State v. Aziz

844 S.W.2d 531, 1992 Mo. App. LEXIS 1718, 1992 WL 332630
Missouri Court of Appeals·Decided November 17, 1992·No. Nos. 59612, 61032·Published·Cited by 5 cases

Opinion

CRANE, Judge.

A jury found Wasim Aziz guilty of stealing in violation of § 570.030 RSMo 1986. The trial court found him to be a prior and persistent offender and sentenced him to seven years imprisonment. Aziz filed a pro se motion for post-conviction relief under Rule 29.15. His counsel filed an amended motion one day out of time. The motion court denied both motions after an evidentiary hearing. Aziz appeals both the judgment of the trial court and the order of the motion court.

On his direct appeal Aziz contends that the trial court erred in overruling his Bat-son motion without requiring the state to give reasons for its strikes. He also contends the court committed plain error in making two other rulings. We remand the case to the trial court for further proceedings on the Batson motion.

In his appeal from the order of the motion court, Aziz asserts that the motion court erred in denying his motion for post-conviction relief after an evidentiary hearing. In his motion he claimed he was denied his right to effective assistance of counsel when his attorney failed to adequately prepare and investigate the case, to have certain photographs admitted into evidence, and to adequately cross-examine the state’s witnesses on prior inconsistent statements. He also claims ineffective assistance of post-conviction counsel. We affirm the order of the motion court.

DIRECT APPEAL

The sufficiency of the evidence is not in dispute. The evidence at trial revealed that Aziz took a briefcase, credit cards and clothing from the victim’s parked car. An [534] eyewitness observed the theft from his apartment window and notified police. With the eyewitness’s help, the police apprehended Aziz who was carrying some of the victim’s property. Aziz did not testify at trial. His defense of misidentification was asserted through cross-examination.

For his first point on direct appeal, Aziz contends that the trial court erred in overruling his Batson motion without considering or requiring the state to provide reasons for its use of five peremptory strikes against black venirepersons. After the parties had made their peremptory strikes, the court asked them if the jury was the one they had selected to hear the case. Aziz’s attorney said the jury was not acceptable. The trial judge told her, “We’ll take that up in a minute.” The judge then discharged the venirepersons not selected and called the attorneys to the bench, where Aziz’s attorney said she would like to make a Batson motion. The judge noted that six black jurors remained on the jury and denied the motion.

The state argues that Aziz waived his Batson challenge because it was not made before the venire was discharged. We disagree. A defendant’s Batson challenge is timely made if raised immediately prior to the venire’s being excused. State v. Parker, 836 S.W.2d 930, 937 (Mo. banc 1992). In this case counsel for defendant started to raise a Batson challenge just prior to the venire being excused. The challenge was not waived by the intervening action of the court in dismissing the venire before hearing the motion.

The trial court denied the motion after determining that six black jurors remained on the jury. At the time of this trial in December, 1990, there was authority that any inference of discrimination was undercut where a substantial number of a minority group remained on a jury. Decisive reliance was placed on the fact that minority jurors remained on the jury. See State v. Crump, 747 S.W.2d 193, 196 (Mo.App.1988). After Powers v. Ohio, — U.S. -, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), which held that Batson also was intended to protect minority jurors from discriminatory strikes, the percentage of minority members left on the jury ceased to be a circumstance which “undercut” any inference of discrimination. State v. Robinson, 811 S.W.2d 460, 462 (Mo.App.1991). After Powers, the state’s failure to use all of its strikes against venirepersons of a racial minority and the presence of a racial minority on a defendant’s jury are relevant factors for consideration only to the extent that they indicate that race was not the prosecutor’s motive for the challenged strikes. Parker, 836 S.W.2d at 940.

The trial court also summarily denied the motion without requiring the prosecutor to give race-neutral explanations for the challenges. In State v. Antwine, 743 S.W.2d 51, 64 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988), the Missouri Supreme Court required Missouri trial courts, when considering Batson challenges, to consider the state’s explanations in determining whether a prima facie case had been made. The procedure required by Antwine engendered confusion because it attempted to consolidate the three-step Batson inquiry into one contemporaneous proceeding. As a result of this difficulty, the Missouri Supreme Court and the court of appeals issued opinions in which these courts appeared to abandon Antwine in favor of a three-step Batson analysis. Thus, in State v. Burgess, 800 S.W.2d 743, 747 (Mo. banc 1990), the Missouri Supreme Court held that neutral explanations were not required where a defendant failed to establish that the relevant circumstances raised an inference of discrimination. See also State v. Hunter, 802 S.W.2d 201, 204 (Mo.App.1991); State v. Hudson, 815 S.W.2d 430, 433 (Mo.App.1991).

In Parker, the Missouri Supreme Court recognized the confusion stating, “The apparent abandonment of Antwine in favor of traditional Batson analysis has left the trial courts without clear guidance as to the proper procedure to follow when a defendant raises a Batson challenge.” 836 S.W.2d at 939. Parker, which was decided approximately a year and a half after the Aziz trial, readopts the Antwine procedure [535] and specifically directs the trial court to take the following actions when confronted with a timely Batson motion:

1. The defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable racial group to which the venireperson or persons belong.
2. The trial court will then require the state to come forward with reasonably specific and clear race-neutral explanations for the strike.
3. If acceptable reasons are articulated, the defendant has the burden to show that the proferred reasons were pre-textual and the strikes were racially motivated.

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State v. Aziz, 844 S.W.2d 531, 1992 Mo. App. LEXIS 1718, 1992 WL 332630 (Mo. Ct. App. 1992).

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