State v. Neil, 76057

• Decision Date: 25 January 1994
• Docket Number: No. 76057,76057
• Parties: STATE of Missouri, Respondent, v. Siegfried NEIL, Appellant.
• Court: Missouri Supreme Court

Page 734

869 S.W.2d 734

STATE of Missouri, Respondent, v. Siegfried NEIL, Appellant.

No. 76057.

Supreme Court of Missouri en banc.

Jan. 25, 1994.

Rehearing Denied Feb. 22, 1994.

Bradley S. Dede, James J. Knappenberger, William G. Jurgiel, Clayton, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

LIMBAUGH, Judge.

Defendant, Siegfried Neil, appeals from the judgment of convictions, entered pursuant to a jury verdict, on two counts of robbery in the first degree and two counts of armed criminal action. He was sentenced to four terms of imprisonment totaling 28 years. After appeal to the Court of Appeals, Eastern District, this Court granted transfer to readdress the propriety of evidence of uncharged crimes. The judgment is affirmed. ¹

Defendant does not challenge the sufficiency of the evidence. The record shows that defendant was employed at three different Kentucky Fried Chicken restaurants: one at 9800 Natural Bridge in Berkeley, Missouri; one at 219 North Florissant in Ferguson, Missouri; and one at 9633 St. Charles Rock Road in Breckenridge Hills, Missouri. The same person owned all three restaurants.

On July 31, 1988, defendant drove Philip Rodney Brown ("Brown") and Brown's brother to the Ferguson Kentucky Fried Chicken Restaurant. They arrived about 10:30 p.m., soon after the restaurant closed. Defendant parked his vehicle in a nearby church parking lot and waited while the Brown brothers held restaurant employees at gunpoint and took money from the cash registers. After collecting the money, the Brown brothers returned to the vehicle, and the defendant drove them away.

On October 14, 1988, defendant drove Brown to the Berkeley Kentucky Fried Chicken restaurant. Defendant entered the restaurant first and went into the men's restroom. After leaving the restaurant, defendant informed Brown that he could hide in the ceiling of the restroom until the restaurant closed for the evening. Brown then entered the restaurant and hid himself in the restroom, as instructed. Shortly after closing time at 10:00 p.m., Brown came out of the restroom brandishing a gun, forced some employees into a cooler, and forced the manager to give him money. Brown then left the restaurant, and defendant, who was waiting in his car, drove them away.

On October 28, 1988, after rejecting the idea of robbing the Breckenridge Hills restaurant, the Brown brothers again robbed the Kentucky Fried Chicken restaurant in Berkeley. Although defendant helped to plan the second robbery of the Berkeley restaurant and intended to drive the "get-away" car, he became frightened and decided not to participate further.

Berkeley police arrested defendant on February 2, 1989. He was taken to the Berkeley police station and placed in a small interrogation room where he made an audiotaped confession of his involvement in all three robberies. The next day, he was transported to the Ferguson police department, where he made a written confession about his involvement in the robbery of the Ferguson restaurant. That same day, after being released on bond, he apologized to the owner of the restaurants he robbed and promised to make restitution. Defendant's mother, the manager of the Ferguson Kentucky Fried Chicken restaurant, was present when defendant offered this apology. He also apologized to an employee who had been the immediate victim of one of the robberies.

Defendant was charged with the July 31 and October 14 robberies and tried on a theory of accomplice liability, but he was not charged with the October 28 robbery. At trial, defendant denied his involvement in all of the robberies. His defense was alibi, testified to by a girlfriend and by another woman he referred to as his "play mother." In his own testimony defendant claimed his confessions were coerced by the police.

