State v. Hudson, s. 58389

• Decision Date: 10 December 1991
• Docket Number: Nos. 58389,59630,s. 58389
• Citation: 822 S.W.2d 477
• Parties: STATE of Missouri, Respondent, v. John HUDSON, Appellant. John HUDSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 477

822 S.W.2d 477

STATE of Missouri, Respondent, v. John HUDSON, Appellant.

John HUDSON, Appellant, v. STATE of Missouri, Respondent.

Nos. 58389, 59630.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 10, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 10, 1992.

Application to Transfer Denied Feb. 25, 1992.

J. Gregory Mermelstein, Columbia, for appellant.

William L. Webster, Atty. Gen., Geoffrey W. Preckshot, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

This case is a consolidated appeal of defendant's four convictions of robbery in the first degree, § 569.020 RSMo 1986, and from the denial of his Rule 29.15 motion for post conviction relief. The court sentenced defendant to serve ten years imprisonment for each conviction. Three convictions run concurrently with each other and consecutive to the first.

Defendant relies on six points of error. The first challenges the sufficiency of the state's evidence. The second raises a Batson claim. The third alleges the state impermissibly shifted the burden of proof to defendant during closing argument. The fourth claims the court committed plain error by allowing the state to present evidence of drug use by defendant and his companion. The fifth claims the court committed plain error in giving an instruction patterned after MAI-CR3d 302.04, defining reasonable doubt. The last alleges, and the state concedes, the court erred in determining defendant's amended Rule 29.15 motion was untimely. Defendant also argues his trial counsel was ineffective for failing to strike two veniremen who knew state's witness Sergeant Adams. We affirm.

When reviewing defendant's challenge to the sufficiency of the evidence to sustain his convictions, we view the evidence and all reasonable inferences therefrom in the light most favorable to the state and disregard all contrary evidence. State v. Livingston, 801 S.W.2d 344, 345 (Mo. banc 1990). When determining whether there was substantial evidence to support the jury's verdict, we do not weigh the evidence and substitute our judgment in place of the jury's. Id. Applying these standards we find the following evidence.

On June 26, 1989, defendant's mother gave Brian Ward $150 with instructions to recover a television and VCR. Defendant and Ward pawned the items earlier for drug money. Instead of redeeming the pawn tickets, Ward bought more drugs with the money. Both defendant and Ward consumed the drugs.

On June 27, 1989, defendant and Ward were searching for a means of replacing the spent money. While walking in the area of Delmar and Old Bonhomme in University City, they decided to look for someone to rob. At approximately 9:54 p.m., they entered the Aish Hatorah Center. Defendant led the way carrying a B.B. gun. Four women were inside sitting at a table in a bible study session. Defendant placed the gun against the back of the neck of one of the women and demanded all their purses. The women froze. The men grabbed the purses and fled towards Kaufman Park. One of the women called the police.

Meanwhile, an off-duty police officer, Sergeant Adams, was on his way to work. While stopped at the intersection of Blackberry and Gay, he saw a man running. Seconds later he saw a second man running and carrying two or three large brown handbags. Sergeant Adams recognized defendant as the second man. He drove to a pay phone and discovered a robbery had occurred. Adams told the dispatcher he saw two black males running towards Kaufman Park on Blackberry and one of the men was John Hudson.

Shortly thereafter, the men were apprehended. Defendant's pockets contained change totalling $4.33 and two pawn tickets. He was not wearing shoes. The police conducted a street line-up. Two of the women identified both men. Rabbi Grunberger also identified the men as two men he saw walking in front of the Aish Hatorah Center minutes before the robbery. The police followed the path the men took from the center to where they were ultimately apprehended and found the four purses. The shoes and gun were never found. The police obtained Ward's fingerprint from a credit card. Ward entered guilty pleas to four charges, two armed robberies and two armed criminal actions. Ward testified for the state after pleading but before sentencing.

I

Defendant contends the evidence upon which he was convicted is insufficient to support the convictions. Defendant argues: (a) the testimony of the four women did not prove his participation in the robbery because their description and identification of the robbers was irreconcilably conflicting; (b) Ward's testimony was self- serving, incredible and conflicted with the women's testimony; and (c) there is no other substantial evidence in the record proving defendant's guilt beyond a reasonable doubt.

