State v. Smulls

• Citation: 935 S.W.2d 9
• Decision Date: 25 June 1996
• Docket Number: No. 75511,75511
• Parties: STATE of Missouri, Respondent, v. Herbert SMULLS, Appellant.
• Court: United States State Supreme Court of Missouri

Page 9

935 S.W.2d 9

STATE of Missouri, Respondent, v. Herbert SMULLS, Appellant.

No. 75511.

Supreme Court of Missouri,

En Banc.

June 25, 1996.

Motion for Rehearing Overruled and Opinion Modified on

Courts Own Motion Nov. 19, 1996.

William J. Swift, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, John M. Morris, Assistant Attorney General, Jefferson City, for Respondent.

Darryl J. Anderson, Bruce C. Cohen, St. Louis, for amicus curiae American Postal Workers Union AFL-CIO.

Barbara A. Frey, Executive Director, Minneapolis, MN, Richard Wilson, Washington College of Law, The American University, Washington, DC, Robert Popper, University of Missouri-Kansas City School of Law, Kansas City, for amici curiae Minnesota Advocates for Human Rights and The International Human Rights Law Clinic of Washington College of Law.

WHITE, Judge.

A jury convicted defendant of first degree murder and other crimes. Defendant was sentenced to death for the murder conviction. Defendant's Rule 29.15 motion for post-conviction relief was overruled. This Court has exclusive appellate jurisdiction. Mo. Const. art. V, § 3. The judgments entered on defendant's convictions and sentence are affirmed. The judgment entered on defendant's Rule 29.15 motion is reversed and the cause remanded for further proceedings.

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, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994).

Stephen and Florence Honickman owned and operated a jewelry business. Typically, customers would make an appointment to examine the jewelry for sale. In early July 1991, a person identifying himself as "Jeffrey Taylor" called the Honickmans and made an appointment to buy a diamond. "Jeffrey Taylor" was later identified as defendant. On July 22, 1991, defendant and Norman Brown went to the Honickmans' store. After viewing several diamonds, defendant and Brown left the store without making a purchase.

On the afternoon of July 27, 1991, defendant and Norman Brown followed another customer into the store. Florence Honickman was unable to show them any jewelry at that time but suggested she might be able to help them later. Defendant and Brown returned to the store that evening. After viewing some diamonds, defendant and Brown went into a hallway, purportedly to discuss the diamond prices. A short time later, Florence Honickman looked up and saw defendant aiming a pistol at her. She then ran and hid behind a door. Defendant fired three shots at her, striking her arm and side. Defendant then fired several shots at Stephen Honickman, who was struck three times. Defendant and Brown stole jewelry worn by Florence Honickman and other items in the store. After the two men left the store, Florence Honickman contacted the police. Stephen Honickman died from his wounds, and Florence Honickman suffered permanent injuries from the attack.

A short time after the robbery, police stopped defendant and Brown for speeding. While defendant was standing at the rear of his car, the police officer heard a radio broadcast describing the men who robbed the Honickmans' store. Defendant and Brown fit the descriptions. The officer ordered defendant to lie on the ground. Defendant then ran from his car but was apprehended while hiding near a service road. The police found jewelry and other stolen items from the store in the car and in Brown's possession. The following morning police found a pistol on the shoulder of the road on which defendant drove prior to being stopped for speeding. Bullets test fired from the pistol matched bullets recovered from the store and Stephen Honickman.

Defendant was charged with first degree murder, first degree assault, two counts of first degree robbery and two counts of armed criminal action. The State subsequently filed an information in lieu of indictment charging defendant with the six offenses and as a prior, persistent and class X offender. The jury found defendant guilty of first degree robbery of Florence Honickman but failed to reach a verdict as to the remaining counts. Upon retrial, the jury found defendant guilty of the five remaining counts. ¹ After the penalty hearing, the jury recommended the death penalty. The trial court sentenced defendant to death for the murder count and to concurrent terms of life imprisonment for each of the remaining counts.

