State v. Reynolds

• Decision Date: 20 September 2016
• Docket Number: No. ED 102951,ED 102951
• Citation: 502 S.W.3d 18
• Parties: State of Missouri, Respondent, v. Richard Reynolds, Appellant.
• Court: Missouri Court of Appeals

502 S.W.3d 18

State of Missouri, Respondent,

v.Richard Reynolds, Appellant.

No. ED 102951

Missouri Court of Appeals, Eastern District, DIVISION THREE .

Filed: September 20, 2016 Motion for Rehearing and/or Transfer to Supreme Court Denied October 26, 2016

Amy E. Lowe, St. Louis, MO, for appellant.

Karen L. Kramer, Jefferson City, MO, for respondent.

Angela T. Quigless, P.J.

INTRODUCTION

Richard Reynolds appeals from the jury verdict convicting him of first degree murder, first degree assault, two counts of armed criminal action, and unlawful use of a weapon. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

The facts, which this court reviews in the light most favorable to the verdict, indicate that in July of 2012, Richard Reynolds ("Reynolds" or "Appellant") and three other individuals fired into a car occupied by A.B. and his girlfriend, A.C.¹ A.B. was in the driver's seat while A.C. was in the front passenger seat. Reynolds came out from a gangway between two houses armed with a gun, ran up to the car, pointed the gun at A.B., and opened fire. When A.B. attempted to drive away, two of the other individuals with Reynolds also started shooting at the car. At least 3 bullets struck the vehicle. A.B. drove away. When he got to his home, A.C. told him she had been shot. A.B. then drove his girlfriend to Barnes Hospital. A.C. died four days later from a gunshot wound to the head. The bullet that killed her entered through her left cheek, travelled through her skull, and lodged underneath the base of her skull in the spinal column of her neck.

Reynolds was indicted on five counts: Count I, murder in the first degree for the death of A.C., in violation of RSMo § 565.020 (2000)² ; Count II, armed criminal action predicated on the murder in Count I, in violation of section 571.015; Count III, assault in the first degree for shooting at A.B., in violation of section 565.050; Count IV, armed criminal action predicated on the assault in Count III, in violation of section 571.015, and; Count V, unlawful use of a weapon for discharging a firearm at a motor vehicle which resulted in death, in violation of section 571.030.1(9) as enhanced by section 571.030.7.

The case proceeded to trial. During voir dire, the court spoke with two female venirepersons, Juror #1706 and Juror #1429, outside the presence of the venire panel regarding complaints they filed against the court's bailiff.³ First, the court called in Juror #1706. After confirming that she filed a complaint, the court stated: "So to be perfectly honest, I don't see how I would have you on this jury given the fact that you filed a complaint against him, and that has nothing to do—I'm not commenting on the merits of it. That's not the point. My point is that that can create a problem. So I'm going to tell you now, just don't answer any questions [during the jury selection process]. You're going to have to sit here through the rest of the process. Do not raise your hand. Do not answer any questions, okay?" Juror #1706 responded that she understood and had no questions.

Next, the court called in Juror #1429 and stated: "It has come to my attention that you have filed a complaint against my bailiff in this division; is that correct?" When Juror #1429 confirmed that this was correct, the court added: "All right, and I'm not here to comment on the merits of it or anything like that, but I think you can see the obvious problem that this creates for the Court. If you were to be selected for this jury you would be interacting with him on a regular basis for the next several days, and my concern is in any case, but especially in a case of this magnitude and seriousness, that that could cause a distraction for you and the bailiff, and that would not be fair to the parties quite frankly. So I don't see any way that you are going to make it on to this jury. Having said that you are going to have to sit here throughout the remainder of the questions. I do not want you to raise your hand. I do not what [sic] you to answer any questions. Is that understood?" Juror #1429 responded that she understood and had no questions.

After completion of voir dire and while the trial court was ruling on challenges for cause, the court on its own motion struck both Juror #1706 and Juror #1429 from the venire panel. No further explanation was given by the court. Neither party raised any objection.

Also during the jury selection process, the State used a peremptory strike to dismiss Juror #518, an African American male, from the venire panel. The defense immediately raised a Batson objection, alleging that the prosecution's use of a peremptory strike on Juror #518 was an "improper attempt to exclude him on the basis of his race, in violation of his rights and of [the Defendant's] rights to due process and protection under the law." Defense counsel asked the court to "take judicial notice that [Juror #518] is an African-American male, and the only African-American male left on the panel."

