State v. Higginbotham

765 S.W.2d 352, 1989 Mo. App. LEXIS 72, 1989 WL 4356
CourtMissouri Court of Appeals
DecidedJanuary 24, 1989
DocketNo. 54307
StatusPublished
Cited by3 cases

This text of 765 S.W.2d 352 (State v. Higginbotham) 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. Higginbotham, 765 S.W.2d 352, 1989 Mo. App. LEXIS 72, 1989 WL 4356 (Mo. Ct. App. 1989).

Opinion

GARY M. GAERTNER, Judge.

Defendant, Raymond Higginbotham, appeals his convictions by a jury for second degree murder, in violation of RSMo § 565.021 (1986), and for armed criminal action, in violation of RSMo § 571.015 (1986). He was sentenced to twenty-five years imprisonment for second degree murder and five years imprisonment for armed criminal action, to be served consecutively. Defendant alleges three claims of error on appeal. Defendant argues the trial court erred in finding that he failed to prove a prima facie case of purposeful discrimination under Batson in the State’s use of its peremptory challenges to the venire. Defendant also alleges the trial court erred in sustaining a challenge for cause requested by the State. Finally, defendant maintains the trial court erred in admitting rebuttal testimony offered by'the State. Finding defendant’s contentions to be without merit, we affirm.

The sufficiency of the evidence is not in dispute. Viewed in the light most favorable to the verdict, the evidence adduced at trial reveals the following: On October 4, 1986, at approximately 5:00 p.m. defendant went to the house where Steven Dupree resided; Dupree resided at the home of his girlfriend’s mother, Ms. Toler. Defendant spoke briefly with Ms. Toler and then left. He returned at approximately 9:00 p.m. and spoke with Dupree. After defendant left, Dupree told one of Ms. Toler’s daughters that Dupree had taken money that defendant owed Dupree. Defendant went to the house a third time with a rifle. He entered the kitchen, struggled with Dupree and fired two shots. Defendant stated, “Give me my money,” to which Dupree responded, “It’s in my back pocket.” The struggle continued into an adjacent bedroom where defendant pushed Dupree onto the bed. Defendant shot Dupree two more times. Defendant then ran from the house. Du-pree was pronounced dead upon arrival at a hospital.

On October 5, 1986, defendant surrendered to the police. He stated he had entered the house with a rifle after Dupree had taken his money and that he had shot Dupree twice in the kitchen. He indicated that Dupree had no weapon. Also on October 5, 1986, the police recovered the rifle used in the shootings at a location described by defendant. They also found an unloaded tear gas gun in the kitchen of the house where Dupree was murdered.

Defendant, Dupree and Bernard Toler, the brother of Dupree’s girlfriend, had been arrested several weeks prior to the murder for the robbery of Keith Swift. However, the three men were released because of insufficient evidence. The rob[354]*354bery led to defendant’s car being towed; Dupree paid $65.00 to obtain the release of defendant’s car. At trial, defendant denied involvement in the robbery. He called Keith Swift as a witness who testified defendant was not involved. The State then called Police Officer Lalumandier as a rebuttal witness regarding defendant’s involvement in the robbery. Further facts as to this testimony will be set forth when we discuss defendant’s third point.

At the conclusion of voir dire the State exercised six of its seven peremptory challenges to remove black venire panel members. The jury, as finally constituted, contained two black jurors and a black alternate. The trial court overruled defense counsel’s objection to the State’s use of its peremptory challenges to strike black ve-nire members, finding defendant had not proved a prima facie case as required by Batson.

In his first point, defendant claims that the trial court clearly erred in finding that he did not make a prima facie case of purposeful discrimination in the State’s use of its peremptory challenges. The United States Supreme Court in Batson sets forth the method by which a court is to determine whether a prosecutor exercised his peremptory challenges in a racially discriminatory manner. The Court’s analysis begins with a three part test to discern whether a prosecutor’s use of peremptory challenges creates a prima facie showing of purposeful discrimination. First, the defendant must show that he is a member of a cognizable racial group and that the prosecutor has exercised his peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant may rely on the fact that peremptory challenges constitute a jury selection practice which permits discrimination. And third, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used the practice of jury selection so as to discriminate on the basis of race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 at 1723, 90 L.Ed.2d 69 (1986). If a defendant makes a prima facie showing of purposeful discrimination, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Id. The Missouri Supreme Court in State v. Antwine, 743 S.W.2d 51, 64 (Mo. banc 1987), cert. denied, — U.S. -, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988), “expanded upon Batson by directing trial courts to consider, in the process of determining the existence of the third element of the prima facie case, the prosecutor’s explanations of his peremptory strikes.” State v. Griffin, 756 S.W.2d 475, 481 (Mo. banc 1988).

This court now takes cognizance of the standard of review to be applied to the trial court’s finding that defendant did not prove a prima facie case of purposeful discrimination. Initially, we note that such a finding is a finding of fact. State v. Brinkley, 753 S.W.2d 927, 930 (Mo. banc 1988). And, in a Batson context, because the trial court’s findings “largely will turn on [an] evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” Batson, 106 S.Ct. at 1724. Thus, the trial court’s finding in the case before us will not be set aside unless it is determined to be clearly erroneous. Antwine, 743 S.W.2d at 66.

In the present case, defendant satisfied the first two prongs of the Batson test for whether a prima facie case of purposeful discrimination has been made. Defendant is black and the State exercised six peremptory challenges against six black members of the venire. As well, defendant is entitled to the above-referred to presumption. Our inquiry is therefore restricted to the third prong of the test: whether these facts and any other relevant circumstances raise an inference of racial discrimination.

As previously noted, the Slate exercised six of its seven peremptory challenges to remove black persons from the venire; two black jurors and a black alternate were on the jury as finally constituted. The Missouri Supreme Court has declared, “that three blacks who could have been peremptorily struck by the State were not so stricken undercuts any inference of impermissible discrimination.” State v. Griffin, 756 S.W.2d at 482. The defen[355]*355dant, the victim, and the principal witnesses were black. Thus, the racial context of the case “discounts ‘any advantage that a discriminating prosecutor might perceive in striking blacks from the jury.’ ” Antwine, 743 S.W.2d at 67, quoting United States v. Mathews,

Related

STATE OF MISSOURI v. CHRIS RENN
453 S.W.3d 276 (Missouri Court of Appeals, 2014)
State v. Primers
971 S.W.2d 922 (Missouri Court of Appeals, 1998)
Higginbotham v. State
784 S.W.2d 267 (Missouri Court of Appeals, 1989)

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Bluebook (online)
765 S.W.2d 352, 1989 Mo. App. LEXIS 72, 1989 WL 4356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-higginbotham-moctapp-1989.