State v. Smith

• Decision Date: 18 August 1987
• Docket Number: No. WD,WD
• Citation: 737 S.W.2d 731
• Parties: STATE of Missouri, Respondent, v. Richard D. SMITH, Appellant. 38500.
• Court: Missouri Court of Appeals

Page 731

737 S.W.2d 731

STATE of Missouri, Respondent, v. Richard D. SMITH, Appellant.

No. WD 38500.

Missouri Court of Appeals,

Western District.

Aug. 18, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 29, 1987.

Application to Transfer Denied Nov. 17, 1987.

Sean D. O'Brien, Public Defender, S. Dean Price, Asst. Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, C.J., and SHANGLER, PRITCHARD, TURNAGE, CLARK, MANFORD, LOWENSTEIN, BERREY and GAITAN, JJ.

TURNAGE, Judge.

Richard D. Smith appeals from his convictions of involuntary manslaughter, § 565.024.1, RSMo Cum.Supp.1984, and armed criminal action, § 571.015, RSMo 1978. He argues that his rights under the federal and state constitutions were violated by the prosecutor's improper use of peremptory challenges in jury selection and that the court erred in numerous respects in instructing the jury.

Affirmed.

Smith killed Mary Hennessy by brutally beating her during the course of sado-masochistic sexual activities on the evening of August 18, 1985. Smith used various objects to beat and injure Hennessy, including a cane, electrical wiring and plastic car molding. Hennessy died on August 20, 1985 as a result of wounds from the beating.

Smith was charged with Second Degree Murder and Armed Criminal Action by committing Second Degree Murder with and through the use, aid and assistance of a dangerous instrument. The jury convicted Smith of Involuntary Manslaughter and Armed Criminal Action in connection with Involuntary Manslaughter.

I.

Smith's first point is that the court erred in failing to discharge the petit jury on the grounds that the prosecutor used peremptory challenges to strike five jurors on the basis of race.

Smith is a white man. The prosecutor in this case used five of his six peremptory challenges to strike black people from the jury. Two black people served on the jury of twelve; blacks thus constituted 16.66% of the actual jury. Blacks constituted 20% of the population of Jackson County, according to the 1980 Census of Population published by the United States Department of Commerce, Bureau of the Census, a fact which this court judicially notices. Varble v. Whitecotton, 354 Mo. 570, 190 S.W.2d 244, 246 (banc 1945).

At trial, Smith moved to discharge the petit jury on the ground that the state used

its peremptory challenges in a systematic effort to exclude blacks from the jury. Counsel cited the case of People v. Wheeler, (apparently referring to People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978)). The court denied the motion

In his motion for new trial, Smith again objected to the state's use of its peremptory challenges, this time on the ground that such use denied Smith equal protection of the laws under the fourteenth amendment to the federal constitution, as construed in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

This argument ignores the fact that the Batson court specifically limited its holding to cases in which the defendant shows "that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." 106 S.Ct. at 1723. Accordingly, Batson does not support Smith's argument that a white man's equal protection rights are violated by invidious use of peremptory challenges to exclude blacks from his jury. See State v. Christensen, 720 S.W.2d 738, 739 (Mo.App.1986).

Nor has any case been cited or located which holds that a member of one race is denied equal protection when members of another race have been stricken from his jury. In fact Fields v. People, 732 P.2d 1145, 1150 (Colo.1987), quotes W. LaFave and J. Israel, Criminal Procedure, Ch. 21, § 21.2 at 709 (1984), that under equal protection a challenge can only be made by a defendant who is a member of the excluded class. The court added that under equal protection the right to be tried by one's peers is not so clearly undermined when the members excluded are not members of the same group as the defendant. Id. at 1150[1, 2].

This court concludes that Smith is not entitled to relief under Batson on an equal protection argument.

Smith now argues that the prosecutor's acts violated Smith's rights under the sixth amendment to the federal constitution and Mo. Const. Art. I, § 22(a), to be tried by an impartial jury. However, Smith failed to raise these arguments, either at trial or in his new trial motion. Consequently, neither the sixth amendment nor the Missouri Constitution claims were preserved for review. Kansas City v. Howe, 416 S.W.2d 683, 686-87 (Mo.App.1967).

