State v. Shurn, No. 71098

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBENTON
Citation866 S.W.2d 447
Docket NumberNo. 71098
Decision Date23 November 1993
PartiesSTATE of Missouri, Respondent, v. Daryl SHURN, Appellant.

Page 447

866 S.W.2d 447
STATE of Missouri, Respondent,
v.
Daryl SHURN, Appellant.
No. 71098.
Supreme Court of Missouri,
En Banc.
Nov. 23, 1993.
As Modified on Denial of
Rehearing Dec. 21, 1993.

Page 454

Dave Hemingway, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

BENTON, Judge.

A jury convicted Daryl Shurn of murder in the first degree, but could not agree on sentence. The trial court then sentenced him to death. After an evidentiary hearing, the post-conviction court overruled his Rule 29.15 motion. On appeal, Shurn raises 21 points of

Page 455

error. This Court has exclusive appellate jurisdiction. Mo. Const. art. V, § 3. This Court affirms.

I.

The state charged Shurn and William Weaver with first degree murder for the death of Charles Taylor. This Court reviews the facts in the light most favorable to the verdict. State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984).

On July 6, 1987, Shurn and Weaver parked an Oldsmobile '98 outside of Taylor's apartment complex. After a confrontation at Taylor's door, Shurn and Weaver chased him behind the complex, and Taylor was shot. The evidence was unclear whether Shurn, Weaver, or both shot Taylor. Shurn and Weaver then returned to the car. Weaver then left the car and again went behind the complex. More shots were fired. Weaver returned to the car, and Shurn and Weaver drove away. After a chase, police officers apprehended Shurn and Weaver.

II. Grand Jury Composition

Shurn's first complaint relates to the racial composition of the grand jury that indicted him. At trial, he filed a motion to dismiss and quash the indictment, which alleged that the grand jury resulted from systematic exclusion of non-whites, women, and those 21 through 34 years of age. Shurn argued that this violated his equal protection rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and article I, §§ 2, 10 and 18(a) of the Missouri Constitution. He now contends that the trial court erroneously denied his motion because too few African-Americans served on the grand jury.

To establish an equal protection claim in the context of grand jury selection, the defendant must prove that the grand jury selection procedure has "resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs." Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977). The defendant must first show membership in a cognizable racial group singled out for different treatment. Id. Second, the defendant must show an underrepresentation "by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time." Id. The burden is on the defendant to show a substantial underrepresentation of his group in order to make a prima facie case, and shift the burden to the state. Id. at 495, 97 S.Ct. at 1280.

Shurn's evidence detailed the racial composition of seven grand jury pools, comprising 2,790 members with a known race. Of these, 186 members--or 6.67 percent--were African-American.

Shurn's evidence also detailed the racial composition of 10 grand juries, estimating that 11 blacks served on them. Because each grand jury has 12 jurors 1, the racial composition of the 10 grand juries was 9.17 percent black (Shurn asserts the percentage of black grand jurors as 8.33 percent). Thus, the percentage of black grand jurors exceeded the percentage of blacks in the pool.

Moreover, a representative number of blacks served on the grand juries. According to the stipulated census figures, blacks account for 11.26 percent of the population of St. Louis County. The disparity between the census of St. Louis County (11.26 percent black) and the racial composition of the grand juries referenced by Shurn (9.17 percent black) is insufficient to establish a prima facie equal protection claim under Castaneda. See, e.g., Castaneda, 430 U.S. at 495-96, 97 S.Ct. at 1280-81; State v. Baker, 636 S.W.2d 902, 909 (Mo. banc 1982), cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983).

III. Batson Challenge

Shurn next argues that the prosecutor's use of peremptory strikes violated his rights under the equal protection clause of the United States Constitution, which prohibits using peremptory challenges to exclude jurors on the basis of race. Batson v. Kentucky,

Page 456

476 U.S. 79, 90, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). To establish a claim under Batson, the defendant must object to the prosecutor's use of peremptory challenges as violating Batson and identify the cognizable racial group to which the stricken venirepersons belong. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992). The state must then provide race-neutral explanations for the peremptory challenges. Id. If the prosecutor articulates an acceptable reason, the defendant must prove that the state's proffered reasons were merely pretextual and in fact racially motivated. Id.

After strikes for cause, the panel consisted of 48 potential jurors, including six blacks. The prosecutor peremptorily excluded four of the blacks: venirepersons Grider, Lenox, Webster, and Hughes. Shurn then made a timely Batson objection.

As proof of racial motivation, Shurn emphasizes the following statement by the prosecutor:

Obviously, from the numbers, I could have attempted to remove all six blacks from the jury because I had more than enough preemptory [sic] challenges to accomplish that. I chose not to and instead used only four of my preemptory [sic] challenges to remove blacks and five to remove whites, leaving potentially at least, if Mr. Kirksey does not strike either remaining black, a jury with ten whites and two blacks. And that ratio, of course, I think from prior motions in this court and prior evidence in this court, is a greater percentage on this jury of black people than is in St. Louis County. So I don't feel that a prima facie case of a systematic exclusion is present.

Contrary to Shurn's claim, this statement does not per se establish discrimination. Instead, the prosecutor's failure to use all his challenges against blacks is relevant to show that race was not the motive for the use of peremptory strikes. Id. at 940.

The prosecutor explained: (1) that he struck venireperson Grider because she was a schoolteacher, was married to a pastor, and had earlier asked to be removed from the panel; (2) that he struck venireperson Lenox because she indicated she was reluctant to impose the death penalty unless the state proved that Shurn--and not his accomplice William Weaver--was the shooter, and he had requested the court to strike her for cause; (3) that he struck venireperson Webster because she "waffled" on whether she could impose the death penalty unless Shurn was the shooter, and seemed uninterested during voir dire; and (4) that he struck venireperson Hughes because she remarked, "we're not God," did not seem truthful, and showed hostility towards the state's case by nodding when another venireperson raised the issue of race.

