State v. Sproling

Decision Date10 May 1988
Docket NumberNo. 51035,51035
Citation752 S.W.2d 884
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Dwayne SPROLING, Defendant-Appellant.
CourtMissouri Court of Appeals

Henry B. Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Presiding Judge.

Defendant was indicted by the Grand Jury of the City of St. Louis on two charges of robbery first degree. Section 569.040 RSMo 1978. Count I alleges defendant, acting with another on May 29, 1985, forcibly stole a wallet from Van Henderson and in the course thereof used and threatened immediate use of a dangerous instrument. Count II alleged defendant, acting with another on May 27, 1985, forcibly stole a wallet and U.S. currency from C. Jackson and in the course thereof used and threatened the immediate use of a dangerous instrument. The trial court granted defendant's motion for a severance. Count I was tried to a jury. On the day the jury found defendant guilty of Count I he entered a plea of guilty on the crime charged in Count II. Defendant was tried as a prior offender. He was sentenced to a term of fifteen years on Count I and a concurrent term of fifteen years on Count II. On December 20, 1985 the trial court overruled defendant's motion for a new trial on Count I. A timely appeal was filed on December 30, 1985. Thereafter, in response to defendant's claim that the court erred in not quashing the jury panel under the facts and on the authority of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), this court remanded to the trial court for a hearing on that issue. We now consider defendant's contention that the court erred in permitting two police officers to testify regarding a statement made by defendant after he was identified at a line-up. We also reconsider the Batson issue with the benefit of a transcript of the proceedings after remand.

The parties tried the present case in November 1985. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) was decided thereafter. We remanded to the trial court on the Batson issue in March 1987. The trial court held a hearing and reconsidered the Batson issue on July 10, 1987, twenty months after the jury trial. At the time of hearing on remand, the trial court and counsel for both sides did not have the benefit of State v. Antwine, 743 S.W.2d 51 (Mo. banc 1987). This sequence of events, trial--Batson--remand hearing--Antwine, will occur in a limited and finite number of cases. We review the facts and issues with this sequence in mind. As a result we have some empathy for counsel and the trial court in their efforts to apply Batson. They were required to overcome disabilities including: (1) trial before Batson, (2) a lapse of time between trial and hearing, and, (3) Batson hearing before Antwine.

Defendant entered a plea of guilty on Count II to the same type of crime charged in Count I on the same day that the jury found defendant guilty on Count I. Defendant received concurrent fifteen year sentences as a prior offender. Our Supreme Court has not decided the question of whether to apply the concurrent sentence doctrine adopted by a number of federal circuit courts of appeal and we decline to do so. Application of that doctrine would curtail a full review of the claim of error on Count I. We give attention to the merits of defendant's two claims of error.

The burden of persuasion on a Batson complaint "lies with and never shifts from the defendant." State v. Antwine, 743 S.W.2d at 63. In order to carry this burden defendant must first establish a "prima facie case which creates a rebuttable presumption that the prosecutor exercised his peremptory challenges in a discriminatory manner." Id. at 64. In the present case the state does not contest that defendant made a prima facie case by proof that: (1) he is a member of a cognizable racial group, black; (2) the prosecutor exercised all six of its peremptory challenges to remove members of his race; and, (3) these facts support a presumption that the prosecutor acted in a prohibited and discriminatory manner. The issue becomes whether the explanations of the prosecutor were case specific and presented credible and sufficient reason to support the finding of the trial court that they were adequate to rebut the presumption created by defendant's prima facie showing. Defendant did respond to the explanations. We consider both explanation and response.

We are directed by Antwine to reverse and remand only if the fact finding of the trial court that there was no discriminatory practice is "clearly erroneous." We are required to give due regard to the opportunity of the trial court to judge the credibility of witnesses. Antwine, 743 S.W.2d at 66. The trial judge in a Batson hearing must consider: (1) the nature of the particular case in search of determining whether the racial membership of the jury may benefit the state, given the nature of the charge, the race of victim(s) and witnesses; (2) the manner in which the prosecutor conducts voir dire, including questions asked, or not asked, retention or removal of venirepersons giving the same or similar answers together with whether such venirepersons are retained or stricken; and, (3) an evaluation of the explanation itself. Antwine, 743 S.W.2d at 65.

With this standard of review in mind and with recognition of the timing of the trial and subsequent development of the law we look to the explanations offered by the assistant circuit attorney.

First, we find that this particular case offered the state an opportunity to benefit by discriminatory practices. Defendant, a black man, was ultimately tried by an all white jury. The crime charged was a violent crime involving the use of a dangerous instrument and theft from a person.

