State v. Kempker
| Decision Date | 25 February 1992 |
| Docket Number | No. 74009,74009 |
| Citation | 824 S.W.2d 909 |
| Parties | STATE of Missouri, Respondent, v. Michael KEMPKER, Appellant. |
| Court | Missouri Supreme Court |
Stephen J. Harris, Columbia, for appellant.
William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.
The defendant was convicted of two counts of passing bad checks in violation of § 570.120, RSMo 1986. The Court of Appeals, Western District, reversed and remanded for new trial concluding that the state had failed to counter the defendant's properly raised claims of violation of the doctrine of Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), in the exclusion of African-American jurors. We granted transfer because of the importance of issues touching Powers and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We conclude that the trial court committed no error and affirm.
Of the 24 jurors from which the final selections were made, three were African-American. The state removed two of these jurors by exercise of its peremptory challenges; the third served on the jury. After the peremptory challenges were announced, the defendant properly objected to the state's striking of the African-American jurors. In so doing the defendant correctly anticipated the Powers ruling, in that the defendant was not African-American, and it had been previously assumed that Batson applied only when the defendant and the excluded jurors were of the same race. The trial judge took the commendable precaution of holding a Batson-type hearing in response to the challenge. The state went forward with justification for its strikes, and so we do not have to struggle with the question of what constitutes a prima facie case. See Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); State v. Antwine, 743 S.W.2d 51 (Mo. banc 1987).
The state struck jurors Raye and Rostic, who were both African-American. The prosecutor indicated three characteristics he considered undesirable for jurors in the case: youth, a history of writing insufficient funds checks, and lack of business experience. Raye was the youngest person in the array and had written insufficient funds checks. Rostic was the fifth youngest, had written bad checks, and lacked business experience. Salmons, an African-American juror whom the state did not strike, ranged between Raye and Rostic in age and had written insufficient funds checks, but this took place several years earlier when she was in college. Three Caucasian jurors had written insufficient funds checks but one of these, who was slightly older than Rostic, was engaged in business, and the other two were substantially older. Two Caucasian jurors who were younger than Rostic were not struck, but neither had written insufficient funds checks.
The trial judge found that the history of insufficient funds checks demonstrated a racially neutral reason for the strikes and concluded that no general purpose of excluding African-American jurors had been demonstrated. He observed that one African-American juror remained even though the defendant had four remaining strikes after excusing Raye and Rostic. The defendant, to succeed, must demonstrate that this finding is clearly erroneous. We are not persuaded that he has done so.
The factors the prosecutor indicated are objective and racially neutral. The defendant asserts that a finding of discrimination is compelled because other jurors who had written insufficient funds checks were not removed, and two jurors who were younger than Rostic were not struck. It is suggested that the reasons given were necessarily pretextual because they were not applied uniformly to all members of the panel. But the struck African-American jurors possessed two of the characteristics the prosecutor sought to avoid, and no remaining juror had both of these. The record amply supports the trial judge's conclusion.
We express a word of caution. Batson and Powers present substantial problems for prosecutors in...
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