State v. Nathan, 74085

• Decision Date: 18 May 1999
• Docket Number: No. 74085,74085
• Citation: 992 S.W.2d 908
• Parties: STATE of Missouri, Respondent, v. Ledale NATHAN, Appellant.
• Court: Missouri Court of Appeals

Page 908

992 S.W.2d 908

STATE of Missouri, Respondent, v. Ledale NATHAN, Appellant.

No. 74085.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 18, 1999.

Craig A. Johnston, Office of the Public Defender, Columbia, for Appellant.

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

PAUL J. SIMON, Presiding Judge.

Ledale Nathan (defendant) appeals the judgment entered on the jury's verdict finding him guilty of distribution or delivery of a controlled substance, pursuant to section 195.211 RSMo 1994 (all further references shall be to RSMo 1994 unless otherwise noted). Pursuant to section 195.275, he was sentenced as a persistent drug offender to a term of twenty years' imprisonment.

On appeal, defendant presents two points, one of which contains subpoints that are somewhat confusingly organized, the other of which contains four rather long, verbose full sentences. Although the State has not questioned defendant's compliance with Rule 30.06, we consider whether he has constructed his points relied on in compliance with Rule 30.06(d), which specifies the requirements that all parties must follow when drafting their points relied on. In pertinent part, Rule 30.06(d) provides as follows:

The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous with citations of authorities thereunder....Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule.

A comparison of the form specified in Rule 30.06(d) with the form used by defendant in his brief reveals that he has neither briefly nor concisely constructed his points relied on. Nevertheless, as we stated in Brancato v. Wholesale Tool Co., Inc., 950 S.W.2d 551, 554 (Mo.App. E.D.1997), we may rule on the merits of the appeal when the issues in question are clear and can be found somewhere else in the brief. Therefore, we proceed to consider defendant's points by restating them in a more organized fashion which more closely follows the form required by our Supreme Court.

On appeal, defendant contends that the trial court (1) "plainly and clearly erred" in (A) finding him, during trial, to be a prior drug offender under section 195.285; (B) allowing the State, after his jury trial, to (i) file an information charging him as a persistent drug offender; and (ii) prove him to be a persistent drug offender; (C) sentencing him as a persistent drug offender under section 195.295, and (D) sentencing him to twenty years' imprisonment because doing so violated his right to due process of law under Rule 23.08, sections 195.275, 195.291, 545.300, and 558.021, Article I, section 10 of the Missouri Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution in that (a) section 195.285 applies only to defendants convicted of possession of a controlled substance, not distribution or delivery thereof; (b) the State did not charge him to be or prove him to be a persistent drug offender until after his jury trial; (c) section 195.295 applies only to defendants convicted of second degree drug trafficking; and (d) the trial court earlier had ruled that it would sentence him pursuant to section 558.011.1(2), which provides for a sentence of only five to fifteen years' imprisonment.

Additionally, defendant argues that the trial court (2) "clearly erred" in allowing the State to exercise a peremptory strike against Beckie White and rejecting his Batson challenge because the State exercised its strike on account of White's race, in violation of defendant's and White's right to equal protection under the law pursuant to Article I, section 2 of the Missouri Constitution and the Fourteenth Amendment to the United States Constitution, and the State's only proffered response to defendant's Batson challenge was inadequate in that, under Missouri law, the State's assertion that it had not struck other venirepersons of White's race does not constitute a reasonably specific, clear, and race-neutral explanation for its striking of White. We remand with directions.

