State v. Rashad

• Court: Missouri Court of Appeals
• Writing for the Court: KURT S. ODENWALD, Judge
• Citation: State v. Rashad, 484 S.W.3d 849 (Mo. App. 2016)
• Decision Date: 22 March 2016
• Docket Number: No. ED 102361,ED 102361
• Parties: State of Missouri, Respondent, v. Selous R. Rashad, Appellant.

484 S.W.3d 849

State of Missouri, Respondent,

v.Selous R. Rashad, Appellant.

No. ED 102361

Missouri Court of Appeals, Eastern District, DIVISION FOUR .

FILED: March 22, 2016

Kevin L. Schriener, 141 N. Meramec Ave., Suite 314, Clayton, MO 63105, for appellant.

Chris Koster, Daniel N. McPherson, P.O. Box 899, Jefferson City, MO 65102, for respondent.

KURT S. ODENWALD, Judge

Introduction

Appellant Selous Rashad ("Rashad") appeals from the judgment entered by the Circuit Court of the City of St. Louis following a jury trial. The jury convicted Rashad of two counts of first-degree attempted forcible sodomy, in violation of Section 566.060;¹ two counts of first-degree attempted statutory sodomy, in violation of Section 566.062; and one count of first-degree child molestation, in violation of Section 566.067. Rashad was sentenced to life in prison without parole as a prior and persistent offender and a persistent sexual offender. Rashad now contends on appeal that the trial court clearly erred in overruling his Batson challenges.² Because the trial court did not clearly err in denying Rashad's Batson challenges in light of the totality of the facts and circumstances surrounding this case, we affirm the judgment of the trial court.

Factual and Procedural History

Rashad was indicted as a prior and persistent offender and persistent sexual offender on two counts of first-degree attempted forcible sodomy, in violation of Section 566.060; two counts of first-degree attempted statutory sodomy, in violation of Section 566.062; and one count of first-degree child molestation, in violation of Section 566.067, resulting from an incident on April 27, 2013.³ Rashad's jury trial commenced on October 20, 2014. During voir dire, Rashad raised Batson challenges alleging racial bias to the State's peremptory strikes of venirepersons Jackson, Feathers on, and Harris. Venirepersons Jackson, Featherson, and Harris were African–American, like Rashad, the victim, and all but one of the witnesses.

With regard to the first Batson challenge, the State struck venireperson Jackson, who attended school for business analysis and worked as a business analyst for United Healthcare. The State explained that it exercised its peremptory strike because it disfavored "jurors who do highly-technical work such as financial or technical analysis." Defense counsel argued that the State's explanation for its peremptory strike was pretextual because Jones, a white venireperson who was not struck, was similarly situated as an investigator for financial crimes at Wells Fargo. The State responded that it considered investigative work to be "different than being an analyst." The trial court found that the State's explanation was sufficient, and ruled the State's peremptory strike of Jackson was race-neutral.

With regard to the remaining two Batson challenges, the State exercised its peremptory challenge against venirepersons Featherson and Harris. The State explained that Featherson and Harris were struck because they had a record of felony arrests. Defense counsel noted that venireperson Wisner was a similarly situated white male who was not challenged by the State. Wisner, like Featherson and Harris, had a prior felony arrest. In response to defense counsel's Batson challenge, the State acknowledged that Wisner was similary situated to Featherson and Harris. The State explained its failure to strike venireperson Wisner as an oversight as it informed the trial court, "I quite honestly didn't notice Mr. Wisner's prior [arrest]. I mean, I see my note here, but I did not notice it. That's my only explanation." The trial court found that the explanation provided by the State was not pretextual, reasoning:

Well, again, I think in the realm of peremptory strikes, based on my history with both attorneys before me, I've never found either one to engage in racial animosity on strikes or presentation of a case, so on that basis in the field of a peremptory strike, I'm going to allow it.

Rashad was found guilty of two counts of first-degree attempted forcible sodomy, two counts of first-degree attempted statutory sodomy, and one count first-degree child molestation. Having found Rashad a prior and persistent offender and a persistent sexual offender, the trial court sentenced Rashad to four terms of life imprisonment without the possibility of parole on the attempted forcible- and statutory-sodomy counts. The trial court also sentenced Rashad to thirty years' imprisonment for first-degree child molestation.

Rashad filed his timely Notice of Appeal. This appeal follows.

