State v. Tims, Nos. 60806
Decision Date | 30 November 1993 |
Docket Number | Nos. 60806,63639 |
Citation | 865 S.W.2d 881 |
Parties | STATE of Missouri, Plaintiff-Respondent, v. Lester TIMS, Defendant-Appellant. Lester TIMS, Movant, v. STATE of Missouri, Respondent. |
Court | Missouri Court of Appeals |
Henry B. Robertson, St. Louis, for defendant-appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jennifer A. Glancy, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant, Lester Tims, was convicted in a jury trial of forcible rape, § 566.030 RSMo 1986, forcible sodomy, § 566.060 RSMo 1986, and kidnapping, § 565.110 RSMo 1986.
Defendant was originally sentenced as a Persistent Sexual and Class X Offender to two life terms and thirty years of incarceration all to be served consecutively without probation or parole. The sentence and judgment were subsequently corrected by an order nunc pro tunc striking defendant's sentencing status as a Class X Offender. The order also dismissed the remainder of defendant's Rule 29.15 motion.
On direct appeal, defendant claims the trial court erroneously denied his motion to quash the jury panel based on a Batson objection. He also alleges the trial court should not have admitted testimony regarding his request for an attorney and the termination of the police investigation because it effectively violated his Fifth Amendment right to silence.
Defendant filed notice of appeal regarding his 29.15 motion. In his brief, however, defendant did not raise any argument on this issue and the motion court's ruling is therefore affirmed.
The facts are herein set out only as they are relevant to the issues on review. Defendant approached, threatened and kidnapped an eleven-year-old girl from a playground where she had been playing with two of her cousins. He took her to an abandoned building and, over the course of two days, sodomized and raped her repeatedly. After the victim escaped those confines, she and her cousin provided the authorities with sufficient information to identify defendant and lead to his apprehension.
When the police arrested defendant, they first approached him and asked to verify his identity. Defendant responded by standing up, turning his back, and presenting his wrists for handcuffs. Two detectives took defendant into custody and transported him to the police station. En route, the detectives informed defendant of his Miranda rights, and the defendant simultaneously recited these rights back to the detectives. He thereafter indicated a willingness to waive his right to remain silent. After arriving at police headquarters, a detective again informed defendant of his rights. Defendant indicated he understood those rights and would sign a waiver and give a videotaped confession.
After completing the video, the officers recognized discrepancies between defendant's version of the events and the victim's report. They proceeded to question defendant off tape regarding these discrepancies. Defendant eventually declined to answer further questions and requested an attorney; at which point all questioning ceased.
At trial, during voir dire, defense counsel timely moved to quash the jury panel after the prosecutor exercised her peremptory strikes. Defense counsel claimed a Batson violation, in that the prosecutor's strikes were not exercised in a race-neutral fashion. The prosecutor then volunteered justifications for her strikes and the judge accepted her explanations and overruled the objection.
Further, during the direct examination of one of the arresting detectives, the prosecutor asked about the conclusion of defendant's confession. The police officer testified that, when questioned about discrepancies in his videotaped confession, the defendant refused to answer any further questions and he requested an attorney. Defense counsel objected to this testimony because it violated defendant's Fifth Amendment right to remain silent. The trial judge overruled this objection. Subsequently, defendant was convicted on all counts. We consider each issue raised on appeal in turn.
In his first point defendant argues that the trial court erred by overruling his motion to quash the jury panel after the state's peremptory strikes. He asserts that the strikes made by the prosecutor were not race neutral and that the explanations offered to justify the strikes were pretextual. We decline to review for reversible error because this issue has not been properly preserved for review.
State v. Parker, 836 S.W.2d 930 (Mo. banc 1992), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992), and its progeny have established a 3-step procedure for handling a Batson challenge in Missouri courts. First, a complainant must raise a timely and appropriate objection at trial regarding one or more venirepersons struck by the opposing side and these venirepersons must be a part of a cognizable minority. Cf. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ( ).
After a proper objection has been raised, the Parker procedure requires that the opposing side offer reasonably specific and race-neutral explanations for its strikes. These explanations are deemed race-neutral unless discriminatory intent is evident in the explanation. Assuming the explanations are adequate, the burden again shifts back to the objecting party to show that the strikes were pretextual and racially motivated. Parker, 836 S.W.2d at 934. The trial court then rules on the Batson issue based on an evaluation of all of the facts and circumstances surrounding the challenged strikes.
Under Powers, a defendant is responsible not only for protecting his own rights, but he is also charged with the authority to be "a motivated, effective advocate for the excluded venirepersons' rights." Powers, 499 U.S. at 414, 111 S.Ct. at 1372. Striking a venireperson based on racially-discriminatory motives offends the equal protection rights of both the defendant and the struck venireperson. Id.; Parker, 836 S.W.2d at 936.
Further, the Missouri Supreme Court has determined that "the proper remedy for discriminatory use of peremptory strikes is to quash the strikes and permit those members of the venire stricken for discriminatory reasons to sit on the jury if they otherwise would." State v. Grim, 854 S.W.2d 403, 419 (Mo. banc 1993). This procedure prevents the wrongful dismissal of the injured venirepersons and preserves both their civil privilege and responsibility to serve as a juror. For this purpose, a defendant is charged with the license to represent the interests and rights of the venirepersons. Powers, 499 U.S. at 413-414, 111 S.Ct. at 1372.
In accord with Grim, it has been established that "quashing the panel and commencing the jury selection process anew does not really correct the error" of a prejudicial strike. State v. Sutherland, 859 S.W.2d 801, 803 (Mo.App.E.D.1993). The purpose of a Batson challenge is not to replace an entire panel, which would effectively deny the wrongly struck jurors their opportunity to serve, but to quash only the prejudice or wrongful strike.
In this case, the defense counsel failed to use the appropriate form of objection for a Batson challenge when she moved to quash the jury panel. Furthermore, even if the motion were acceptable, defendant failed to sustain his burden of proving the prosecutor's explanations were pretextual. Therefore, he did not preserve this issue for review. Following Sutherland, we also decline to address this point for plain error. Id.
Defendant further argues the trial court erroneously admitted testimony which violated his Fifth Amendment right to silence. At trial, the prosecutor questioned an arresting officer about the details of defendant's videotaped confession. The police officers conducting the interrogation had noted various discrepancies between defendant's story and the witness' account of events. The officers then attempted to clarify the facts, at which point defendant refused to answer any further questions and requested an attorney. Specifically, defendant objects to the following interrogation by the prosecutor and resulting testimony:
A defendant's post-arrest silence or language representing silence cannot be used as evidence to incriminate him. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). It cannot be remarked on, testified to nor implied in the prosecution's presentation of its case. State v. Dowling, 348 Mo. 589, 154 S.W.2d 749, 755 (Mo.1941); State v. Martin, 797 S.W.2d 758, 764 (Mo.App.E.D.1990). More specifically, a defendant's silence "in the face of a charge of guilt made under circumstances calling imperatively for an admission or denial" or where a jury could conclude that only a guilty person would have remained silent cannot be admitted. State v. Starks, 459 S.W.2d 249, 252 (Mo.1970); State v. Green, 798 S.W.2d 498, 503 (Mo.App.S.D.1990).
However, once this right to remain silent has been waived, all speech, or non-silence, by a defendant may be admitted into evidence and remarked on. In fact, even testimony describing certain "silence" is "fair subject for comment at trial" until this waiver is revoked. State v. Pulis, 822 S.W.2d 541, 546 (Mo.App.S.D.1992); State v. Frentzel, 717 S.W.2d 862, 866 (Mo.App.S.D.1986).
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