State v. Shaw

• Decision Date: 28 December 1999
• Citation: 14 S.W.3d 77
• Parties: (Mo.App. E.D. 1999) . State of Missouri, Respondent, v. Phillip Shaw, Appellant Case Number: ED73907 Missouri Court of Appeals Eastern District Handdown Date:
• Court: Missouri Court of Appeals

14 S.W.3d 77 (Mo.App. E.D. 1999)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Phillip Shaw, Appellant

Case Number: ED73907

Missouri Court of Appeals Eastern District

Handdown Date: 12/28/99

Appeal From: Circuit Court of City of St. Louis, Hon. Thomas C. Grady

Counsel for Appellant: Nancy L. Vincent

Counsel for Respondent: Krista D. Boston

Opinion Summary: Phillip Shaw appeals from a judgment on convictions of first degree murder and armed criminal action.

AFFIRMED.

Division Three holds: (1) The admission of a hearsay statement was, at most, harmless error and not prejudicial. (2) The trial court did not clearly err in ruling the State's peremptory strikes of two black venirepersons were not racially motivated. (3) Shaw did not preserve his gender Batson objections for appellate review. (4) The State's definition of "deliberation," an element of first degree murder, during closing arguments was not error, plain or otherwise.

Opinion Author: Clifford H. Ahrens, Judge

Opinion Vote: AFFIRMED. Teitelman, P.J., dissents in separate opinion, Mooney, J., concurs.

Opinion:

Defendant, Phillip Shaw, appeals from a judgment on convictions of one count each of first-degree murder and armed criminal action. Defendant claims he was prejudiced by the following trial court errors: (1) admitting an inculpatory hearsay statement; (2) overruling his race and gender Batson objections; and (3) permitting the State to misdefine the term "deliberation" as an element of first-degree murder during closing arguments so as to lower its burden of proof on that element. We affirm.

On May 10, 1995, a group of friends was shooting craps in the basement of the residence at 3932 Blaine in urban St. Louis. The group included Eugene Perkins, Keith Macon, Castidel Wooten, and Shaw's co-defendant at trial, Rodney Smith. Smith discussed a plan to rob an acquaintance, Toriano Burston, who was expected to join in the craps game later. Burston was known to wear much jewelry and carry cash on his person. Perkins and Wooten agreed to participate in the plan. Their role was to shoot craps with Burston while Smith was hiding. Smith would then emerge and rob Burston.

Burston eventually arrived at the craps game. Shortly thereafter, the group was told to leave the basement, whereupon they decided to relocate their game to a vacant house across the street at 3931 Blaine. At this point, Smith told Perkins he was going to get defendant to assist in the robbery. Perkins, Wooten, and Burston continued the game in the vacant house, where they were joined by newcomers Aubrey Williams and William Ruffin.

Defendant and Smith entered the vacant house through a rear window. Defendant was armed with a .357 caliber handgun, Smith with a .44. Rather than attempting to rob Burston, the two defendants immediately began shooting at him. Burston sustained nine gunshot wounds to various parts of his body. He died from shots to the head and chest. Frank Stubitz, a firearms examiner for the City of St. Louis Police Department, testified that two, possibly three, bullets found in the victim's body were fired from defendant's gun.¹ When the police found Burston's body, his shoes were missing and he was not wearing any jewelry.

Defendant was subsequently arrested and charged with one count of murder in the first degree (Count I), one count of robbery in the first degree (Count III), and two counts of armed criminal action (Counts II and IV, relating to the murder and robbery charges, respectively). Following a joint trial with Rodney Smith as a codefendant, a jury convicted defendant on Counts I and II and acquitted on Counts III and IV. Defendant was sentenced to life imprisonment without parole on Count I with a consecutive term of life without parole on Count II. This appeal followed.

