State v. Johnson

• Decision Date: 13 March 2007
• Docket Number: No. ED 87550.,ED 87550.
• Citation: 220 S.W.3d 377
• Parties: STATE of Missouri, Respondent, v. Marlow J. JOHNSON, Appellant.
• Court: Missouri Court of Appeals

220 S.W.3d 377

STATE of Missouri, Respondent, v. Marlow J. JOHNSON, Appellant.

No. ED 87550.

Missouri Court of Appeals, Eastern District, Division Two.

March 13, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 12, 2007.

Application for Transfer Denied May 29, 2007.

Jessica Hathaway, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Assistant Attorney General, Jefferson City, MO, for Respondent.

GARY M. GAERTNER, SR., Judge.

Appellant, Marlow J. Johnson ("Defendant"), appeals from the judgment of the Circuit Court of the City of St. Louis, following a jury trial, finding him guilty of three counts of assault of a law enforcement officer in the first degree, section 565.081, RSMo 2000,¹ three counts of armed criminal action, section 571.015, and one count of tampering in the first degree, section 569.080. Defendant was sentenced as a persistent offender to six concurrent terms of twenty-five years' imprisonment for the assault and armed criminal action convictions and one concurrent term of five years' imprisonment for the tampering conviction. We affirm in part and reverse and remand in part.

On August 26, 2004, at approximately 1:00 a.m., two City of St. Louis police officers, Officer Paul Piatchek ("Officer Piatchek") and Officer Wilson, observed a Chevy Silverado truck ("truck"), which they believed to have been stolen. Officer Piatchek ran the license plate and learned that it had been stolen. They alerted other officers of their location and situation.

Officers Piatchek and Wilson, who were in plain clothes and an unmarked vehicle, pulled behind the truck and followed it into the McDonald's drive-thru at Natural Bridge Road and North Kingshighway. Officer Eric Bartlett ("Officer Bartlett") and Officer Tom Zipf, Jr. ("Officer Zipf") then pulled into the parking lot. Officer Zipf, who was also in plain clothes, approached the truck from the rear and placed spike strips under the tires so when the vehicle advanced it would run over the spike strips and deflate the tires.

The truck pulled forward and to the right over the spike strips. The truck drove around the McDonald's with its tires spinning and eventually spun around 180 degrees. As it did this, Officer Piatchek was able to observe the driver of the truck, whom he subsequently identified as Defendant. Officer Zipf chased the vehicle yelling, "stop, police!" The passenger of the truck, James King ("King") leaned out of the window, pointed a semiautomatic handgun, and began firing at Officer Zipf. Officer Zipf drew his weapon and returned fire. Officer Bartlett also began firing on the truck.

Detective Dave Bonnenburger ("Detective Bonnenburger") and Detective Dan Drago ("Detective Drago") then arrived in an unmarked vehicle and pulled between the truck and Officer Zipf, allowing Officer Zipf to enter their vehicle. Defendant drove toward the exit and King ducked down in the truck. Meanwhile, two other officers who had arrived on the scene had placed a second set of spike strips down, which Defendant drove over.

Defendant exited the parking lot and was driving on Natural Bridge Road when the truck spun out again. Numerous officers approached the truck and Officer Bartlett yelled, "police!" They ordered Defendant and King to exit the truck and Detective Drago, with his gun drawn, yelled, "police . . . let me see your hands." Defendant put his hands out the window and, as Detective Drago approached, King popped up in the truck and began firing at him. Detective Drago returned fire and Defendant pulled his hands back into the truck, placed them on the steering wheel, and drove forward toward Officer Bartlett. During this time, King was still shooting out the window and Officer Bartlett was returning fire.

Defendant then drove the truck toward a business driveway while King continued to shoot, this time toward Officer Piatchek, who was firing back. Defendant drove the truck into a lot, through a fence, and over an embankment. Officers followed. The occupants of the truck, Defendant, King, and another individual, exited the truck and fled on foot. Officer Zipf and Detective Bonnenburger arrested Defendant on a front lawn, as he attempted to hide. Defendant suffered gunshot wounds to the back and shoulder and officers later learned that King had been also shot. Officers retrieved a .45 caliber semiautomatic handgun, covered with King's blood, and several nine millimeter, and .45 caliber shell casings, bullets, and copper jackets.

