State v. Prowell, s. 58977

• Decision Date: 28 July 1992
• Docket Number: Nos. 58977,60581,s. 58977
• Citation: 834 S.W.2d 852
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Daniel PROWELL, Defendant-Appellant. Daniel PROWELL, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 852

834 S.W.2d 852

STATE of Missouri, Plaintiff-Respondent, v. Daniel PROWELL, Defendant-Appellant.

Daniel PROWELL, Appellant, v. STATE of Missouri, Respondent.

Nos. 58977, 60581.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 28, 1992.

Melinda Kay Pendergraph, Columbia, Emily Blood, St. Louis, for appellant.

William L. Webster, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.

PUDLOWSKI, Presiding Judge.

A jury convicted defendant, Daniel Prowell, of distribution of a controlled substance near a school, § 195.214 RSMo Cum.Supp.1989, possession of a controlled substance, § 195.202 RSMo Cum.Supp.1989, and unlawful use of a weapon, § 571.030.1 RSMo 1986. The trial court sentenced defendant as a persistent and prior offender to fifteen years for the distribution conviction, five years for the possession conviction to be served concurrently with the distribution sentence and five years for the weapons conviction to be served consecutively with the first two sentences. Defendant filed a Rule 29.15 motion for post conviction relief which the motion court denied after an evidentiary hearing. Defendant appeals his convictions and the denial of his Rule 29.15 motion. We affirm.

Defendant does not challenge the sufficiency of the evidence and we view the evidence in the light most favorable to the verdict. On November 17, 1989, Detective Gertrude Towns was assigned to the Street Corner Apprehension Team (SCAT) of the St. Louis Police Department. Towns approached a man working on a car in the 1400 block of Lasalle in St. Louis and asked him if he had any drugs. The man said no but then immediately walked over to a nearby apartment building and spoke to the defendant. The man returned to Towns and stated "okay go ahead he'll (referring to defendant) take care of you." Towns then approached the defendant and purchased twenty dollars worth of crack cocaine. Towns, using a hidden transmitter, then gave defendant's description and location to other SCAT officers.

Detective Robert Ehrhard, a SCAT officer, apprehended the defendant. Ehrhard searched the defendant and found nine pieces of crack cocaine, a loaded pistol under defendant's sweatshirt and the twenty dollar bill Towns used to buy the drugs. A third SCAT officer, Detective Robert Klier, measured the distance between the apartment and Holy Guardian Angels (Grade) School and found the distance to be approximately 260 feet.

A City of St. Louis grand jury indicted defendant for the three offenses. After a three day trial, the jury returned guilty verdicts. Defendant filed a Rule 29.15 motion for post conviction relief and, after an evidentiary hearing, the motion court denied the motion. This consolidated appeal followed.

On direct appeal, defendant argues the trial court erred: (1) in overruling defendant's challenges to § 195.214 RSMo Cum.Supp.1989 because the statute is unconstitutional; and (2) in denying defendant's motion to quash the jury panel pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Defendant argues § 195.214 is void on its face and as applied because the statute is unconstitutionally vague and ambiguous. We must first consider whether this court has jurisdiction to decide the constitutional challenge. If a case involves the constitutional validity of a state statute, the court of appeals does not have jurisdiction of the appeal. Mo. Const. art. V, § 3. "The mere assertion of a constitutional issue, however, does not deprive the court of appeals of jurisdiction unless the constitutional issue is real and substantial, and not merely colorable." State v. Clark, 756 S.W.2d 565, 569 (Mo.App.1988) (citing State v. Charity, 637 S.W.2d 319, 321 (Mo.App.1982)). Because we find defendant's constitutional claim merely colorable and not substantial this court has jurisdiction.

Section 195.214 RSMo Cum.Supp.1989 provides:

1. A person commits the offense of distribution of a controlled substance near schools if he violates section 195.211 by unlawfully distributing or delivering any controlled substance to a person in or on or within one thousand feet of the real property comprising a public or private elementary or secondary school, public vocational school, or a public or private junior college, college or university.

