State v. Rogers, 50615
|753 S.W.2d 607
|24 May 1988
|STATE of Missouri, Plaintiff-Respondent, v. Anthony Ray ROGERS, Jr., Defendant-Appellant.
|Court of Appeal of Missouri (US)
Deborah Lambdin Stockhausen, Henry B. Robertson, Asst. Public Defenders, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen. Jefferson City, Kevin B. Behrndt, Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
Anthony Ray Rogers, Jr., appeals the judgment of conviction after a jury found him guilty of unlawful possession of a concealable firearm in violation of § 571.070 RSMo 1986. The trial court found appellant to be a persistent offender and sentenced him to fifteen years' imprisonment to run concurrently with the twenty year sentence previously imposed in an earlier conviction.
We had affirmed appellant's conviction earlier on April 29, 1986. Our Missouri Supreme Court accepted appellant's application for transfer on September 16, 1986, and subsequently entered its order on March 4, 1987, requiring an evidentiary hearing be held to determine the validity of appellant's constitutional claim challenging the prosecutor's use of its peremptory strikes as discriminatory under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
After the hearing on April 24, 1987, the trial court entered its findings of fact and conclusions of law on July 21, 1987. In response, appellant and respondent filed additional briefs with our supreme court. The supreme court retransferred the cause for our consideration in light of State v. Antwine, 743 S.W.2d 51 (Mo. banc 1987).
Appellant does not challenge the sufficiency of the evidence to sustain his conviction; therefore, we briefly summarize the evidence.
At approximately 1:00 p.m. on December 4, 1984, a radio dispatch to St. Louis police was made concerning a robbery in progress in the 2000 block of Gano Street in the City of St. Louis, Missouri. Two detectives on patrol in the area responded. They turned their patrol vehicle into an alley and saw appellant there. Appellant was carrying a bundle of clothing. Appellant saw the detectives and started to run. As he fled, a handgun fell from the bundle of clothing and bounced a few feet on the ground. Appellant stopped, picked up the gun, returned it to the bundle of clothing, and then entered an adjoining residential yard. Another officer approached appellant from a different direction and detained him. A search of the yard revealed the bundle of clothing and a .38 caliber handgun. Subsequent to his arrest, appellant told the arresting officer that he had been released from the penitentiary a few weeks earlier.
As part of the state's case, and by separate hearing, evidence was introduced revealing appellant's prior convictions for second degree murder and second degree burglary. Appellant received a sentence of twenty years for the murder and two years on the burglary conviction. He was paroled on November 6, 1984. Based on this evidence, the trial court found appellant to be a persistent offender.
Appellant testified on his own behalf. He denied that he owned either the clothing or the weapon or that he had ever possessed them. Appellant presented two witnesses who testified that in their brief encounter with and in their observation of appellant just prior to his arrest, they never saw him with the clothing or the handgun.
Based on the foregoing evidence, the jury returned its verdict finding appellant guilty. The trial court imposed a sentence of fifteen years, to be served concurrently with the remainder of appellant's twenty-year sentence for second degree murder under his prior conviction. This appeal followed.
Appellant presents two issues for our determination on appeal: whether the prosecution used its peremptory challenges in a racially discriminatory manner and whether one of appellant's prior two convictions used as an element of the offense charged was improperly used to establish appellant's status as a persistent offender.
Appellant's first point challenges the jury panel on the basis that the prosecution used its peremptory challenges to strike black jurors contrary to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We review appellant's Batson claim in light of the voir dire, the subsequent evidentiary hearing and the trial court's findings of fact and conclusions of law following the Batson evidentiary hearing. In Antwine our supreme court set forth the standard for appellate review of Batson issues. 743 S.W.2d at 66. Citing Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985), our supreme court stated that a finding of discrimination, or a finding of no discrimination, is a finding of fact and that a finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. 743 S.W.2d at 66. Thus, if the trial court's account of the evidence is plausible in light of the record viewed in its entirety, an appellate court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Anderson, 105 S.Ct. at 1512; Antwine, 743 S.W.2d at 66.
Against this background, we review the trial court's findings concerning the circuit attorney's exercise of his peremptory strikes.
The trial court found that, during appellant's June 1985 trial, the circuit attorney struck seven members of the black race from a venire panel of thirty-six. Of the final jury plus the one alternate, only one juror was black. The brother of the only black juror not struck worked in the office of the circuit attorney. The trial court found that appellant established a prima facie case of discrimination because the state used all its peremptory strikes against blacks. The circuit attorney presented reasons for its use of six of the peremptory challenges; however, the court did not require an explanation for the state's use of its strike against the alternate. The trial court reviewed the reasons given by the circuit attorney for exercising his peremptory challenges. The trial court concluded the circuit attorney's peremptory strikes were neither based on nor motivated by the race of the venire persons challenged.
Venireperson Valery Zachary stated she had an uncle currently serving a term of imprisonment in the St. Louis Medium Security Institution. Appellant was on parole when charged with unlawful possession of a concealable firearm. The circuit attorney explained he did not want jurors with incarcerated family members because of the danger they might sympathize with appellant and feel he had served enough time already. The same reason was proferred by the circuit attorney in striking another venireperson, Thomas Hopgood. Hopgood had a cousin who had been in the penitentiary for seven or eight years at the time of appellant's trial.
Appellant attacks the circuit attorney's explanation for striking Zachary and Hopgood. Appellant claims the explanation for striking Zachary and Hopgood applied equally to three non-black panel members Willie Lucille Hittler, Eric Thomas and Patricia Burgin. Specifically, appellant states that, although these white jurors also had relatives with criminal pasts, these jurors were not challenged. Citing State v. Butler, 731 S.W.2d 265 at 272 (Mo.App.1987), appellant argues the circuit attorney's actions indicate racial discrimination in the jury selection process.
We note some inconsistency in appellant's inclusion of Thomas. Our review of the record indicates Thomas was the sole black left on the jury panel. We need not discuss him. The relatives of Burgin and Hittler, although convicted of crimes, were no longer incarcerated at the time of appellant's trial, unlike the relatives of Zachary and Hopgood. We conclude that Zachary and Hopgood were not similarly situated to whites not stricken, and that the circuit attorney's explanation for striking them was racially neutral.
Appellant also complains of the circuit attorney's use of a peremptory strike to remove Robert F. Henry, Jr., another black juror. Robert Henry's younger brother, although never incarcerated, had been convicted of a crime four or five years prior to appellant's trial. In defending his strike of Henry, the circuit attorney had explained he feared Henry might in some manner or to some degree harbor ill feeling toward the police or that he might compare his brother's offense and disposition of the case involving appellant. The trial court accepted the foregoing reason as legitimate and racially neutral.
Appellant again emphasizes that Hittler and Burgin, similarly situated whites, were not struck. Burgin's younger brother had been convicted four years ago and received one year's probation. Hittler's grandson had been convicted for driving while intoxicated two years earlier. The record does not disclose whether Burgin's brother or Hittler's grandson were ever incarcerated or what sentence Hittler's grandson received.
We agree that, at first blush, Henry's situation appears similar to that of Burgin and Hittler. However, our supreme court has pointed out that evidence of a failure to strike a similarly situated white juror does not mandate reversal; rather, it is a factor to be considered by the trial court in making its final determination. Antwine, 743 S.W.2d at 65; State v. Taylor, 747 S.W.2d 150, 153 (Mo.App.E.D.1988). Differences in age, sex and occupation are also factors for consideration. In addition, Batson requires the trial judge to embrace a participatory role in voir dire, noting the subtle nuance of both verbal and nonverbal communication from each member of the venire and the...
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