State v. McFadden

• Decision Date: 16 May 2006
• Docket Number: No. SC 86857.,SC 86857.
• Citation: 191 S.W.3d 648
• Parties: STATE of Missouri, Respondent, v. Vincent McFADDEN, Appellant.
• Court: Missouri Supreme Court

Page 648

191 S.W.3d 648

STATE of Missouri, Respondent, v. Vincent McFADDEN, Appellant.

No. SC 86857.

Supreme Court of Missouri, En Banc.

May 16, 2006.

Rehearing Denied June 13, 2006.

COPYRIGHT MATERIAL OMITTED

Rosemary E. Percival, Office of Public Defender, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for Respondent.

RONNIE L. WHITE, Judge.

I.

A jury convicted Vincent McFadden (McFadden) of first-degree murder and armed criminal action. McFadden was given the death penalty consistent with the jury's recommendation. This Court has jurisdiction pursuant to Mo. Const. art. V, sec. 3. Among his nine points of error, McFadden raises a valid Batson challenge. The judgment is reversed and the case is remanded.

II.

The facts, which this Court reviews in the light most favorable to the verdict,¹ indicate that on July 3, 2002, McFadden and Michael Douglas encountered Todd Franklin. An altercation ensued, during which Douglas and McFadden each shot Franklin who died at the scene. McFadden was charged with the first-degree murder and armed criminal action.

At trial, the State exercised five of its nine peremptory challenges to remove African-American venirepersons, leaving only one African-American to serve on the jury. The defense counsel challenged the strikes under Batson v. Kentucky.² After the State offered explanations, defense counsel argued that these reasons were merely pretextural. The trial court denied McFadden's Batson claim. The jury found McFadden guilty of both charges. During the penalty phase, the jury found five statutory aggravators and recommended a sentence of death. On April 22, 2005, the court sentenced McFadden to death and to a term of life imprisonment. This appeal followed.

III.

McFadden's Batson challenge is dispositive. It has been long recognized that racial discrimination in jury selection violates the Equal Protection Clause.³ In Batson v. Kentucky, the United States Supreme Court held that a defendant could make out a prima facie case of discriminatory jury selection by "the totality of the relevant facts" of the prosecutor's behavior during the defendant's trial.⁴

In State v. Parker, this Court set forth the procedure to be followed when a defendant makes a Batson challenge.⁵ First, a defendant must challenge one or more specific venirepersons struck by the State and identify the cognizable racial group to which they belong.⁶ Second, the State must provide a race-neutral reason that is more than an unsubstantiated denial of discriminatory purpose.⁷ Third, the defense must show that the State's explanation was pretextual and the true reason for the strike was racial.⁸

To show pretext, the defense can present "side-by-side comparisons" of venirepersons allegedly struck for racially discriminatory reasons with those who were allowed to serve.⁹ Evidence of purposeful discrimination is established when the stated reason for striking an African-American venireperson applies to an otherwise-similar member of another race who is permitted to serve.¹⁰ In evaluating a Batson challenge, the trial court's "chief consideration should be the plausibility of the prosecutor's explanations in light of the totality of the facts and circumstances surrounding the case."¹¹

The trial court's findings with regard to a Batson challenge will be set aside if they are clearly erroneous.¹² A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been made.¹³ In light of the totality of the following facts and circumstances, this Court is left with the definite and firm conviction that the trial court was mistaken in this case:

Venireperson C.W.

It appears that African-American venireperson C.W. would have been a strong juror for the State. Her father had been shot to death and she had a working relationship with law enforcement. Despite these facts, the State claims it struck C.W. for two reasons: (1) her telephone rang and (2) it would have been difficult for her to be absent from work.

First, the State contends it struck C.W. because her telephone rang. The prosecutor claimed that C.W. did not take the process seriously because she was fiddling with her telephone and distracting other members of the panel. Defense counsel countered that it appeared C.W. was fumbling because she was having difficulty turning her telephone off, but eventually succeeded.

