State v. McNeal, s. 60867

• Decision Date: 31 May 1994
• Docket Number: Nos. 60867,64323,s. 60867
• Citation: 880 S.W.2d 325
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Lamorne McNEAL, Defendant/Appellant. Lamorne McNEAL, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
• Court: Missouri Court of Appeals

Page 325

880 S.W.2d 325

STATE of Missouri, Plaintiff/Respondent, v. Lamorne McNEAL, Defendant/Appellant.

Lamorne McNEAL, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.

Nos. 60867, 64323.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 31, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 28, 1994.

Robert E. Steele, Jr., Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jennifer A. Glancy, Asst. Atty. Gen., Jefferson City, for respondent.

CRANE, Presiding Judge.

A jury found Lamorne McNeal guilty of second degree burglary in violation of § 569.170, RSMo 1986. The trial court found him to be a prior and persistent offender and sentenced him to fifteen years imprisonment. McNeal filed a pro se motion for post-conviction relief under Rule 29.15. His appointed attorney timely filed an amended motion. The motion court denied both motions after On his direct appeal McNeal contends that the trial court erred in overruling his Batson ¹ motion without requiring the state to give reasons for its strikes. He also contends the court erred in denying his alternative motions for acquittal and new trial because the state failed to prove beyond a reasonable doubt that he unlawfully entered an inhabitable structure for the purpose of committing the crime of stealing. We deny the latter point but remand the case to the trial court for further proceedings on the Batson motion.

an evidentiary hearing. McNeal appeals both the judgment of the trial court and the order of the motion court.

In his appeal from the order of the motion court, McNeal asserts that the motion court erred in denying his motion for post-conviction relief after an evidentiary hearing. In his motion he claimed he was denied his right to effective assistance of counsel because his attorney failed to move to sever the trial of his case from that of his co-defendant. He also asserts that the motion court erred in denying him relief because the trial court entered an order correcting the judgment without jurisdiction, a claim which was not made in his 29.15 motion. We affirm the order of the motion court.

DIRECT APPEAL

The evidence viewed in the light most favorable to the verdict reveals that on December 4, 1989 at approximately 8:00 p.m., four St. Louis City police officers were in the backyard of a house in the 4100 block of Rosalie conducting surveillance on a house in the 4100 block of Carter when they heard the sound of a window being raised on the rear porch of the Rosalie residence. Two officers approached the house where they heard two persons inside discuss how to get a TV out of the house and plan to climb out the window. The officers then observed McNeal and Hunter exit the window. After the officers identified themselves, McNeal, who was wearing white gloves, fled down the alley. Before apprehending him, two officers observed McNeal throw away some items from his pocket which turned out to be a camera, a TV remote and a cassette tape from the Rosalie residence. At the Rosalie residence the front door glass had been broken, the TV had been placed by the front door, and the house had been ransacked. The owner's stereo and speakers were tied up in a trash bag. Both McNeal and Hunter were charged with burglary in the second degree and were tried together under Rule 24.06(b).

For his first point on direct appeal, McNeal contends that the trial court erred in overruling his Batson motion without considering or requiring the state to provide reasons for its use of eight of its peremptory strikes against African-American venirepersons. We agree.

After the parties had made their peremptory strikes, the court asked if either side had motions before the jury was impaneled. Co-defendant Hunter's counsel moved for a mistrial or to quash the jury panel on the following grounds:

that the prosecutor has exercised his peremptory challenges to strike members of the defendant's race in violation of the equal protection clause and the Sixth Amendment to the United States Constitution. Both defendants in this case are members of a cognizable racial group; they are both Black Americans. The State has used his peremptory challenges, he's used--since there were two defendants in this case he had twelve, he used eight of his twelve strikes on Black venire. There were a total of twelve Blacks on the panel. That left, I believe, four for the defense to consider. And I would also like the Court to note peremptory challenges are a practice that alllows [sic] someone who is of the mind to discriminate to discriminate. I am aware the prosecutor in this case, Mr. Vincent, is also a Black American, but I do believe there is a logical inference in this case he has struck Blacks to discriminate against our clients in this case. I don't feel that the strikes were made in a race neutral manner.