Defendant filed a pro se and amended Rule 29.15 motion for post-conviction relief. The motion court denied certain claims by defendant without an evidentiary hearing and denied the remaining claims after an evidentiary hearing. Defendant then appealed to this Court. While the appeal was pending, the State filed a motion for temporary remand to the trial court for "gender Batson " findings. This Court sustained the State's motion and the cause was temporarily remanded to the trial court. After a hearing, the trial court found the reasons offered by the State were not pretextual.

II.

Defendant first argues the prosecutor exercised a peremptory strike against venireperson Sidney, in violation of the prohibition in Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). ² The Equal Protection Clause of the United States Constitution prohibits using peremptory strikes to exclude jurors on the basis of race. Id. To establish a claim under Batson, a defendant must object to the prosecutor's use of a peremptory challenge as violating Batson and identify the cognizable racial group to which the stricken venireperson belongs. Shurn, 866 S.W.2d at 456. The State must then provide a race-neutral explanation for the peremptory challenge. Id. If the prosecutor articulates an acceptable reason or reasons, a defendant must prove the proffered reason was merely pretextual and, in fact, the strike was racially motivated. Id.

Defendant objected to the prosecutor's challenge of venireperson Sidney as violating Batson and identified Ms. Sidney as African-American. The prosecutor then gave the following explanation for the challenge:

Judge, I made nine strikes. I did strike the juror Ms. Sidney who, I guess, for the record was a black female. My reasons for striking Ms. Sidney are based both upon what I observed during our voir dire and based upon my experience in trying criminal lawsuits, which has exceeded 50 cases in this courthouse including several cases before this Court in the nine years that I have been a prosecuting attorney.

My concerns with Ms. Sidney began yesterday. Ms. Sidney was very silent during all of the questioning. I observed at one point during my questioning concerning the death penalty a glare on her face as I was questioning that area. She was seated in the back row, I believe, yesterday. When I looked directly at her and asked that last row a question, she averted her eyes and wouldn't answer my question and wouldn't look at me. That made me very nervous.

The only response I was able to get out of Ms. Sidney today was when I asked her about her occupation. At first she responded with what I though[t] was a very irritated answer. She indicated that she is a mail sorter for Monsanto Company. That she sorts mail for, I believe she said, 5000 people. And her husband works for the post office. And I believe she listed him as a custodian.

It's been my experience in the nine years that I've been a prosecutor that I treat people who work as mail sorters and as mail carriers, letter carriers and people In my experience as a prosecutor, in trying cases where I've had several cases and left mail people on the jury, had them result in a hung jury. The most recent of which was a murder case in this courthouse last September, State versus Dana Ruff (phonetically) where a mail carrier was the holdout for a hung jury in that case.

who work for the U.S. Post Office with great suspicion in that they have generally--in my experience in many of the trials that I've had--are very disgruntled, unhappy people with the system and make every effort to strike back.

I also have several in-laws who are employees of the postal department and even though they are somewhat relatives, I share the same opinion of them. So I treat them with great suspicion.

When she glared at me and just her general attitude, which included her outfit--which yesterday, I believe, included a beret and today was a ball cap with sequins on it, I just felt that she wouldn't be a good state[']s juror. Certainly, not a strong juror in the consideration of death, should we get to that part of the trial.

And also I would point out for the Court that I struck juror number eight, Ms. Dillard. I struck her for the very same reason in that she is a letter carrier and works delivering mail. And I though[t] her attitude was also confrontational. And I did not feel that her answers were ones that would give rise to me believing she would be a strong state[']s juror.

Ms. Dillard, I would point out, is a white female. And I struck her for virtually the same reasons. It's been my experience that when I left postal workers on who seem to have an attitude, based on my interpretation, that I've had bad results. And that's why I struck her.

Defendant then argued the prosecutor's reasons were pretextual and racially motivated. The trial court overruled defendant's Batson objection.

A reviewing court will set aside the trial court's finding regarding whether the prosecutor discriminated in the exercise of a peremptory challenge only if the finding is clearly erroneous. State v. Weaver, 912 S.W.2d 499, 509 (Mo. banc 1995). The trial court's finding is clearly erroneous only if the reviewing court is left with a definite and firm conviction a mistake has been made. State v. Gray, 887 S.W.2d 369, 385 (Mo. banc 1994), cert. denied, --- U.S. ----, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995). Review of the transcript reveals the prosecutor's stated reasons fall...