The trial court has considerable discretion to determine the plausibility of the prosecutor's explanations and thus whether the defendant established that the prosecutor purposefully discriminated in using peremptory strikes. Id. at 934. "To be sufficient the explanation need only be race-neutral, reasonably specific and clear, and related to the particular case to be tried." Id., citing Batson, 476 U.S. at 98, 106 S.Ct. at 1724. "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." Parker, 836 S.W.2d at 934, citing Hernandez v. New York, 500 U.S. 352, ----, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991).

The trial court found that Shurn did not establish a prima facie showing of discrimination under Batson. An appellate court will not overturn such a finding unless clearly erroneous. Parker, 836 S.W.2d at 939 n. 7, citing Hernandez, 500 U.S. at ----, 111 S.Ct. at 1871, and State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988). An examination of the prosecutor's reasons for striking the four venirepersons indicates that the trial court's decision was not clearly erroneous.

IV. Trial Phase

A. Testimony that Taylor was a Potential Witness

The state, through the testimony of Detective Leyshock and assistant United

Page 457

States attorneys Clark and Herzog, established that victim Charles Taylor was a potential witness in the trials of Shurn's brothers, Charles and Larry. Detective Leyshock and attorney Clark also testified that Shurn's brother Larry saw them interviewing Taylor at the federal courthouse during Larry's trial. Shurn objects to this evidence as irrelevant.

Evidence must be relevant to be admissible. See State v. Mercer, 618 S.W.2d 1, 9 (Mo. banc), cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981). Evidence "is relevant if it logically tends to prove a fact in issue or corroborates relevant evidence which bears on the principal issue." Id.

This evidence goes to motive. The state's theory was that Shurn murdered Taylor because Taylor was a potential witness in the trials of his brothers Charles and Larry.

Parties generally have wide latitude developing evidence of motive. State v. Mallett, 732 S.W.2d 527, 535 (Mo. banc), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987). Where the defendant claims innocence, evidence of motive, or absence of motive, is relevant. See State v. Stapleton, 518 S.W.2d 292, 296 (Mo. banc 1975).

Trial courts have discretion to determine relevancy, and appellate courts will reverse that determination only upon a showing of abuse of...

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138 practice notes
  • State v. Parker, No. 74794
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1994
    ...Mo. Const. art. V, § 3. Affirmed. I. This Court reviews the facts in the light most favorable to the verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, --- U.S. ----, 115 S.Ct. 118, 130 L.Ed.2d 64 On March 27, 1990, Parker--then on probation--assaulted Elizabeth Loe......
  • State v. Gray, No. 75496
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1994
    ...476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). The requirements to establish a Batson claim are outlined in State v. Shurn, 866 S.W.2d 447, 456 (Mo. banc [T]he defendant must object to the prosecutor's use of peremptory challenges as violating Batson and identify the cognizabl......
  • State v. Richardson, No. 76059
    • United States
    • United States State Supreme Court of Missouri
    • May 28, 1996
    ...is not prejudicial because trial courts are presumed not to consider improper evidence when sentencing the defendant. State v. Shurn, 866 S.W.2d 447, 462-63 (Mo. banc 1993); McMillin, 783 S.W.2d at 96; State v. Six, 805 S.W.2d 159, 167 (Mo. banc), cert. denied, 502 U.S. 871, 112 S.Ct. 206, ......
  • Malicoat v. Mullin, No. 03-6301.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 11, 2005
    ...we find beyond a reasonable doubt that the prosecutor's improper appeal to religious bias in the jurors was harmless."); State v. Shurn, 866 S.W.2d 447, 464 (Mo.1993) (concluding that the prosecutor's statement in closing argument that "I'm asking you to take an eye for an eye" was an "isol......
  • Request a trial to view additional results
138 cases
  • State v. Parker, No. 74794
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1994
    ...Mo. Const. art. V, § 3. Affirmed. I. This Court reviews the facts in the light most favorable to the verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, --- U.S. ----, 115 S.Ct. 118, 130 L.Ed.2d 64 On March 27, 1990, Parker--then on probation--assaulted Elizabeth Loe......
  • State v. Gray, No. 75496
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1994
    ...476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). The requirements to establish a Batson claim are outlined in State v. Shurn, 866 S.W.2d 447, 456 (Mo. banc [T]he defendant must object to the prosecutor's use of peremptory challenges as violating Batson and identify the cognizabl......
  • State v. Richardson, No. 76059
    • United States
    • United States State Supreme Court of Missouri
    • May 28, 1996
    ...is not prejudicial because trial courts are presumed not to consider improper evidence when sentencing the defendant. State v. Shurn, 866 S.W.2d 447, 462-63 (Mo. banc 1993); McMillin, 783 S.W.2d at 96; State v. Six, 805 S.W.2d 159, 167 (Mo. banc), cert. denied, 502 U.S. 871, 112 S.Ct. 206, ......
  • Malicoat v. Mullin, No. 03-6301.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 11, 2005
    ...we find beyond a reasonable doubt that the prosecutor's improper appeal to religious bias in the jurors was harmless."); State v. Shurn, 866 S.W.2d 447, 464 (Mo.1993) (concluding that the prosecutor's statement in closing argument that "I'm asking you to take an eye for an eye" was an "isol......
  • Request a trial to view additional results

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