McNeal's counsel joined in this motion and the grounds therefor.

After hearing further argument, the trial court ruled that under State v. Hunter, 802 S.W.2d 201 (Mo.App.1991), the state did not have to give reasons for its peremptory strikes. It found that the deviation of percentage of African-Americans from approximately 38% on the venire to 33 1/3% on the jury was not so great as to require the state to give racially neutral reasons. The court advised that its ruling was also based on the circumstances that the defendants and the alleged victim were African-Americans and two of the four arresting officers were African-Americans. The court denied the Batson motion.

On appeal the state argues that McNeal failed to preserve his Batson challenge because he asked for the panel to be quashed or for a mistrial rather than that the strikes be quashed. As the state points out, this court has declined to review a Batson challenge where a defendant sought to quash the jury rather than particular strikes, on the basis that the proper remedy is to quash the strikes. See State v. Tims, 865 S.W.2d 881, 884 (Mo.App.1993); State v. Sutherland, 859 S.W.2d 801, 803 (Mo.App.1993). However, we believe review is appropriate in this case.

This case was tried in May, 1991. At that time, an appropriate remedy for a Batson violation was to quash the jury. See State v. Hudson, 815 S.W.2d 430, 432 (Mo.App.1991). ² In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the Supreme Court extended Batson to protect minority jurors from discriminatory strikes. In State v. Parker, 836 S.W.2d 930 (Mo. banc 1992), the supreme court held that after Powers,

[q]uashing the panel and commencing the jury selection process anew does not really correct the error. The defendant is simply accorded a new opportunity to obtain a jury composed according to race-neutral criterion; the discrimination endured by the excluded venirepersons goes completely unredressed since they remain wrongfully excluded from jury service.

Id. at 936.

After its decision in Parker, the Missouri Supreme Court reiterated that, "[a]fter Parker, however, the proper objection is to the striking of a particular venireperson or venirepersons." State v. Starks, 834 S.W.2d 197, 198 n. 1 (Mo. banc 1992). Starks involved an appeal from a case which was tried before Parker. On appeal, the state argued to the supreme court that a defendant had not preserved a Batson claim because he had moved for a mistrial rather than "to quash the jury", which was the pre-Parker remedy. The court responded:

Where 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. There could have been no misconception in this case by the trial court of the basis for appellant's objection.

Id. The court reviewed the Batson claim and remanded for a hearing on the state's reasons for its strikes.

The state relies on State v. Grim, 854 S.W.2d 403, 416 (Mo. banc 1993), to support its argument that McNeal is not entitled to review of his Batson claim. In Grim the court again repeated that the proper remedy for the discriminatory use of peremptory strikes is to quash the strikes and permit those members of the venire stricken for discriminatory reasons to sit on the jury if they otherwise would. However, in that case, which was tried before Parker, defense counsel made no Batson motion at all because the defense attorney did not want the entire jury panel quashed. The court held that the defendant's point, complaining that the trial court erred in indicating it would quash the jury if a motion were made, had not been preserved for review because no Batson motion challenging the strikes had been made. The court did not address the situation, as it did in Starks, where a Batson objection had been made, but the wrong relief had been sought.

McNeal's Batson motion sought an appropriate remedy when it was made. In Starks the supreme court considered whether the pre-Parker Batson motion before it was properly preserved under the law prior to Parker. Although it noted that the proper objection after Parker was to the striking of particular venirepersons, the court did not apply that rule to the motion before it. Holding that the issue was preserved, the court reviewed the Batson claim on the merits. In this case, defense counsel made a Batson motion which specifically sought an established pre-Parker remedy and constituted an objection to the jury's being sworn, as required in Starks. Accordingly, we will review McNeal's Batson claim on the merits.

In ruling on McNeal's Batson claim, the trial court denied the motion without requiring the state to give race-neutral explanations for its challenges. In State v. Antwine, 743 S.W.2d 51, 64 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988), the Missouri Supreme Court required Missouri trial courts, when considering Batson challenges, to consider the state...