 349, 350 (Mo.App.1988). One criteria for consideration under the evaluation is the state's treatment of similarly situated white venirepersons. Antwine, 743 S.W.2d at 65. However, failure to strike a similarly situated white juror does not mandate reversal, it is only a factor to be considered by the trial court. State v. Rogers, 753 S.W.2d 607, 610 (Mo.App.1988) (citing Antwine, 743 S.W.2d at 65).

Specifically, defendant claims the following white venirepersons who had friends and relatives convicted of crimes were not challenged by the state. Dodson had a friend and Cole had a brother arrested on drug charges. Dohle had a nephew whose daughter was in jail but Dohle was not aware of the surrounding circumstances. Finally, Schuette had a nephew who was caught and accused of property damage. The record indicates, however, these white venirepersons were not similarly situated to Payne and Grant so as to make the state's neutral explanations only facially legitimate. Unlike the challenged black venirepersons, these white venirepersons were remotely related to those who were arrested or convicted of a crime. Furthermore, the crimes involved are of a less serious nature than manslaughter or auto theft. See generally, State v. Tolliver, 750 S.W.2d 624, 628 (Mo.App.1988) (Explanations held to be sufficiently race neutral against the background of the case include: (1) venireman was a relative of a felon; and, (2) venireman had two sons in trouble with the law).

Defendant claims venireperson Dorsey, a white woman, was similarly situated to venireperson Brown, a black man. Defendant correctly points out that Dorsey did not assist the state in the prosecution of her robbery case. We agree that Dorsey is similarly situated to Brown, who failed to press charges against an individual who burglarized his home. We note the state used its peremptory challenges to strike both Dorsey and Brown.

Defendant also believes white venirepersons who were victims of crimes in which no suspects were ever apprehended are similarly situated to Thomas. We do not agree. Thomas had a car stolen. Thomas called the police to report the incident, but the police failed to respond to her call. Thomas is not similarly situated to these venirepersons. This case hinged on the believability of a police officer versus defendant's credibility. Her experience was not only as a victim but one who the police disappointed by failing to respond. The state was justified in striking a venireperson who might be prejudiced against police officers.

Under Batson the state is entitled to rely upon hunches and past experience so long as racial discrimination is not the motive. Antwine, 743 S.W.2d at 65. We conclude the neutral explanations provided by the state were sufficient to rebut any presumption of discrimination and the findings of the trial court are not clearly erroneous. See State v. Antwine, 743 S.W.2d at 66. Point denied.

Defendant's second claim of error is the trial court erred in allowing the state to cross-examine defendant regarding his prior convictions and allowing the state to argue the prior convictions during closing argument in violation of § 491.050 RSMo 1986. Section 491.050 allows the state to use the defendant's prior convictions to impeach his credibility.

On direct examination defendant testified to the nature and number of his prior convictions, and the sentences received therein. Defendant's testimony included statements that he pled guilty on three separate occasions to possession of marijuana. On cross-examination the state asked defendant if he had pled guilty to each of his prior convictions. In closing the state referred to defenda...

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8 cases
  • State v. Martin, s. WD
    • United States
    • Court of Appeal of Missouri (US)
    • 25 Agosto 1992
    ...in good faith. State v. Wade, 826 S.W.2d at 845. Counsel may draw nonevidentiary conclusions from the evidence. State v. Frison, 775 S.W.2d 314, 318-19 (Mo.App.1989). A conviction will be reversed for improper argument only where the argument is "plainly unwarranted," and only then if the s......
  • State v. Oliver, s. 53236
    • United States
    • Court of Appeal of Missouri (US)
    • 9 Mayo 1990
  • State v. Tramble, ED 97507.
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Octubre 2012
    ...only by the restriction that the cross-examiner shall not go into details of the crimes leading to prior convictions. State v. Frison, 775 S.W.2d 314, 318–19 (Mo.App. E.D.1989) ( citing State v. Silcox, 694 S.W.2d 755, 756 (Mo.App. E.D.1985)). The State may inquire into the nature, date, an......
  • State v. Zamora, WD
    • United States
    • Court of Appeal of Missouri (US)
    • 26 Marzo 1991
    ...and this court will not interfere with the trial court's determination unless an abuse of that discretion is shown. State v. Frison, 775 S.W.2d 314, 318 (Mo.App.1989). In the instant case no such abuse of discretion Where an objection has been made and is sustained as to evidence that a par......
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