It does not appear that there was a white juror who had trouble with her telephone, but such an identical comparison is not necessary. "A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters."¹⁴

Even though the State made no record of C.W.'s telephone ringing at the time and failed to ask the court to instruct venirepersons to turn off their telephones, the State was apparently so bothered that it used the strike on C.W. and allowed white venireperson J.B. to remain on the jury. During voir dire, J.B. repeatedly stated that he would want the State to prove guilt beyond any possible doubt before he could impose a death sentence. The State unsuccessfully moved to strike J.B. for cause, arguing that it "was quite clear he would require a higher burden for guilt before he would consider the death penalty." Yet, rather than striking a white venireperson who required a higher burden of proof, the State struck an African-American because her telephone rang.

Second, the State asserts that it struck C.W. because it would have been difficult for her to be absent from work. During voir dire, C.W. stated:

I'm a manager for a cleaning company and in our group there is three area managers. One is out of town — I mean one is sick, brain concussion and the other one has his own area, and I don't know if my boss will allow me to be out because I have to handle all buildings in the evening. Make sure all the cleaners are at work on time and any problems that come up.

The State failed to strike white juror S.R. who also expressed that she would have difficulty taking time away from work. S.R. worked for a company that was about to undergo an audit. She was "one of the key people" and her employer had written a letter for her to give to the court explaining the extent of the hardship. She worked in the "back office" and needed "to account for all the transition. The cash coming in and out and stuff." A lot of work was needed to prepare for the audit.

Not only was S.R.'s statement of hardship more definite than C.W.'s claim, but S.R. had an additional reason to be struck. S.R. expressed a familiarity with the scene of the murder. The State indicated that there had been extensive construction in the area since the time of the murder and had concerns that jurors familiar with the scene would not rely exclusively on witness' accounts of the scene as it existed at the time of the murder. This familiarity with the area of the crime served as the rationale for striking African-American venirepersons C.N., M.B., V.G., and W.S. Yet, in addition to S.R., there were four additional white jurors with familiarity with the area of the crime who were not struck.¹⁵

Venireperson C.N.

The State contends African-American venireperson C.N. was struck for four reasons: (1) she was an employee of the St. Louis City School District and would likely be liberal, (2) she lived in a high crime area but never heard gunshots, (3) jury service would create a hardship, and (4) she was familiar with the area of the crime. Each of these reasons either equally applied to white jurors who were not struck by the State or had no relevance to the case.

First, the prosecutor claimed he struck C.N. because she was an employee of the St. Louis School District. However, in State v. Edwards, this Court rejected the notion that a juror's employment as a postal worker was sufficient reason to justify a peremptory strike.¹⁶ This Court held that, "[i]f the mere incantation of the phrase `he is a postal worker' were sufficient to overcome any showing of pretext, the third step of the Batson test would be illusory."¹⁷ In that case, the following guidance was offered:

In the future, trial courts should similarly consider strikes based on occupation carefully, assessing them for pretext by looking at whether the occupation and the claimed traits relate to the particular case or juror, whether similarly situated jurors are treated differently, and so forth, considering the factors set out above, and not allow a strike to rest solely on the claim that the juror is "a postal worker."¹⁸

The Court held that the trial court had not clearly erred in allowing the strike, because the prosecutor described his prior negative experiences with postal workers as jurors, gave specific reasons why they would not be good jurors, and struck two other jurors who had similar occupations to the challenged postal worker.¹⁹

Here, the prosecutor failed to explain the basis for his opinion, or describe what his prior experiences entailed, or give specific reasons for why an employee of the St. Louis school system would be unfavorable for the State. Without more, C.N.'s employment with the school district is pretextual.

Second, the prosecutor argued that he struck C.N. because she lived in a high crime area and had never heard gunshots. This appears to be loosely related to the case because witnesses living in high crime areas would be testifying that they heard a gunshot. However, C.N.'s recognition of a gunshot is irrelevant. Not only was the witnesses' recognition of a gunshot was not in dispute, but even if it were in dispute, it is unclear why a juror's lack of experience in hearing a gunshot is relevant. Additionally, had this issue been relevant, the State would have asked all venirepersons if they could recognize the sound of a gunshot. "[T...