Points on Appeal

Rashad presents three points on appeal, each of which is centered on Rashad's Batson challenges. Rashad first alleges that the trial court clearly erred in overruling his Batson challenge of venireperson Jackson. Specifically, Rashad contends that his equal-protection rights were violated because the State failed to strike a white juror who also did "highly-technical work." In his second and third points on appeal, Rashad claims that the trial court clearly erred in denying his Batson challenges to the State's peremptory strikes of venirepersons Featherson and Harris, who were struck for having prior felony arrests. Specifically, Rashad contends that the strikes of Featherson and Harris were pretextual because the State did not strike venireperson Wisner, a similarly situated white venireperson with a prior felony arrest.

Standard of Review

In reviewing a trial court's findings relating to a Batson challenge, the trial court "is accorded great deference because its findings of fact largely depend on its evaluation of credibility and demeanor." Kesler–Ferguson v. Hy–Vee, Inc., 271 S.W.3d 556, 558 (Mo. banc 2008). The trial court's ruling on a Batson challenge is only overruled if its decision is clearly erroneous. State v. McFadden, 369 S.W.3d 727, 739 (Mo. banc 2012)("McFadden III "). A decision is clearly erroneous if we are left with a "definite and firm conviction that a mistake has been made." State v. McFadden, 216 S.W.3d 673, 675 (Mo. banc 2007)("McFadden II ").

Discussion

Batson declared that it is a violation of the Equal Protection Clause for a party to exercise a peremptory strike of a potential juror solely on the basis of that juror's race, ethnicity, or gender. Batson, 476 U.S. at 89, 106 S.Ct. 1712; McFadden III, 369 S.W.3d at 739. The Supreme Court reasoned that "those on the venire must be 'indifferently chosen,' to secure the defendant's right under the Fourteenth Amendment to 'protection of life and liberty against race or color prejudice.' " Batson, 476 U.S. at 86–87, 106 S.Ct. 1712, (quoting Strauder v. West Virginia, 100 U.S. 303, 309, 25 L.Ed. 664 (1880)).

Missouri courts have established a three-step procedure for evaluating a Batson challenge. State v. Murray, 428 S.W.3d 705, 711 (Mo.App.E.D.2014)(citing McFadden III, 369 S.W.3d at 739). First, the party raising the Batson challenge must object to the strike of a specific venireperson, and identify the protected class to which the venireperson belongs. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992). Second, the party exercising the strike has the burden of coming forward with a specific and race-neutral explanation for striking the venireperson. Id. We require that the proponent's explanation be more than a mere denial of discriminatory purpose. McFadden II, 216 S.W.3d at 675. However, the proffered explanation will be deemed race-neutral if it is not inherently discriminatory. State v. Marlowe, 89 S.W.3d 464, 468–469 (Mo. banc 2002). Third, if the second step is satisfied, the burden shifts back to the party raising the Batson challenge to prove that the proffered explanation was pretextual and that the strike was truly motivated by racial animus. Murray, 428 S.W.3d at 711.

In each of his three Batson challenges Rashad contends that the explanation offered by the State for its peremptory strikes is a mere pretext for racial animus.

This Court has thoroughly stated the analysis for our review of pretext in a Batson challenge as follows:

We determine whether an explanation is pretextual by considering if it is plausible in light of the totality of the facts and circumstances of the case. Parker, 836 S.W.2d at 939. A plausible explanation is one that is race-neutral, clear and reasonably specific, legitimate, and related to the facts or issues of the case. McFadden [II ], 216 S.W.3d at 676. "A legitimate reason is not one that makes sense but one that does not deny equal protection." State v. Weaver, 912 S.W.2d 499, 509 (Mo. banc 1995). Nevertheless, "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Marlowe, 89 S.W.3d at 469(quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). Additionally, we will consider a list of non-exclusive factors, including: "the explanation in light of the circumstances; similarly situated jurors not struck; the relevance between the explanation and the case; the demeanor of the [prosecutor] and excluded venire members; the court's prior experiences with the prosecutor's office; and objective measures relating to motive." State v. Johnson, 284 S.W.3d 561, 571 (Mo. banc 2009). Although the presence of similarly situated panelists who remain on the panel is "crucial," and "often determinative of pretext," their presence is not dispositive of pretext. Bateman, 318 S.W.3d at 684, 690.

State v. Murray, 428 S.W.3d at 711.

With this guidance, we consider each of the Batson challenges raised by Rashad.

I. Point One—Venireperson Jackson

Rashad argues that the trial court clearly erred in overruling his Batson challenge to the State's peremptory strike of venireperson Jackson because a similarly situated white venireperson, Jones, was not struck. We disagree.

Applying the first step of the Batson test, Rashad successfully made a prima facie case of racial discrimination. Defense counsel made a timely objection and...