The State offered the following race-neutral reason for striking the juror:

"When [Juror #518] was called upon his answers were curt. His facial expression was completely disinterested and sort of unresponsive. He mumbled his first few answers until he was instructed to speak up, and that generally makes me nervous. And you can see that if you flip back to page 1. [Juror #1429] who is a white female gave similar sort of responses. She only spoke when called upon. She gave short curt answers. She seemed generally disinterested during most of jury selection. Both when I watched these two people when I spoke, and then even when Ms. Johnson spoke, I kept an eye on all of these people who I was worried about, and so I struck a white female who did the exact same thing as a black male, so the opposite sex and an opposite race."

The defense objected to the use of Juror #1429 as a similarly situated white juror and argued that the State's proffered reason was pretextual, stating:

"I don't believe the record supports the state's explanations especially for the demeanor explanation. I didn't see it, and the state didn't inject it into the record or question the juror about it. Additionally, there were other white males who were not struck who gave short answers. [Venireperson P], also located on page 5 line 5, he only answered the questions when called upon. It does not mean he is a disinterested juror. [Juror #518] did not say anything that would make him a bad juror for the state. Additionally, when he was asked about the question regarding cool reflection he responded to Ms. Benniger. He didn't ignore her comments. When I asked him, ‘Can you presume [the Defendant] innocent,’ he said, ‘yes.’ ‘Could you hold the state to their burden?’ ‘Yes.’ ‘Can you listen and make a determination about witness credibility?’ ‘Yes.’ So based on that and based on the fact that there are similarly situated white males I believe this is a pretextual decision."

The Court overruled Reynolds' Batson objection, stating: "[Juror #518] did, [sic] I will agree with the state, insofar as the description of his demeanor and his answers. I also would agree that the white female who was struck was similar. I did note that she, once brought to my attention by the state, that she gave similar types of answers to these questions, and so I don't find this to be pretextual. I'm going to deny the Batson Challenge." The court then dismissed Juror #518, the jury was empaneled, and the case proceeded to trial.

After trial, the jury convicted Reynolds on all five counts. The trial court sentenced Reynolds to life in prison without parole Count I, 10 years in prison on Count II, 15 years in prison on Count III, 10 years in prison on Count IV, and 30 years in prison on Count V. All sentences were concurrent.

Reynolds filed a motion for judgment of acquittal notwithstanding the verdict or a new trial. The motion alleged that the trial court erred in overruling Reynolds' Batson objection to the dismissal of Juror #518, alleging that the prosecution's peremptory strike was race-based and the proffered reason was pretextual. Reynolds did not raise any objections concerning either the dismissal of Jurors #1706 and #1429 from the venire panel or the constitutionality of the multiple convictions based on the same conduct.

POINTS ON APPEAL

Reynolds raises three points on appeal. He argues that the trial court: (1) plainly erred in allowing convictions for both armed criminal action and unlawful use of a weapon as they constitute cumulative punishment in violation of his right to be free from double jeopardy; (2) plainly erred in dismissing two female jurors from the venire panel in violation of his rights to due process and a fair trial by an impartial jury; and (3) clearly erred in overruling his Batson objection to the prosecutor's peremptory strike of an African-American male juror from the venire panel. Reynolds does not challenge the sufficiency of the evidence.

DISCUSSION

I. Point One—Double Jeopardy

For his first point on appeal, Reynolds argues that the trial court plainly erred when it allowed convictions for both armed criminal action and unlawful use of a weapon because these dual convictions based on the same course of conduct violated his right against double jeopardy as guaranteed by the Fifth Amendment to the United States Constitution.⁴ We disagree.

A. Standard of Review

Reynolds concedes that he failed to raise this argument to the trial court and requests plain error review under Rule 30.20. To preserve a constitutional issue for appellate review, it must be raised at the earliest opportunity consistent with good pleading and orderly procedure, and must be properly preserved throughout the proceeding, or this court's analysis is limited to plain error review. State v. Wickizer , 583 S.W.2d 519, 523 (Mo.banc 1979) ; State v. Baxter , 204 S.W.3d 650, 652 (Mo.banc 2006).

Plain error review under Rule 30.20 is discretionary and involves a two-step process. State v....