State v. Link

• Decision Date: 30 March 1998
• Docket Number: 21368,Nos. 19661,s. 19661
• Citation: 965 S.W.2d 906
• Parties: STATE of Missouri, Respondent, v. Martin C. LINK, Appellant. Martin C. LINK, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 906

965 S.W.2d 906

STATE of Missouri, Respondent, v. Martin C. LINK, Appellant.

Martin C. LINK, Appellant, v. STATE of Missouri, Respondent.

Nos. 19661, 21368.

Missouri Court of Appeals,

Southern District,

Division One.

March 30, 1998.

M. Elise Branyan, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel W. Follett, Asst. Atty. Gen., Jefferson City, for respondent.

GARRISON, Presiding Judge.

Martin C. Link (Appellant) was convicted by a jury of aggravated forcible rape, § 566.030, RSMo Supp.1990, first degree burglary, § 569.160, ¹ two counts of armed criminal action, § 571.015, and first degree robbery, § 569.020.1(2). The trial court sentenced him, as a dangerous offender, to life imprisonment on each of the rape and robbery convictions, and thirty years on the burglary conviction. It also sentenced him to thirty years on each of the two armed criminal action convictions. It ordered that the sentences be served consecutively. Appellant appeals those convictions in Case No. 19661.

Appellant also filed a pro se motion for post-conviction relief pursuant to Rule 29.15 which was later amended by appointed counsel. Those motions were denied after an evidentiary hearing. Appellant appeals that denial in Case No. 21368. These appeals were duly consolidated for purposes of appeal but will be discussed separately in this opinion.

The sufficiency of the evidence to support the conviction is not in dispute. We view the evidence and all reasonable inferences therefrom in the light most favorable to the verdicts. State v. Crews, 923 S.W.2d 477, 478 (Mo.App. S.D.1996). The facts, viewed in that light, indicate that on January 25, 1991, D.H. and her two-month-old child were alone at her parents' home when a man, whom she later identified as Appellant knocked on the door and asked for directions to a person's home. When she told Appellant she did not know, he asked if anyone else was there who might know. When D.H. answered in the negative, Appellant produced a knife and forced his way into the house. Appellant told D.H. to remove her clothes and to give him her money. After she did both, he took her to a bedroom and had sexual intercourse with her while holding the knife in his hand. He then placed his penis in her mouth, and later placed it in her vagina a second time. Appellant, who was still holding the knife, then held a pillow over D.H.'s face, until he heard something outside the house which caused him to let her up. He then cut the phone lines and left the house. D.H. dressed and went to her aunt's house to report what had happened. She was then taken to the police department and later to a doctor's office, where she was examined.

Appellant was arrested five days later after trying to elude an officer in St. Louis. D.H. identified Appellant in a line-up and at trial. At trial, she identified a photo of the car he was driving when arrested as the same car he drove from her parents' home. She also testified that a knife found in the car was the same knife he held when he assaulted her.

CASE NO. 19661

In his first point in his direct appeal, Appellant contends that the trial court erred in denying his challenge to the state's use of its peremptory jury strikes to remove venirepersons because "the prosecutors exercised all of their peremptory challenges to exclude male venirepersons and their explanations that four of the male jurors which were struck did not sufficiently complete the juror questionnaire was not gender neutral."

Appellant correctly points out that in Batson v. Kentucky, 476 U.S. 79, 86-87, 106 S.Ct. 1712, 1717-1718, 90 L.Ed.2d 69, 80-81 (1986), the United States Supreme Court held that racially motivated peremptory strikes to remove venirepersons violate the equal protection rights of both the defendant and the stricken venirepersons. That same principle has now been extended to protect against discriminatory strikes based solely on gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 114 S.Ct. 1419, 1421, 128 L.Ed.2d 89, 97 (1994). "[T]he substance and procedures established by the Batson line of cases are equally applicable to challenges made to peremptory strikes based on gender bias." State v. Hayden, 878 S.W.2d 883, 885 (Mo.App. E.D.1994).

The Supreme Court of Missouri has adopted a three-part test in analyzing race, and now gender-based claims of discrimination in the jury selection process. State v. Parker, 836 S.W.2d 930, 939 (Mo.banc 1992), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992). First, the defendant must raise a challenge with regard to one or more specific venirepersons struck by the state and identify the racial or gender group to which that person belongs. Id. The trial court then requires the state to come forward with "reasonably specific and clear race-neutral explanations for the strike." Id. Assuming that the prosecutor articulates an acceptable reason for the strike, "the defendant will then need to show that the state's proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated." Id.

