State v. Burnett

492 S.W.3d 646, 2016 Mo. App. LEXIS 630, 2016 WL 3437503
CourtMissouri Court of Appeals
DecidedJune 21, 2016
DocketNo. ED 102459
StatusPublished
Cited by6 cases

This text of 492 S.W.3d 646 (State v. Burnett) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burnett, 492 S.W.3d 646, 2016 Mo. App. LEXIS 630, 2016 WL 3437503 (Mo. Ct. App. 2016).

Opinion

KURT S. ODENWALD, Judge

Introduction

Percy Burnett (“Burnett”) appeals from the judgment of the trial court following a jury trial convicting him on one count of felony resisting arrest. The trial court sentenced Burnett to one year in a medium security institution. On appeal, Burnett argues (1) that the State presented insufficient evidence to convict him for felony resisting arrest because no evidence proved that officers arrested him for a felony; and (2) that the trial court should have granted his Batson1 motion because the State’s proffered reason for striking a juror was pretextual.

Because the State did not present sufficient evidence to prove that police contemplated, arresting Burnett for a felony, we grant Burnett’s first point. However, because the State presented sufficient evidence to convict Burnett for misdemeanor resisting arrest, and the jury found the requisite elements, we enter judgment against Burnett for misdemeanor resisting arrest. Burnett’s misdemeanor conviction necessitates our review of his Batson point, but we deny that point because Burnett failed to carry his burden to prove that the State’s race-neutral explanation was pretextual. Accordingly, the trial court’s judgment is reversed, a conviction for misdemeanor resisting arrest is en[648]*648tered, and the case is remanded for re-sentencing.

Factual and Procedural History

Burnett and his girlfriend (“Girlfriend”), who had been dating for three years, lived together at 3600 Bamburger in the City of St. Louis. On December 5, 2013, police responded to 3600 Bamburger on a call for a “flourishing” or “brandishing of a weapon.” Police arrived at the scene and encountered Girlfriend outside the home. Police entered the home, found Burnett hiding in a closet, and arrested him. The State charged Burnett with five felony counts and four misdemeanors. The felony counts were one count of kidnapping, two counts of second-degree domestic assault, one count of armed criminal action, and one count of resisting arrest. The misdemeanor counts were two counts of third-degree domestic assault and two counts of third-degree assault of a law enforcement officer. The State charged Burnett for felony — rather than misdemeanor — resisting arrest because, at the time Burnett allegedly resisted arrest, Officer Sean2 Fortune (“Officer Fortune”) “was making an arrest of defendant for Domestic Assault Second Degree,” which is a felony. The case proceeded to a jury trial.

1. Voir Dire

During voir dire, the State exercised a peremptory strike on Venireperson 63, Irene Brown (“Brown”). Defense counsel raised a Batson challenge, and the following exchange occurred:

[Defense]: Your Honor, I raise a Batson motion with respect to [Brown].
[Court]: [Brown], I don’t have her as saying too much. I don’t have her saying anything in my notes. But she does work for the county justice services as a correctional officer. Why would you want her off the jury? I think that’s a benefit to you. Anyway, you want her on? Under Batson, your point is what? Make a record that she is a black female and there are other similarly situated people. All right? And then we will hear — is that right?
[Defense]: That is correct, Judge.
[Court]: Then we will hear from the State.
[Prosecutor]: Just she is a correctional officer. I don’t like correctional officers on my jury. And there’s no other correctional officer that wasn’t struck.
[Court]: Is there a reason you don’t like them?
[Prosecutor]: Not in particular. I don’t find them to be particularly honest when it comes to the jury selection process. That has been my experience in my limited time here.
[Court]: Anything in response?
[Defense]: Your Honor, there’s nothing about her occupation that the prosecutor questioned or asked about, or rises to any kind of issue of honesty or dishonesty.
[Prosecutor]: But the standard for Bat-son is a race neutral reason, which her occupation certainly qualifies.
[Court]: Well, I think our history here in this circuit — of course this is the county circuit. This is not the city circuit. Our experience in the city circuit with correctional officers is, shall we say, checkered. Which I [649]*649don’t know if that’s what you are driving at or not. ' But in any event, not an offense to Irene, of course; but I will — I will dény that motion, the Bat-son motion on Brown indicating as I do, and finding that it is a race and gender neutral reason. All right. Is there anything else?
[Defense]: No.

II. Trial

After voir dire, the State presented its case-in-ehief. Three of the witnesses were Girlfriend and two of the police officers who responded to the scene — Officer William Hogg (“Officer Hogg”) and Sergeant Robert Ogilvie (“Sgt. Ogilvie”).

Girlfriend testified that Burnett was physically violent on the night police responded to the home. Girlfriend alleged that Burnett, at various times, attempted to stab her with a knife, hit her, choked her, and stomped on her stomach. At some point, Girlfriend testified that she escaped the house and encountered police outside. Girlfriend recounted telling police that her arm hurt, but that police “called an ambulance, because [she] couldn’t talk.” The ambulance transported Girlfriend to the hospital.

A. Testimony of Officer Hogg and Sgt. Ogilvie

Officer Hogg and Sgt. Ogilvie each testified consistently with one another. After 11:00 P.M. on December 5, 2013, Sgt. Ogil-vie responded to the scene. As Sgt. Ogil-vie pulled to the rear of Burnett's home, he saw Burnett exit the home and then run back inside. Sgt. Ogilvie broadcasted Burnett’s location over the police radio.

Meanwhile, Officer Hogg, who was in another police car, had received a call for a “flourishing” of a weapon. Officer Fortune was also in the car. The officers responded to Burnett’s address. .Upon arrival, the officers met Girlfriend and Girlfriend’s friend outside the home. Officer Hogg testified that -Girlfriend was “very frantic,” was shaking, and that her voice was “crackly.”3 After speaking with Girlfriend, Officer Hogg walked behind the home to meet with Sgt. Ogilvie to begin searching for Burnett.

The officers searched the basement first, but found no one. Officer Hogg went back outside and asked Girlfriend where she thought the officers could • find Burnett. Officer Hogg, Sgt. Ogilvie, and Officer Fortune re-entered the home. After announcing that they were the police, the officers searched the living room and then the closets. Burnett was in a closet under a mound of clothes, with his feet sticking out.

Another officer at thé scene advised Burnett that he. was under arrest and issued several commands for Burnett to exit the closet. Burnett refused, so Sgt. Ogil-vie and Officer Fortune grabbed Burnett by the cuff of his pants. Burnett kicked his legs, but the officers' eventually succeeded in pulling him out of the closet. Sgt.

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Cite This Page — Counsel Stack

Bluebook (online)
492 S.W.3d 646, 2016 Mo. App. LEXIS 630, 2016 WL 3437503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burnett-moctapp-2016.