Defendant does not contest the sufficiency of the evidence; therefore, our recital of the facts will focus on the procedural facts relating to defendant's two points on appeal. Viewed in a light most favorable to the verdict, the record reveals that during the late afternoon of January 8, 1997, Detective Martise Scott, a member of the Street Corner Apprehension Team (SCAT), was working undercover in Wellston, a city in St. Louis County, Missouri. SCAT had received complaints that drug trafficking was occurring in that area and decided to "attack" the area by attempting to "pick out" individuals who were selling drugs at various locations there. Scott found a "steerer" named James Horskins standing approximately three blocks from 6450 Etzel. A steerer can lead a person to a location where drugs are being sold. Horskins entered Scott's car, claimed he could take Scott to a person who had drugs, and told Scott to drive to 6450 Etzel. Detective Craig Jeffery, listening to Scott by way of hidden microphone, followed in a van. After Scott gave Horskins forty dollars to buy some crack cocaine, Horskins exited the car, approached defendant, and began to talk to him. Scott saw Horskins give defendant the forty dollars and saw defendant hand Horskins a substance appearing to be crack cocaine. Horskins then reentered the car, gave Scott the crack cocaine, and asked to be returned to his original location. Scott drove away and when clear of the scene placed Horskins under arrest. He then returned to the area of the transaction and assisted other officers in apprehending defendant.

Defendant was indicted for sale of a controlled substance near a school, punishable upon conviction under section 558.011.1(1), which mandates a penalty of ten to thirty years' imprisonment or life imprisonment. The indictment specifically referred to section 558.011.1(1) as the applicable statute. Although the indictment specified section 195.218 as the statute defining the crime of sale of a controlled substance near a school, that statute actually describes the crime of distribution of a controlled substance near public housing. Section 195.214 covers the crime of distribution of a controlled substance near a school. Nevertheless, the authorized penalty for both crimes is the same; moreover, the trial court later instructed the jury on the crime of distribution or delivery of a controlled substance, a violation of section 195.211, which is a statute mentioned in sections 195.218 and 195.214.

Later, defendant filed a Motion to Continue Trial Setting in which he stated his "understanding and belief" that he would "be pleaded up by the State as a prior and persistent drug offender." Additionally, he acknowledged that "[a]s a prior and persistent drug offender, [he] face[d] a sentence without the possibility of probation or parole, if convicted." Finally, recognizing the "potential sentence involved if a conviction [would be] obtained on this cause," he stated that he believed that completing his trial preparation was "of the utmost importance."

On the first day of trial, defendant's attorney filed a motion in limine in which he stated, "It is the understanding of undersigned counsel that defendant has prior convictions on criminal charges." Defendant moved to preclude the State from presenting evidence regarding such prior convictions or to limit the State's use of such evidence. The trial court denied his motion.

At the end of voir dire, the trial judge, the prosecutor, and defendant's attorney began a discussion in chambers concerning the State's use of a peremptory strike against venireperson White. In its entirety, that discussion follows:

THE COURT: Let the record show that with respect to [Batson ] that I feel that jurors 2, 8, 9, 22, and 23 are black African American. Also number 15, who was excused because of a doctor's appointment, was black. Let the record show that the State has I think only stricken one black, which is Beckie White number 22; is that correct, [defense counsel]?

[Defense counsel]: Yes, my record indicates the same.

THE COURT: Do you desire any record then with respect to [Batson ]?

[Defense counsel]: I would strictly, just with respect to juror number 22, Beckie White, my notes do not reflect any responses she made. I would note there are at least two other jurors that my notes also reflect there were no responses given to any questions. I have no reason why she was stricken other than that's the basis of my [Batson ] motion basically.

THE COURT: What's the current status of the law[?] It would occur to the Court there is no evidence here of lack of racial neutrality, but on the other hand, it is now with respect to one juror, regardless of the number--

[Prosecutor]: Your Honor, it is my understanding of the law that the defense has the burden to show the strikes were racially motivated. At that point, the burden then shifts to the State to show that those strikes were not racially motivated. That's the State's understanding of the law. At this point, I would contend number one, the defense has not made a showing that the strike was racially motivated; and in that, the State did not strike juror number 2, Ms. Christine Reese, who is African American. Did not strike number 8, Wendolyn Darden, African American, nor juror number 9, Maura McCollum, who is African American. Mr. Robinson is an African American, but was stricken for cause. The Court has already made a record on juror number 22, who is an African American, as is juror number 23.

THE COURT: I am going to find the strike is not racially motivated.

[Defense counsel]: Can I clarify the record[?]

THE COURT: Yes.

[Defense counsel]: Basically my strike is [sic] on Ms....