The claim on which this Court accepted transfer from the court of appeals is that the trial court erred in permitting comments by the prosecutor and testimony from State's witnesses concerning the October 28 robbery. Defendant was not charged with that crime, and he cites the general rule that evidence of uncharged crimes is inadmissible to show the defendant's propensity to commit such crimes. The State's initial response, later adopted by the court of appeals, was that defendant's involvement in the October 28 robbery was part of a common plan or scheme of robbing Kentucky Fried Chicken restaurants with the assistance of insider information. As the State correctly points out, an exception to the general rule of inadmissibility is recognized where the evidence of uncharged crimes is offered to prove a common plan or scheme of criminal activity. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993); State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992). However, in Bernard, handed down while this case was pending before the court of appeals, this Court explained that the common scheme or plan exception cannot be invoked where the evidence reveals only that the charged and uncharged crimes are a series of similar crimes. Bernard, 849 S.W.2d at 14. Instead, the evidence must show that the uncharged crime was part of a "larger plan," part of the same "general criminal enterprise" for which defendant is being tried. Id. at 13-14. The State, in its brief and in oral argument on transfer to this Court, properly conceded that the common scheme or plan exception does not apply to this case, and the State acknowledges that the series of robberies culminating in the October 28 robbery is nothing more than a series of similar crimes.

On a different tack, the State now suggests that evidence of the October 28 robbery was properly admitted on the issue of defendant's motive, and, because defendant professed an alibi, on the issue of the defendant's identity. Although motive and identity are two other exceptions to the rule prohibiting evidence of uncharged crimes, we need not address the arguments on their merits because we are convinced that any impropriety in admitting evidence regarding the October 28 robbery was nonprejudicial. Initially, we note that the evidence of defendant's involvement in the October 28 robbery was minimal because defendant withdrew his participation before the offense was committed. The likelihood of prejudice is obviously less in this instance than had defendant followed through with the plan. More important, in view of the confessions, the evidence against defendant on the two robberies for which he was charged was overwhelming. The detail and specificity with which Neil recounted his conduct to the police--information that could only have come from a participant or one who was otherwise closely involved with the crime--tends to corroborate the confessions. Moreover, his apology to the restaurant owner and his promise of restitution, made in his mother's presence, as well as his apology to an additional victim, further corroborate the confessions and refute his claim that the confessions were coerced by the police. At trial, his claim of police coercion was supported solely by his own testimony, and the credibility of his alibi witnesses was substantially diluted by the prosecutor's vigorous cross-examination. Under these circumstances, we hold that the error, if any, in admitting evidence of the uncharged October 28 robbery was harmless error.

In his second point, defendant claims that the State's peremptory challenges used to remove two African-Americans from the venire panel were racially motivated in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). To address a Batson challenge at trial, this Court has set forth the following procedure:

First, the defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable racial group to which the venireperson or persons belong. The trial court will then require the state to come forward with reasonably specific and clear race-neutral explanations for the strike. Assuming the prosecutor is able to articulate 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.

State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992) (citations and footnotes omitted). Defendant complied with the first step of this procedure by making a Batson objection to the State's use of its peremptory challenges to remove two African-American venirepersons.

In reply, the prosecutor stated that he struck the two venirepersons because they both responded affirmatively when asked if they believed that "law enforcement officers treat Black people or young Black males worse than they treat other people." The prosecutor explained that the jurors' opinion on that point was particularly important because the State's case relied primarily on the defendant's confessions to the police. In addition, the prosecutor indicated that one person struck was a minister and, therefore, he may tend to be more lenient and merciful. Furthermore, this person indicated that he had a son who was arrested during a domestic dispute and who, at the time of the arrest, had a weapon in his possession. The other person struck was employed by the St. Louis City juvenile court. The State claimed that this person, accustomed to lenient dispositions in juvenile cases, might not be willing to impose the ten-year sentence the State was seeking against the defendant.

Although defendant claimed that the State's explanation for the strikes was pretextual, the trial court found that the explanations were race neutral and not pretextual. On appeal, the trial court's determination will not be overturned unless clearly erroneous. Id. at n. 7. Based on the record before us, the trial court's finding was not clearly erroneous. Defendant's point is denied.

Defendant...