State v. English

795 S.W.2d 610, 1990 Mo. App. LEXIS 1297, 1990 WL 125164
CourtMissouri Court of Appeals
DecidedAugust 28, 1990
Docket57196
StatusPublished
Cited by18 cases

This text of 795 S.W.2d 610 (State v. English) 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. English, 795 S.W.2d 610, 1990 Mo. App. LEXIS 1297, 1990 WL 125164 (Mo. Ct. App. 1990).

Opinion

SATZ, Presiding Judge.

Defendant John English appeals his conviction by a jury of murder, second degree, § 565.021 RSMo 1986. The trial court sentenced defendant to a prison term of twelve years. We affirm.

Only a brief recitation of the facts is necessary since, on appeal, defendant does not contest the sufficiency of the evidence supporting his conviction. The 18-year old victim, Fenton Bailey, lived with his family in a house owned and also occupied by defendant, who was 75 years old at the time of the murder. Defendant had instituted proceedings to evict the victim and his family from defendant’s house. On the day of the murder, the victim returned to defendant’s house by automobile. Defendant confronted the victim while the victim was still in the car. When the victim emerged from the car, the defendant shot and killed him.

On appeal, defendant, who is black, argues the trial court erred in denying his motion to quash the jury panel on the grounds that the prosecutor used his peremptory challenges to remove two black veniremen solely because of their race. *612 The state’s privilege to exercise peremptory challenges in a criminal case is subject to the dictates of the Equal Protection Clause of the Fourteenth Amendment, United States Constitution. Batson v. Kentucky, 476 U.S. 79, 90, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69, 83 (1986). “[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Id. The Missouri Supreme Court has directed our trial courts “to consider the prosecutor’s explanations as part of the process of determining whether a defendant has established a prima facie case of racially discriminatory use of peremptory challenges.” State v. Antwine, 743 S.W.2d 51, 64 (Mo. banc 1987). Defendant argues the trial court erred in denying his Batson motion without requiring the prosecutor to state neutral reasons for striking black veniremen. We do not address this contention on its merits because it has not been properly preserved for review.

In order to give trial courts the opportunity to correct their own mistakes, any alleged error must be pointedly objected to at trial. See State v. McBride, 685 S.W.2d 953, 955 (Mo.App.1985). Neither at trial nor in his motion for a new trial did defendant object to the denial of his Batson motion on the grounds that the trial court failed to require the prosecutor to explain the reasons for his peremptory challenges to the black veniremen. Both at trial and in his motion for a new trial, defendant made the general statement that the prosecutor had exhibited purposeful discrimination in the exercise of his peremptory challenges defendant now complains about an appeal. This did not alert the trial court to the error.

Aside from being insufficiently specific at trial, defendant’s contention, that the trial court erred in refusing to require the prosecutor to explain his peremptory strikes of black veniremen, was also untimely. Alleged trial error must be brought to the trial court’s attention at the earliest possible opportunity. State v. Newman, 699 S.W.2d 29, 32 (Mo.App.1985). The appropriate time to raise a Batson motion is “after the State has made, and before the defendant makes, peremptory strikes.” State v. Price, 763 S.W.2d 286, 289 N. 3 (Mo.App.1988). A Batson Motion is waived unless timely raised. State v. Smith, 791 S.W.2d 744, 747-748 (Mo.App. E.D., 1990); State v. Lawrence, 791 S.W.2d 729, 731 (Mo.App. E.D.1990).

As we have recently explained,

there simply is no justification for defense counsel to wait until the remaining venirepersons are discharged to challenge the state’s peremptory strikes. If defense counsel does wait until the ve-nire panel is discharged and the challenge is sustained, then the jury selection process must start anew, and an additional venire panel must be called. This simply delays justice, and, in those jurisdictions where an additional venire is not readily available, the delay can be substantial.

Smith, supra, at 747.

In the present case, defendant did not make his Batson motion until after the jury panel had been discharged. Defendant thereby waived his right to challenge the jury panel on Batson grounds.

Defendant has not requested that we review this point for plain error, as we are authorized, but not required, to do by Rule 30.20. We do so ex gratia. The record before us does not show the trial court committed plain error in denying defendant’s Batson motion.

Our courts have identified certain circumstances which generally make a claim of purposeful discrimination in the use of peremptory challenges implausible. For instance, a prosecutor may have little incentive to use his peremptory challenges for racist purposes when both the defendant and the victim are black. E.g., State v. Muhammad, 757 S.W.2d 641, 642 (Mo.App.1988). Similarly, a close correlation between the number of blacks on the jury panel and the petit jury also detracts from the credibility of a claim of purposeful discrimination by the prosecution. See, e.g. *613 State v. Vincent, 755 S.W.2d 400, 403 (Mo.App.1988).

In the present case, both defendant and victim were black, and the percentage of blacks on the jury panel, 4 of 27, or 14.8 percent, approximated the percentage of blacks on the petit jury, 2 of 12, or 16.6 percent. We therefore find no plain error in the trial court’s failure to require the prosecutor to explain why he peremptorily struck two black veniremen.

Defendant next contends that the trial court erred in excluding testimony from one of his witnesses, Ms. Evelyn Hanne-man. Defendant characterizes the excluded portion of this witness’ testimony as “negative evidence of [defendant’s] reputation.”

A criminal defendant may present evidence concerning his character from witnesses competent to testify to the defendant’s reputation in his community; a witness’ personal opinion about the defendant’s character is inadmissible. State v. Huffman, 607 S.W.2d 702, 704 (Mo.App.1980). Like any other witness, a reputation witness must have personal knowledge of the subject matter of his proposed testimony. State v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Strong v. State
263 S.W.3d 636 (Supreme Court of Missouri, 2008)
State v. Scurlock
998 S.W.2d 578 (Missouri Court of Appeals, 1999)
State v. Williams
976 S.W.2d 1 (Missouri Court of Appeals, 1998)
State v. Lopez
898 S.W.2d 563 (Missouri Court of Appeals, 1995)
State v. Zelinger
873 S.W.2d 656 (Missouri Court of Appeals, 1994)
State v. Wilson
868 P.2d 656 (New Mexico Court of Appeals, 1993)
State v. Parker
836 S.W.2d 930 (Supreme Court of Missouri, 1992)
State v. Cummings
838 S.W.2d 4 (Missouri Court of Appeals, 1992)
State v. White
835 S.W.2d 942 (Missouri Court of Appeals, 1992)
State v. Smith
831 S.W.2d 781 (Missouri Court of Appeals, 1992)
State v. Davis
830 S.W.2d 469 (Missouri Court of Appeals, 1992)
State v. McMahan
821 S.W.2d 110 (Missouri Court of Appeals, 1991)
State v. Johnson
476 N.W.2d 330 (Supreme Court of Iowa, 1991)
State v. Hudson
815 S.W.2d 430 (Missouri Court of Appeals, 1991)
State v. Starke
811 S.W.2d 799 (Missouri Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
795 S.W.2d 610, 1990 Mo. App. LEXIS 1297, 1990 WL 125164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-english-moctapp-1990.