Defendant first argues the trial court abused its discretion in admitting hearsay testimony over his objection. During the State's examination of Eugene Perkins, it elicited testimony concerning Rodney Smith's plan to rob the victim. When asked what, if anything, Smith said about defendant's role in the planned robbery, Perkins responded "[Smith] said he was going to go get [defendant] to help him rob Toriano." Because Smith elected not to testify at trial, as was his right under the Fifth Amendment, defendant claims Smith's statement was hearsay, the admission of which violated his right to cross-examine witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, 18(a) of the Missouri Constitution.²

A hearsay statement is an out-of-court statement offered to prove the truth of the matter asserted. State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997), cert. denied, 118 S. Ct. 186 (1997). Hearsay statements are inadmissible unless they fall within a recognized exception to the hearsay rule. Id. The admission of a hearsay statement against a criminal defendant violates his or her Sixth Amendment right to confront adverse witnesses unless the statement falls within a firmly rooted exception to the hearsay rule or it contains particularized guarantees of trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66 (1980); State v. Debler, 856 S.W.2d 641, 648 (Mo. banc 1993).

Smith's out-of-court statement was hearsay because it was offered to prove the truth of the matter asserted, i.e., that defendant actually assisted in the murder of the victim. Missouri courts recognize an exception to the hearsay rule for statements of the declarant's present state of mind.³ Missouri courts have held this exception allows the admission of a hearsay statement of the declarant's present intention to engage in future conduct as proof the declarant acted in accordance with that intention, see, e.g., State v. Newman, 699 S.W.2d 29, 31 (Mo. App. 1985), Lewis v. Lowe & Campbell Athletic Goods Co., 247 S.W.2d 800, 804-05 (Mo. 1952), but have not decided whether it allows the same statement to be admitted as evidence of the future conduct of a third party. We need not decide this issue at this time, however, because even if admission of the statement was error, it was harmless error.

This court reviews for prejudice and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Richardson, 923 S.W.2d 301, 311 (Mo. banc 1996), cert. denied, 519 U.S. 972 (1996). At trial, the State presented two eyewitness accounts of the shooting, both of which identified defendant as one of the shooters. Such incriminating testimony negated any prejudicial effect the out-of-court statement may have had if it was, in fact, improperly admitted. Admission of the statement was, at most, harmless error. Point denied.

In defendant's second point, he claims the trial court erred in overruling his "race Batson" challenges⁴ to the State's peremptory strikes of black venirepersons S.M. and D.W., and his "gender Batson" challenges⁵ to the State's peremptory strikes of female venirepersons A.R. and D.M. Missouri courts use a three-step procedure when confronted with a purported Batson violation. The defendant must first raise a race or gender Batson challenge with regard to one or more specific venirepersons struck by the State.

The State must then come forward with a reasonably specific and clear race- or gender-neutral explanation for the strike. Finally, assuming the State's explanation is acceptable, the defendant must demonstrate such explanation was merely pretextual and that the strikes were motivated by race or gender. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992), cert. denied, 506 U.S. 1014 (1992).

In determining whether the defendant has proven purposeful discrimination, the trial court's chief consideration should be the plausibility of the prosecutor's explanations in light of the totality of the facts and circumstances surrounding the case. Any facts or circumstances that detract from or lend credence to the State's proffered explanations are relevant. Id. The trial court's determination of the propriety of the strike will not be reversed unless it was clearly erroneous, that is, we are left with a firm conviction that a mistake was made. State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987), cert. denied, 486 U.S. 1017 (1988).

The State explained it struck S.M. because she was weak on punishment. When asked if she could vote to impose a sentence of life imprisonment without parole, S.M. responded:

It would be a hard decision for me to make. I am not saying that I couldn't do it. . . . You know, it would be a hard decision for me to send either one of them to jail for the rest of their life because the penal system is supposed to be there to help them better themselves and give them some kind of guidance and maybe even come out and have a better life. By them both being so young --- I am still young myself and I know I wouldn't want to go away for the rest of my life without being given a second chance, so it would be a difficult decision for me to make.

Defendant points out the State did not strike R.J., a white venireperson he claims was similarly situated to S.M. When asked if he could vote to impose a sentence of life without parole, R.J. responded "It would be hard, but I can do it." The existence of similarly situated white venirepersons who were not struck by the prosecution is certainly probative of pretext. Parker, 836 S.W.2d at 940. However, R.J. was not necessarily similarly situated to S.M. Although both expressed concern about imposing the sentence sought, S.M.'s response was equivocal as to whether she could overcome her misgivings, whereas R.J. succinctly stated he could do so. These responses indicate S.M. was more hesitant about imposing the sentence sought than was R.J. This disparity lends credence to the State's explanation that S.M. was weak on punishment. The trial court's decision to...