State v. Dunn

906 S.W.2d 388, 1995 Mo. App. LEXIS 1541, 1995 WL 534947
Missouri Court of Appeals·Decided September 12, 1995·No. No. 60805·Published·Cited by 7 cases

Opinion

CRANE, Chief Judge.

Defendant Christopher Dunn was convicted and sentenced on charges of first degree murder, two counts of first degree assault, and three counts of armed criminal action. At trial the state used its six peremptory strikes to strike one of two African-American venirepersons and five white venirepersons. The defense made a Batson1 motion which the trial court overruled without requesting the state to give reasons for its strike.

Defendant appealed from the trial court’s judgment and from the motion court’s denial of his 29.15 motion for post-conviction relief. Pursuant to State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992), cert. denied, 506 U.S. -, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992), we remanded to the trial court for an eviden-tiary hearing on the Batson motion to determine whether the prosecutor exercised his peremptory strikes in a racially discriminatory manner. State v. Dunn, 889 S.W.2d 65, 69 (Mo.App.1994). We denied all other points defendant raised on appeal from the trial court and affirmed the judgment of the motion court. Id.

On March 9,1995 the trial court conducted an evidentiary hearing and subsequently denied the Batson motion. The parties filed supplemental briefs in this court addressing the trial court’s rejection of the Batson claim. We now affirm the judgment of the trial court.

In his supplemental brief, defendant asserts the trial court clearly erred in overruling his motion to quash the jury panel. Defendant argues the state’s explanations for its strike of venireperson Ronald Lee Jackson, an African-American, were pretextual because the state did not articulate specific race-neutral reasons for the strike and did not strike two similarly situated white venire-persons.

During voir dire Jackson said he had been with the Prejudice Awareness and Reduction Project and had met assistant public defender Cathy Kelly when he was conducting training for attorneys with the Missouri public defender system. He did not recall if defendant’s counsel, who was also an assistant public defender, was also in one of his workshops. Jackson also said that he had a brother-in-law who had been arrested for stealing and placed on probation. Jackson further reported that he went to graduate school with fellow venireperson Cynthia Compton.

Also during voir dire venireperson Compton confirmed that she knew Jackson. She also said she knew the St. Loins circuit attorney from fund raisers, was director of the [390] Community Support Program which had clients who had contact with the criminal justice system as defendants or victims, had previously been a witness, and had served on civil juries. Two white venirepersons advised that they also knew persons in a public defender’s office. Another white venireper-son related that her ex-husband had been arrested for, but not convicted of, child abuse, and another white venireperson reported that his brother had been questioned about a crime.

The state used its peremptory strikes to strike Jackson and five white venirepersons, including Compton and the two who reported knowing people in a public defender’s office. Defense counsel made a Batson motion, noting that there were only two African-American venirepersons and the state struck one of them. The court was advised that the three victims in the case were African-American and the main homicide investigator on the case was also African-American.

At the hearing after remand, the state called a former prosecutor, who had been the prosecutor at defendant’s trial, to testify. The former prosecutor offered three reasons for his peremptory strike of venireperson Jackson: (1) Jackson had met Cathy Kelly, an assistant public defender who worked for the City of St. Louis, through a workshop, (2) Jackson had a brother-in-law who had been arrested and placed on probation for stealing, and (3) Jackson had gone to school with Cynthia Compton, another venireperson, whom the prosecutor also struck from the panel. He placed the most emphasis on Jackson’s connection with Kelly. The former prosecutor testified that he did not strike two white venirepersons who had relatives with prior law enforcement encounters because he believed that the arrest of the one venireper-son’s former husband for child abuse would be favorable to the state and the other’s brother was never charged with a crime, and had not pleaded guilty or been placed on probation.

After the former prosecutor gave his reasons, defense counsel responded that Jackson’s acquaintance with assistant public defender Kelly would not affect his ability to be a good juror since Kelly was not involved in the trial. Defense counsel asserted that the fact that Jackson knew another venireperson did not bear on Jackson’s qualifications. Defense counsel also argued that the fact that Jackson’s brother-in-law had been placed on probation did not involve Jackson personally and that two white venirepersons who had relatives with law enforcement encounters were left on the panel.

The trial court denied the motion and issued written findings of fact. It addressed each of the three reasons proffered by the state. It found each of the state’s explanations reasonably specific and race-neutral. It further found that defendant failed to meet its burden of showing that the state’s proffered reasons were pretextual and that the strikes were in fact racially motivated. Specifically, the court found that Jackson’s acquaintance with Kelly was an appropriate factor for the state to consider in exercising its peremptory strikes. It did not find that the two white venirepersons were similarly situated, because the state considered the arrest of the one venireperson’s ex-husband to be favorable to the state and the other venireperson’s brother was only questioned; he was not charged or placed on probation. It found that the state also struck Compton, the white venireperson who had gone to school with Jackson.

In Parker, our supreme court enunciated the procedure to be followed in addressing a Batson challenge: (1) the defendant must raise a Batson challenge “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 state must then “come forward with reasonably specific and clear race-neutral explanations for the strike;”2 and (3) if the state provides such explanations, the de[391] fendant must then “show that the state’s proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated.” Parker, 836 S.W.2d at 939; State v. Daniels, 865 S.W.2d 400, 402 (Mo.App.1993). See also Purkett v. Elem, 514 U.S. -, -, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834, 838-40 (1995), reh’g denied, — U.S. -, 115 S.Ct. 2635, 132 L.Ed.2d 874 (1995).

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State v. Dunn, 906 S.W.2d 388, 1995 Mo. App. LEXIS 1541, 1995 WL 534947 (Mo. Ct. App. 1995).

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