Second, it is difficult to evaluate the sufficiency of the recollection of the trial court regarding the prosecutor's demeanor in conducting the voir dire. The court and prosecutor had the benefit of the transcript prepared for this appeal before remand. The prosecutor had retained brief notes. The prosecutor recalled an incident involving venireperson, Bernie Scarprilla, who exhibited a hostile attitude toward jury duty which was interpreted to be hostile to the state. Venireperson Mary Primm was rejected as being nonresponsive and too receptive to what Scarprilla was saying. Venireperson Fred McCoo gave answers which were interpreted to be sympathetic with Scarprilla's comments. Defendant's concern that the prosecutor asked Mrs. Primm no questions, or that McCoo's answers were ambiguous or, in fact, favorable to the state because he had voted for the current circuit attorney and had a brother who was a police officer, do not entirely undermine the impressions of the prosecutor. A venireperson may be considered "unresponsive" solely on the basis of impression.

The prosecutor struck one venireperson because she was a prior rape victim. She had been unable to make an identification. Identification was anticipated as an issue during the trial.

Venireperson, Cleaver Abbott, was stricken because of his responses to a lengthy inquiry by defense counsel on the issue of presumption of innocence. The prosecutor developed an impression that this venireperson may have become too closely attached to the presumption. Defendant argues that the inquiry was developed by direct and personal questions similar to those asked of other panelists. Even if this is true, we cannot say that the trial court was clearly erroneous in accepting the explanation.

Venireperson, Earlean Anderson, was stricken because the prosecutor interpreted her employment, teacher's aid, as indicating a possible sympathy toward defendant who was, at the time of trial, twenty years of age. The prosecutor also detected some confusion in the mind of Anderson regarding the nature of an arrest and the conviction of a felony. The strike was motivated by two thoughts. It was not based solely on employment, which, by itself is not necessarily case specific as required by Batson.

Venireperson, Bobetta Fuller, was stricken although she was asked no questions by counsel for either side. The prosecutor noted on the jury list an observation that Fuller had "dressed down" and entered a "no" beside her name. The prosecutor explained that she believed dress might reflect a lack of respect for the system. See, People v. Moss, 188 Cal.App.3d 268, 233 Cal.Rptr. 153 (1986) (appearance, demeanor and overt actions in court as acceptable explanation).

One alternate black venireperson was stricken on the explanation that because he was planning to go on a vacation he may have become pressured if the case would not conclude by the end of the week.

There is no showing that the alternate jurors selected were required to serve. Hence, no prejudicial result could have flowed from a strike of a black alternate.

Finally, we have the evaluation of the trial court implied in the decision accepting the explanations of the prosecutor as racially neutral. We recall the problem of delay between the time of the trial and the Batson hearing. However, our review of the record offers no support for a conclusion that the findings of the trial court on the Batson issue were not aided by a personal recall of the events. We do not find the factual findings were clearly...

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8 cases
  • State v. Hudson, s. 56177
    • United States
    • Missouri Court of Appeals
    • June 12, 1990
    ...cert. denied, 477 U.S. 909, 106 S.Ct. 3286, 91 L.Ed.2d 574 (1986); Bailey v. State, 754 S.W.2d 38, 39 (Mo.App.1988); State v. Sproling, 752 S.W.2d 884, 888 (Mo.App.1988). However, the general rule is not applicable when the defendant does not exercise his right to remain silent and elects, ......
  • State v. Reynolds
    • United States
    • Missouri Supreme Court
    • November 19, 1991
    ...to apply the doctrine.6 The concurrent sentence doctrine was given mention in yet one other reported Missouri decision, State v. Sproling, 752 S.W.2d 884 (Mo.App.1988). In that case, the Eastern District of the Court of Appeals simply acknowledged the currency of such a doctrine among "a nu......
  • State v. Green, s. 15830
    • United States
    • Missouri Court of Appeals
    • October 31, 1990
    ...The statement, "things went a little too far," may have been an admission of guilt; it was for the jury to decide. State v. Sproling, 752 S.W.2d 884, 888-89 (Mo.App.1988). Point I is ruled against defendant for this additional Finally, this court notes that at trial the questions which defe......
  • State v. Hardy
    • United States
    • Missouri Court of Appeals
    • July 21, 2009
    ...the issue of counsel. A statement followed by a claim of privilege does not render the statement inadmissible. See State v. Sproling, 752 S.W.2d 884, 889 (Mo.App.1988)(citing State v. Laws, 661 S.W.2d 526, 529 (Mo. banc 1983)). Since the record shows that Hardy was informed of and understoo......
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