The evidence to prove defendant's guilt includes the following direct and circumstantial evidence. Two of the women identified defendant as one of the robbers both at a street line-up and at trial. Ward also identified defendant as the other robber. Defendant's presence outside the Aish Hatorah Center minutes before the robbery and his presence six blocks from the robbery approximately six minutes after it occurred while carrying handbags and running behind another man was strong circumstantial evidence of guilt.

The testimony of the witnesses conflicted in several respects. The witnesses did not agree whether defendant wore a red or blue shirt, was taller than Ward, spoke during the robbery, or how many purses defendant grabbed. The conflicting and inconsistent statements made by the witnesses reflected on their memory and the quality of their evidence, not sufficiency. The weight and credibility to be given to their testimony was a proper issue for the jury to determine. State v. Giffin, 640 S.W.2d 128, 131 (Mo.1982). The witnesses all agree defendant was one of the robbers and he wielded the gun. A submissible case was presented to the jury. See State v. Murphy, 753 S.W.2d 90, 91 (Mo.App.1988).

II

Defendant alleges the court erred in ruling on defendant's claim the state used peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), "IN THAT THE STATE'S EXPLANATION FOR THE STRIKES--THAT THE VENIREPERSONS WERE POSTAL WORKERS--WAS MERELY A PRETEXT FOR DISCRIMINATION AND WAS NOT A LEGITIMATE RACE-NEUTRAL REASON FOR THE STRIKES."

Before the court swore in the jury panel defendant made a Batson objection. Defense counsel stated defendant was black and the state used three of its six peremptory challenges to strike black venirepersons McCloud, Morris and Watson. Defendant did not challenge the state's right to strike Watson. The court noted six of twenty-four persons on the venire panel were black. The court then ruled defendant did not make a prima facie case of discrimination because the state only struck three out of six blacks.

In order to preserve a record for review and despite having found no prima facie case, the court allowed the state to provide neutral explanations for its challenges to McCloud and Morris. The prosecutor stated he struck McCloud because of his occupation as a postal worker and his demeanor in responding to questions. The prosecutor said members of the postal service are "too liberal in their leanings, and also much too tolerant of activities that could be considered criminal...." The prosecutor based this observation on his professional experience and the fact members of his family were members of the postal service. The prosecutor struck Morris, a postal worker for the same reason. The court found these explanations were sufficient and ruled there was no systematic exclusion of blacks from the panel. This ruling is the foundation upon which defendant's point on appeal rests.

Defendant argues the state had no rational basis, without individually questioning McCloud or Morris, to conclude they would be liberal in their leanings or tolerant of activities which could be considered criminal. During voir dire McCloud responded to a general question and Morris did not speak. Defendant relies upon State v. Smith, 791 S.W.2d 744 (Mo.App.1990). In Smith, we held defendant's Batson challenges were untimely. Id. at 748. In dicta, a divided panel of this court found the state's explanation for striking government workers was unacceptable where "the only explanation the prosecutor gave for striking governmental employees was because he had had bad experiences and results with them." Id. at 749.

We find Smith is not controlling and the court did not err in this case by accepting the state's neutral explanations as legitimate. We recognize occupation related explanations are susceptible to abuse as the court in Smith found. Here in contrast to Smith, the prosecutor engaged in a detailed explanation of why he believed postal workers would be poor jurors for the state. The prosecutor believed, based upon his personal dealings with postal workers including family members, a liberal attitude "was instilled" in postal workers. The experience based rationale involved more than mere rejection based on employment. We defer to the trial court's assessment of the credibility of the prosecutor and his explanation. State v. Payton, 747 S.W.2d 290, 293 (Mo.App.1988).

Additionally, defendant did not respond to the neutral reasons given by the state to support a finding of pretext or argue the reasons were only facially neutral. Once the state came forward with neutral explanations, defendant had the obligation to demonstrate the state's proffered explanations were pretextual. State v. Antwine, 743 S.W.2d 51, 64 (Mo. banc 1987). Defendant had the opportunity to respond but failed to do so. The ultimate burden of persuasion of showing a systematic pattern of excluding qualified black veniremen lies with and never shifts from the defendant. Id. at 63. Point denied.

III

Def...