State v. Theus, s. WD

• Decision Date: 24 March 1998
• Docket Number: Nos. WD,s. WD
• Parties: STATE of Missouri, Respondent, v. Joe THEUS, Appellant. 51810, WD 53731.
• Court: Missouri Court of Appeals

Page 234

967 S.W.2d 234

STATE of Missouri, Respondent, v. Joe THEUS, Appellant.

Nos. WD 51810, WD 53731.

Missouri Court of Appeals Western District.

March 24, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 28, 1998.

Application for Transfer Denied

June 16, 1998.

Rosemary E. Percival, Asst. Public Defender, Kansas City, for appellant.

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

HANNA, Judge.

The defendant, Joe L. Theus, was found guilty by a Jackson County jury of second degree murder of Prentiss Hunt, § 565.021.2, RSMo 1994; robbery first degree of Gregory Smith, § 565.020, RSMo 1994; assault in the first degree of Chickoiyah Miller, § 565.050, RSMo 1994; and three corresponding counts of armed criminal action, § 571.015, RSMo 1994. The court sentenced the defendant as a prior and persistent offender, § 558.016, RSMo 1994, to consecutive terms of twenty years imprisonment for robbery first degree, life imprisonment for murder second degree and ten years for assault in the first degree all concurrent to equal terms of imprisonment for the corresponding crimes of armed criminal action. After a post-conviction evidentiary hearing, the motion court entered findings of fact and conclusions of law denying the defendant's Rule 29.15 motion.

On appeal, the defendant argues that three of the state's peremptory challenges violated the mandate of Batson, ¹ that the evidence did not support his conviction for assault first degree, that the court permitted inadmissible testimony regarding the police's videotaped lineup, and that his attorney was ineffective.

On the evening of July 8, 1994, Cherylene Berry was driving a 1982 two-door Honda. Her passengers were Gregory Smith, who was sitting in the front seat, and Michelle Reese, Chickoiyah Miller and Candice sitting in the backseat. They were going to perform at a party at the Kansas City Community Center. On the way there, Berry noticed a medium-sized gray vehicle following her. She recognized the driver of the gray car as her ex-boyfriend, Clifford White. She was also previously acquainted with the defendant who was a passenger in White's car. White followed Berry into the parking lot of the community center. Berry got out of her car. The defendant asked her if Smith was in the car. Berry leaned into the car and told Smith that his friends wanted him. She then turned to let her passengers out of the two-door Honda.

When she turned back around, the defendant was standing next to her with a gun. He said he was looking for Smith. He pushed Berry back into the car and slammed the door shut. He partially covered his face with his shirt and told the passengers to put their hands up and to look the other way. Smith asked, "What's up?" The defendant responded, "You know what's up." Through the open sunroof, he ordered Smith to take off his jewelry. Although the evidence was conflicting, there was evidence that the defendant told Smith to hurry up, and then looked in the backseat and asked, "Who's back here?" and recognized three young girls. The defendant then ordered Smith to hand him the video camera. Because he was so nervous, Smith handed the defendant the empty camera bag, forgetting that they had taken the camera out of the bag to test it. The defendant fired through the sunroof into the car. Smith gave his jewelry to the defendant.

At this point, Prentiss Hunt, a maintenance man, walked around the corner of the building and headed towards Berry's car. The defendant told him to get back and fired a shot at Hunt who grabbed his chest and fell to the ground. The defendant shot into Berry's car again and left the scene in White's car.

After the defendant left, Miller realized that a bullet had struck her foot. Berry drove to Children's Mercy Hospital where the shattered bone in Miller's foot was treated. In the meantime, the police responded to the scene and found Hunt laying on the ground. Mr. Hunt told police that he had walked around the corner when an unknown person shot him. He died later at the hospital from the gunshot wound to his chest. The police recovered two spent shell casings and an empty video bag from the scene.