The trial court conducted a jury trial and the jury convicted Defendant. The trial court then entered judgment against Defendant, for three counts of assault of a law enforcement officer in the first degree, section 565.081, RSMo, three counts of armed criminal action, section 571.015, and one count of tampering in the first degree, section 569.080. The trial court sentenced Defendant as a persistent offender to six concurrent terms of twenty-five years' imprisonment for the assault and armed criminal action convictions and one concurrent term of five years' imprisonment for the tampering conviction. Defendant filed a motion for a judgment of acquittal or in the alternative a new trial, which the trial court denied. This appeal by Defendant followed.

In his first point on appeal, Defendant alleges that the trial court erred in denying his Batson challenge to one of the State's peremptory strikes because the prosecutor's reasons for the strike were discriminatory.

The United States Supreme Court held that a defendant makes a prima facie case of discriminatory jury selection by looking at "the totality of the relevant facts" of the prosecutor's behavior during trial. Batson v. Kentucky, 476 U.S. 79, 93-94, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Missouri Supreme Court set forth a three-part procedure to determine whether a Batson violation occurred. State v. Parker, 836 S.W.2d 930, 939 (Mo.banc 1992). First, a defendant must challenge one or more specific veniremen struck by the State and identify the cognizable protected class to which they belong; second, the State must provide a nondiscriminatory reason amounting to more than an unsubstantiated denial of discriminatory purpose; and third, the defendant must show that the State's explanation was merely pretextual and the true reason for the strike was racial. Id.

In order for a defendant to prove that the proffered explanation by the State was pretextual, the defendant can present comparisons of veniremen allegedly struck for racially discriminatory reasons with veniremen who served on the jury. State v. McFadden, 191 S.W.3d 648, 651 (Mo.banc 2006). A defendant proves purposeful discrimination when the proffered reason for striking a venireman applies to a similarly situated venireman who served on the jury. Id. The trial court must consider "the plausibility of the prosecutor's explanations in light of the totality of the facts and circumstances surrounding the case." Id. The trial court's findings will be set aside only if they are clearly erroneous. Id. A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made. Id.

In the instant case, the State peremptorily struck five African-American veniremen on the panel. The racial composition of the panel is unclear from the record, but the State alleges in its brief that after strikes for cause there were 28 veniremen remaining and more than half were African-American. (The racial composition of the seated jury is also unclear from the record.)

One of the African-Americans struck by the State was venireman Belinda Lockhart ("Lockhart"). Defendant made a Batson challenge to the State's use of that strike. When the trial court asked the prosecutor why he struck Lockhart, he responded:

Prosecutor: . . . Miss Lockhart had a situation where she believed police bungled her car burglary. And she was very flippant about, well, a number of answers. But I believe that she had some negative impressions of the police based upon her response to that question and the manner when she responded. I think she said a family—is it a family member arrested for the car burglary[?]

Court: Well, there have been a number of—I think my notes indicate a number of car burglaries, but why would that be of concern to you?

Prosecutor: I thought that perhaps my notes indicated, in reading it, Your Honor, looks like they were victims. Sometimes I mistake [sic] when I write down the crimes that they were participants.

Court: What was the record here? Now what are you trying to show the record? I don't understand.

Prosecutor: The first part of my response, Your Honor, which was that she indicated that the police had bungled—I think that's the term that she used—a matter, a criminal matter that she was involved in. And she was rather flippant about it. Makes me think that she still holds somewhat of a negative impression about the police.

Court: I will allow the strike. It's race and gender neutral.

Defense Counsel: I would like to object, Judge. It's not what she said. She said someone stole something from her. She got it back and it was a family member, so she didn't prosecute. She doesn't mention anything about the police bungling it.

Court: Now I do recall that. That's right. That's right.

Prosecutor: She said she had to do the work instead of the police. And that she was very negative about the police.

Court: Yes. I understand. I understand. I recall the whole scenario now. All right. I'll allow the strike. All right.

We note that the prosecutor gave two reasons for striking Lockhart: her statement that the police "bungled" a car burglary investigation and her perceived "flippant" attitude revealed in many of her answers. Defendant objected to the prosecutor's first reason, but not the second. Defendant never objected to or contradicted the prosecutor's statement that Lockhart was flippant, and it was...