In the instant case, Appellant, citing Batson, requested a mistrial after all of the State's peremptory strikes were directed at male jurors. A mistrial is not the appropriate remedy. State v. Hudson, 815 S.W.2d 430, 432 (Mo.App. E.D.1991). The proper objection is directed to the striking of a particular venireperson or persons prior to the venire's dismissal. Parker, 836 S.W.2d at 936. Nevertheless, the Missouri Supreme Court has said that "[w]here the defense attorney clearly intends to assert a Batson challenge and the court fully understands that the objection is to the jury's being sworn, the form of the motion is not fatal to appellate review." State v. Starks, 834 S.W.2d 197, 198 n. 1 (Mo.banc 1992). Here Appellant's attorney made a Batson challenge and the trial court clearly understood that the challenge was to the jury being sworn. Therefore, the nature of the challenge is not fatal to appellate review here.

In responding to the Batson-type challenge to the State's exercise of its peremptory strikes, the prosecutor explained the peremptory strikes as follows: Venireperson No. 5 was stricken because he had both a hearing problem and back trouble; Venirepersons No. 8 and No. 9 were stricken not only because the prosecutors did not feel they had enough information on them from the jury questionnaires, but also because they had not actively participated in the voir dire process in that they hesitated in raising their hands in response to questions; Venireperson No. 21 did not fully complete the juror questionnaire, and seemed to be timid and did not project himself well when answering questions; Venireperson No. 36 did not complete the jury questionnaire, and also indicated that his hearing was only fair and that his eyesight was poor; and Venireperson No. 35 was stricken because he indicated that he had "fair" health, and it came down to a choice between him and another female venireperson who spoke out more and articulated her thoughts well. The prosecutor also explained that the State made its strike from the list of alternates for no particular reason, that the venireperson stricken was the first one on the list, and any of the alternates would have been acceptable to them. The trial court found that, based on the State's explanations, there was no gender bias, and denied the request for a mistrial.

Appellant now argues that the State's explanations for the strikes were merely pretexts for discriminating against the excluded venirepersons based on their gender. He did not, however, raise that issue at trial, but instead allowed the selection of the jury to continue without further comment on the subject. Appellant was required to show that the State's proffered reasons for the strikes were merely pretextual and that the strikes were gender-motivated. See Parker, 836 S.W.2d at 939. Because he failed to do so, he has not preserved the matter for our review. See State v. Pullen, 843 S.W.2d 360, 365 (Mo.banc 1992), cert. denied, 510 U.S. 871, 114 S.Ct. 200, 126 L.Ed.2d 158 (1993). Likewise, Appellant failed to raise this issue in his motion for new trial. Accordingly, he requests that we review for plain error.

It is not clear that a plain error review of such claims is appropriate. See State v. Sutherland, 939 S.W.2d 373, 379-80 n. 1 (Mo.banc 1997), cert. denied, --- U.S. ----, 118 S.Ct. 186, 139 L.Ed.2d 125 (1997). Even assuming that plain error would be appropriate, we find none here. The State gave gender neutral explanations for its peremptory strikes. What a prosecutor observes about potential jurors in voir dire, as well as what is said, may form a legitimate nondiscriminatory basis for exercising a peremptory strike. State v. Weaver, 912 S.W.2d 499, 509 (Mo.banc 1995), cert. denied, --- U.S. ----, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996). This may include reluctance or hesitation in answering questions, as well as "lack of strength." Id. Certainly, health factors such as hearing and eyesight problems, can be valid, nondiscriminatory considerations in making peremptory strikes. Assuming a plain error review were appropriate here, we find none. Appellant's first point is denied.

In his second point, Appellant argues that the judgment should be reversed because the trial court did not, sua sponte, declare a mistrial when the prosecutor "vouched for the credibility of her witnesses" during closing argument. Appellant refers to comments made by the prosecutor during closing such as, "the State has produced the best in witnesses;" the prosecutor "felt very comfortable with the testimony" of the State's witnesses; and that D.H. was a "very credible young lady." He admits, however, that his attorney neither objected to the argument nor raised the matter in his motion for new trial. He therefore requests that we review the point for plain error.

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