State v. Clark

407 S.W.3d 104, 2013 WL 4779590, 2013 Mo. App. LEXIS 836
CourtMissouri Court of Appeals
DecidedJuly 16, 2013
DocketNo. ED 98438
StatusPublished
Cited by5 cases

This text of 407 S.W.3d 104 (State v. Clark) 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. Clark, 407 S.W.3d 104, 2013 WL 4779590, 2013 Mo. App. LEXIS 836 (Mo. Ct. App. 2013).

Opinion

OPINION

ANGELA T. QUIGLESS, Judge.

Jerry F. Clark (“Defendant”) appeals the judgment entered upon a jury verdict convicting him of one count of stealing from a person and one count of second-degree assault. Defendant claims that the trial court erred in denying his Batson challenges to venirepersons Green and Moore. We affirm.

I. BACKGROUND

Defendant was charged with one count of second-degree robbery and one count of second-degree assault. The case proceeded to trial and the State made six peremptory strikes, at least four of which were African-American venirepersons. Following voir dire, Defendant objected to all four strikes on the basis of race pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court conducted a Batson hearing with respect to those jurors and denied the objections. Only two of those objections are at issue in this appeal: the objections to the peremptory strikes of Ms. Green, an African-American female, and Mr. Moore, an African-American male. The record does not indicate the final racial makeup of the jury. Defendant was convicted of stealing from a person, a lesser-included offense to second-degree robbery, and second-degree assault. Because Defendant does not contest the sufficiency of the evidence supporting his convictions, a full recitation of the facts pertaining to those convictions is unnecessary. Defendant appeals the court’s denial of his Bat-son challenges to venirepersons Green and Moore.

II. DISCUSSION

A. Standard of Review

Appellate courts will reverse trial court rulings on Batson challenges only if the ruling is clearly erroneous. State v. McFadden, 216 S.W.3d 678, 675 (Mo. banc 2007). A finding is clearly erroneous when the reviewing Court is left with the definite and firm impression that a mistake has been made. Id. In reviewing a trial court’s decision regarding a Batson challenge, the trial court is accorded great deference because its findings of fact largely depend on its evaluation of credibility and demeanor. Kesler-Ferguson v. Hy-Vee, Inc., 271 S.W.3d 556, 558 (Mo. banc 2008).

B. Procedure for Batson Challenges to Peremptory Strikes

The Missouri Supreme Court has set forth a three-part procedure to be followed when confronted with a timely Bat-son challenge. First, the defendant must raise the challenge with regard to one or more specific venirepersons struck by the State and identify the cognizable racial group to which the venirepersons belong. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992). Then, the State must proffer reasonably specific and clear race-neutral explanations for the strikes. Id. Finally, the defendant must show that the State’s proffered reasons for the strikes were pre-textual and that the strikes were racially motivated. Id. The existence of similarly-situated Caucasian jurors who were not struck by the State is probative of pretext. Id. at 940. While not dispositive, this factor is described as “crucial.” State v. Marlowe, 89 S.W.3d 464, 469 (Mo. banc 2002). Further factors considered in de[107]*107termining pretext include: (1) the “degree of logical relevance between the proffered explanation and the case to be tried;” (2) the prosecutor’s credibility based on statements made during voir dire and the court’s past experiences with the prosecutor; and (3) the demeanor of the excluded venirepersons. Id. at 469-70. The ultimate issue is whether Defendant has shown that the State’s reasons for striking the venireperson were pretextual.

C. The Trial Court Did Not Clearly Err in Denying Defendant’s Batson Challenge as to Venireperson Green

In his first point on appeal, Defendant argues that the trial court erred in denying his Batson challenge to the State’s peremptory strike of venireperson Green based on the existence of a similarly-situated Caucasian juror who was not struck. See Parker, 886 S.W.2d at 940. The State supported the peremptory strike of Green on the grounds that she was the victim of a house robbery only six months ago, was unhappy with the performance of the police in that situation, and had a cousin who was charged and arrested in an assault case within the last year. Defendant argues that Ms. Nasrallah, a Caucasian female, was a similarly-situated juror and was not included in the State’s peremptory strikes. Nasrallah had her home broken into twice in 2005, had been satisfied with the police performance in those cases, and had a close friend from high school that was convicted of murder eighteen years prior to the jury selection.

While a “per se rule that ... there [be] an exactly identical white juror would leave Batson inoperable,” Green and Nas-rallah were not sufficiently similarly-situated. Miller-El v. Dretke, 545 U.S. 231, 247 n. 6, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Green was a recent victim of a robbery with the crime fresh in her mind. Additionally, because Green was unhappy ■with the performance of law enforcement in her case, she could view the State’s case in an unfavorable light. In contrast, Nas-rallah was a victim to crimes more removed from the present and was satisfied with the law enforcement in those cases. The Missouri Supreme Court has noted that a “generally positive” attitude toward law enforcement is “usually favorable to the State’s position.” State v. McFadden, 191 S.W.3d 648, 657 (Mo. banc 2006). Further, Green had a family member who was convicted of a crime within the last year. This is unlike venireperson Nasrallah who knew of a non-relative that had been charged eighteen years prior. Having a family member in prison is a race-neutral reason for making a peremptory strike. State v. Cole, 71 S.W.3d 163, 173 (Mo. banc 2002). Accordingly, Green and Nasrallah were not similarly-situated in that Green had recently been the victim of a crime, was unhappy with the police performance in her case, and had & family member who had been convicted of a crime within the last year.

It is the defendant’s burden to show that the proffered reasons for the peremptory strike are “merely pretextual and that the strikes were racially motivated.” State v. Bateman, 318 S.W.3d 681, 689 (Mo. banc 2010) (quoting Parker, 836 S.W.2d at 939). Defendant failed to show that the State’s peremptory strike of Green was racially motivated. The trial court did not clearly err in denying Defendant’s Batson challenge as to Ms. Green. Point one is denied.

D. The Trial Court Did Not Clearly Err in Denying Defendant’s Batson Challenge as to Venireperson Moore

In his second and final point on appeal, Defendant argues that the trial [108]

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Bluebook (online)
407 S.W.3d 104, 2013 WL 4779590, 2013 Mo. App. LEXIS 836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clark-moctapp-2013.