Randolph v. State

778 S.W.2d 692, 1989 Mo. App. LEXIS 1166, 1989 WL 91338

• Court: Missouri Court of Appeals
• Decided: August 15, 1989
• Docket: No. 55504
• Status: Published

Opinion

PER CURIAM.

Movant appeals from the denial of his Rule 29.15 motion after an evidentiary hearing. We affirm.

A jury convicted movant of capital murder, § 565.001, RSMo 1978, and sentenced him to life imprisonment without possibility of probation or parole for 50 years. We affirmed on direct appeal. State v. Randolph, 729 S.W.2d 524 (Mo.App.1987).

Movant, a black man, filed pro se and amended motions alleging, among other things, that trial counsel was ineffective for failing to raise a Batson claim (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)) when the prosecutor used her six peremptory challenges to remove black persons from the venire panel. In its findings of fact the motion court noted that “[movant’s] venire panel was made up of 23 blacks, 37 whites which equates to 38% black and 62% white. After the prosecutor had exercised all [her] strikes to remove members of the black race, the jury consisted of 4 blacks and 8 whites or 33% black and 67% white, nearly the same ratio as the venire panel.” The court then concluded, “Without further evidence it is the finding of this Court that [movant] would have failed to establish a prima facie case of discrimination in jury selection on the part of the prosecutor [in] exercispng] ... peremptory strikes.”

Our review is limited to determining whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 29.15(j); Brummell v. State, 770 S.W.2d 379, 380 (Mo.App.1989). The motion court’s findings, conclusions, and judgment are clearly erroneous only if a review of the entire record leaves the appellate court with a definite and firm impression that a mistake has been made. Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986).

To prevail on an ineffective assistance of counsel claim, a movant must show that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A movant “must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim.” Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987) (emphasis in original).

A motion court and this court may proceed directly to the issue of prejudice without first determining whether counsel’s conduct was deficient. Davis v. State, 748 S.W.2d 698, 700 (Mo.App.1988).

The voir dire examination in mov-ant’s case occurred on April 28, 1986, and the last day of trial was April 30, 1986, the same day Batson was handed down. We need not decide whether counsel’s performance was deficient for failing to raise the Batson issue because we conclude movant has not satisfied the second prong of Strickland. As the trial court noted, there were four black people on movant’s jury, the racial composition of which approximated that of the venire. Under these circumstances, there is no reasonable probability that a Batson claim would have succeeded. See, State v. Muhammad, 757 S.W.2d 641, 642 (Mo.App.1988); State v. Crump, 747 S.W.2d 193, 196 (Mo.App.1988). Movant has not demonstrated prejudice.

The findings and conclusions of the motion court are not clearly erroneous.

Judgment affirmed.