However, even if Smith had preserved these contentions, he would not be entitled to relief. In Roman v. Abrams, 822 F.2d 214 (2d Cir.1987), the defendant was white. The Second Circuit held that a prosecutor's use of peremptory challenges to prevent any whites from sitting on the jury on account of their race would violate the defendant's sixth amendment right to the possibility of a jury reflecting a fair cross section of the community. Id., at 227-228. However, the court held that in the case before it the prosecutor had not excluded whites to such an extent that the petitioner was deprived of his sixth amendment rights:

Where ... the actions of the prosecutor have not succeeded in excluding the targeted group and have not reduced the petit jury representatives of that group dramatically below the group's percentage in the venire or in the population of the community, it is difficult to see that the defendant has in fact been denied the possibility that the Sixth Amendment guaranteed him [of a jury comprising a fair cross section of the community]. Rather, if that group is not significantly underrepresented, it appears that the possibility constitutionally guaranteed to the defendant has come to fruition and that the defendant has therefore not been injured by the prosecutor's efforts to eliminate the cross-section possibility.

Id., at 229. The court concluded that the jury in question contained a percentage of whites approximating the white population in average venire panels in Bronx County and in the community of Bronx County at large. Therefore, the petitioner was not entitled to habeas corpus relief.

This court finds the ruling of Roman on this point to be persuasive. While the sixth amendment does not require the

petit jury to meet a fair cross section test, it does require the venire to reflect the composition of the community at large. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1764-65, 90 L.Ed.2d 137 (1986). See Batson, 476 U.S. n. 6, 106 S.Ct. 1717 n. 6, 90 L.Ed.2d 80 n. 6. A criminal defendant has the right to be tried by a jury whose members have been selected by nondiscriminatory criteria. Batson, 476 U.S. 79, 106 S.Ct. 1717, 90 L.Ed.2d 80. Thus, the right assured is that the petit jury will be drawn from a venire that represents a fair cross section of the community by a purely random method without any consideration of race

This court joins the Roman court in condemning the practice of striking venire members on the basis of race, but when the effort to exclude persons because of race from a jury does not succeed in reducing the number of a particular race below the percent of that race in the community or on the venire, relief cannot be granted on the ground that the jury did not represent a fair cross section of the community.

The action of the prosecutor did not reduce the petit jury dramatically below the percent of blacks in the community. Thus, Smith was not injured by the prosecutor's peremptory strikes even if it could be said that they were used in a discriminatory manner. Thus, even if Smith's sixth amendment and Missouri Constitutional claims were considered, they would not entitle him to any relief.

II.

For his second point, Smith argues that the trial court erred in submitting an instruction permitting the jury to find him guilty of Armed Criminal Action in committing Involuntary Manslaughter, when he was only charged with the offense of Armed Criminal Action in committing Second Degree Murder.

Involuntary Manslaughter is a lesser included offense of Second Degree Murder. § 565.025.2(2)(b), RSMo Cum.Supp.1984. This court has specifically held that a defendant charged with Armed Criminal Action in the commission of a felony may be convicted of Armed Criminal Action in the commission of a lesser included felony. State v. Taylor, 724 S.W.2d 531, 533-36 (Mo.App.1986). Therefore, Smith's second point is denied.

III.

Smith's third point is that he was placed in double jeopardy by the court's submission of the Armed Criminal Action instruction, which permitted the jury to convict him of Armed Criminal Action either in connection with commission of Second Degree Murder or Involuntary Manslaughter. Smith argues that the instruction could have permitted the jury to find him guilty of "conduct constituting Murder in the Second Degree after acquitting him of that conduct in Count I."

Smith's argument is in essence an attack on the MAI-CR2d instructional scheme for submitting Armed Criminal Action. If Smith's argument were taken to its logical conclusion, it would mean that the court could never submit an Armed Criminal Action instruction based on a felony after it had given an instruction on the felony itself, for the jury might acquit on the underlying felony and convict on the Armed Criminal Action. Yet, MAI-CR2d 25.02, the appropriate instruction on Armed Criminal Action in Smith's case, clearly contemplated that by the time the court instructed on Armed Criminal Action, it would have already instructed on the underlying felony. This is obvious because the first element of the Armed Criminal Action verdict director is "that the defendant is guilty under Count --- of ( [name of the [und...