The police were called to the hospital. Berry identified the defendant and White as the individuals involved. She accompanied them to the police station where she identified the defendant from a previously videotaped police lineup and identified White from a photographic lineup. Nearly a week later, the police sought Berry after they learned that she had given them a false name. When she was located and brought in for questioning, she explained that she gave the police a false name because there was a warrant out for her arrest, and she did not want to be arrested. She also told the police where they could find Michelle Reese. Reese was located and identified the defendant from the videotaped lineup and identified White from the photographic lineup. About a month after the incident, detectives located Smith. He also picked the defendant out of the same videotaped lineup. From the photographic lineup, he identified White.

The day after the incident, the defendant was at the police station regarding an unrelated event. While at the station, the defendant was told that he was wanted for questioning regarding the death of Prentiss Hunt. After being given his Miranda ² warning, he agreed to talk to the police. He denied any involvement, and claimed he was somewhere else during the evening of July 8, 1994. The defendant claimed that he went with his girlfriend to rent a video, and then returned to their home where they spent the evening watching television with his girlfriend's friend, Olivia Mayfield. Between 10:30 and 11:00 P.M., the three of them left the house to pick up his daughter from his sister's house. They returned home and spent the remainder of the evening there. Ms. Mayfield went home at approximately 1:30 A.M. that evening. The police contacted the defendant's girlfriend, his sister, and Olivia Mayfield, who all corroborated the defendant's alibi.

At trial, the defendant's girlfriend, his sister, Olivia Mayfield, and the manager of a video store presented his alibi defense. Their testimony placed the defendant at home all evening, except when he rented a video and when he picked up his daughter from his sister's home. The physical evidence consisted of a slug, which was removed from Hunt's body, two spent shell casings found at the scene, and an empty video camera bag. Examination of the car revealed a bullet hole through the top of the driver's seat. Two slugs were also retrieved from the floor of the backseat of Berry's car. Ballistic tests indicated that the slugs and the shell casings had all been fired from the same gun. Fingerprints taken from the car could not be connected to the defendant.

In his first point on appeal, the defendant claims that the trial court erred in overruling his Batson based objection to the state's use of its peremptory challenges to remove three African-American venirepersons; Edward Nichols, Rose Johnson, and Helen Nelson. The defendant argued that the state's race-neutral explanation was pretextual. The state explained that its questions of the venire about their friends or relatives in the penal system were designed to determine the extent of contact which they may have had with their friends or relatives who were in custody, not whether they had friends or family in prison. It was on this basis that the state exercised its peremptory strikes. The defendant contends that the state's voir dire questions violated the dictates of Batson because the greater portion of the prison population is African-American. The prosecutor stated to the trial court that "[w]e did not strike persons that simply stated that they had friends or relatives in the penitentiary who indicated that they didn't have any contact with them or didn't have any personal knowledge of the circumstances." The trial court found that the state's explanation was sufficiently race-neutral and overruled the objection.

In Batson v. Kentucky, the Supreme Court determined that the state's use of its peremptory challenges was subject to the Equal Protection Clause. 476 U.S. 79, 89-90, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). As such, Missouri has established a three-part test to evaluate objections based on Batson grounds. In State v. Parker, the Missouri Supreme Court said:

First, the defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify a cognizable racial group to which the venireperson or persons belong. The trial court will then require the state to come forward with reasonably specific and clear race-neutral explanations for the strike ... Assuming the prosecutor is able to articulate an acceptable reason for the strike, the defendant will then need to show that the state's proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated.

836 S.W.2d 930, 939 (Mo. banc 1992) (citations omitted).

The defendant makes his pretextual argument on the premise that the existence of similarly situated white jurors, who were not struck by the prosecution, is probative of pretext. He argues that Mr. Harding, a white venireperson, was not struck and was never asked about his contact with his mother while she was in prison. Conversely, the defendant argues, Ms. Nelson was struck even though the state did not inquire as to the contact she had with her son while he was in prison.

If the state gives a reasonably specific, race-neutral reason for their peremptory strikes, it will be deemed sufficient unless there is "discriminatory intent in that explanation." State v. Weaver, 912 S.W.2d 499, 509 (Mo. banc 1995), cert. denied, --- U.S. ----, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996)(citing Hernandez v. New York, 500 U.S. 352, 358-60, 111 S.Ct. 1859,...