2. Distribution of a controlled substance near schools is a class A felony.

Defendant argues the words "school" and "within one thousand feet" fail to provide a person of ordinary intelligence with adequate notice of the proscribed conduct. A valid statute must provide a person of ordinary intelligence a reasonable opportunity to learn what is prohibited. State v. Mahurin, 799 S.W.2d 840, 842 (Mo. banc 1990). In his brief, defendant asks a series of rhetorical questions such as "What constitutes a school?" and "Does the statute apply to pre-schools or technical schools?" Defendant also challenges the statute because it does not specify how to measure whether the incident occurred "within one thousand feet of a school."

When determining whether terms are unconstitutionally vague, "neither absolute certainty nor impossible standards of specificity are required...." State v. Duggar, 806 S.W.2d 407, 408 (Mo. banc 1991) (citation omitted). The statute provides that a school is "a public or private elementary or secondary school, public vocational school, or a public or private junior college, college or university." The statute prohibits distribution of a controlled substance "to a person ... within one thousand feet of the real property comprising a ... school...." "If the terms or words used in the statute are of common usage and are understandable by persons of ordinary intelligence, they satisfy the constitutional requirements as to definiteness and certainty." Mahurin, 799 S.W.2d at 842 (quoting State v. Brown, 660 S.W.2d 694, 697 (Mo. banc 1983)). The words "school" and "within one thousand feet" have a plain and ordinary meaning and are understandable by persons of ordinary intelligence.

Defendant also contends the statute is overbroad. Overbroadness is a concept appropriate in first amendment cases. Mahurin, 799 S.W.2d at 842; State v. Madsen, 772 S.W.2d 656, 659 (Mo. banc 1989). Defendant does not contend nor do we find any first amendment issue implicated in defendant's argument. Defendant's first point is denied.

In his second point, defendant argues the trial court erred in denying his motion to quash the jury panel pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The parties stipulated that the defendant is a member of the black race. The qualified venire panel consisted of thirteen blacks and eleven whites. Clay Grumke, the prosecutor, used four of the state's six peremptory strikes to remove blacks from the jury panel. The petit jury consisted of eight blacks and four whites. Defendant subsequently made his motion to quash the jury pursuant to Batson. The trial court then asked Grumke to give reasons for the peremptory strikes of the four black venirepersons.

Mr. Grumke: Judge, I struc[k] Juror 329, Mr. Shackelford, he was a young man who stated that he had grown up in the area where the sale took place and had problems with the police officers harassing him in the area as he was growing up. That's the reason that I struck him.

Juror 414, Gary Glasby is the person who told us that he has a close friend who he made bail for on a pending criminal charge out in St. Louis County, so his involvement with a pending case in the Criminal Justice System caused to me strike him.

Juror No. 18, Michael Roberts, he's the one that had a nephew who committed an armed robbery in the City of St. Louis, and was sentenced to prison on that case. Because of his involvement in the Criminal Justice System, I struck him.

Vivian Harris, Juror No. 570, she's the juror who told us her brother had had problems with the police; that they had been very rowdy with him, that it was uncalled for. She also made the statement you can never get a police officer when you need one. Based on those reasons, I struck these people.

The trial court then found the prosecutor's reasons race neutral and denied defendant's motion. After Grumke stated his reasons, defendant never argued the reasons were pretextual.

To establish a prima facie case of discriminatory use of peremptory challenges, a defendant must demonstrate: (1) defendant is a member of a cognizable racial group; (2) that the prosecutor used peremptory challenges to remove prospective jurors of defendant's race; and (3) that "these facts and other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Batson, 476 U.S. at 96, 106 S.Ct. at 1723; State v. Antwine, 743 S.W.2d 51, 64 (Mo. banc 1987).

By establishing a prima facie case, the defendant creates a rebuttable presumption that the prosecutor has exercised his challenges in a discriminatory manner. Antwine, 743 S.W.2d at 64. The burden of production then shifts to the state to come forward with racially neutral reasons for its strikes. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Antwine, 743 S.W.2d at 64. These reasons "must give a 'clear and reasonably specific' explanation of the state's 'legitimate reason' for exercising the challenges." Batson, 476 U.S. at 98, 106 S.Ct. at 1724 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981)). If the state presents race neutral reasons, the presumption raised by the prima facie case is rebutted. Burdine, 450 U.S. at 255, 101 S.Ct. at 1094-95. Defendant then has "the obligation to demonstrate that the State's explanations are merely pretextual and, thus, not the true reason for the use of the State's peremptory challenges." Antwine, 743 S.W.2d at 64 (emphasis added).

Defendant contends the state's reasons for striking...