State v. McFadden

216 S.W.3d 673, 2007 Mo. LEXIS 40, 2007 WL 827422

• Court: Supreme Court of Missouri
• Decided: March 20, 2007
• Docket: SC 87753
• Status: Published

Opinions

PER CURIAM.

I.

A jury convicted Vincent McFadden of first-degree murder, armed criminal action, and witness tampering. McFadden was given the death penalty consistent with .the jury’s recommendation. This Court has exclusive jurisdiction pursuant to Mo. Const. art. V, sec. 3. Among his fourteen points of error, McFadden raises valid challenges under Batson v. Kentucky and Johnson v. Mississippi. The judgment is reversed, and the case is remanded.

II.

The facts, which this Court reviews in the light most favorable to the verdict,¹ indicate that, on May 15, 2003, McFadden shot and killed Leslie Addison and threatened Leslie’s sister, Eva, so that Eva would not testify against McFadden.

At trial, the State exercised five of its nine peremptory strikes to remove one Asian and four African-American venire-persons. The only remaining African-American was removed for hardship, leaving McFadden with an all-white jury. Defense counsel challenged the strikes under Batson v. Kentucky.2, The State attempted to justify the strikes with race-neutral explanations, which defense counsel argued were pretextual. The trial court denied McFadden’s Batson claims. The jury found McFadden guilty of all charges.

During the penalty phase, the State introduced evidence of McFadden’s convictions and death sentence in an unrelated case as aggravating factors supporting capital punishment in this case. The jury cited the earlier convictions as statutory aggravators and recommended a sentence of death. On May 16, 2006, this Court reversed those earlier convictions in State v. McFadden (McFadden I ).³ On May 24, 2006, the trial court in the present case sentenced McFadden to death plus 82 years imprisonment.

III.

This Court elaborated on the principles of Batson and its progeny in McFadden I. To summarize, racial discrimination in jury selection violates the Equal Protection Clause of the Constitution of the United States.⁴

A defendant can establish a pri-ma facie case of discriminatory jury selection by “the totality of the relevant facts” of the prosecutor’s behavior during the defendant’s trial.⁵ When the State provides a race-neutral reason for exercising a peremptory strike that is more than an unsubstantiated denial of discriminatory purpose, the defense must show that the State’s explanation is pretextual and the true reason for the strike is racial.⁶ The trial court’s findings on a Batson challenge will be set aside if they are clearly erroneous, meaning the reviewing court is left with the definite and firm conviction that a mistake has been made.⁷ This Court has such a conviction here.

McFadden challenges on Batson grounds the State’s exercise of peremptory strikes to remove two African-American women from the jury pool. The State claimed to remove venireperson D.C. because she participated in her church choir’s annual Christmas concert at a local prison workhouse. The State claimed to remove venireperson S.H. because she did not have a driver’s license, she had “crazy red hair,” and she seemed hostile. The Court finds a clear Batson violation in the State’s removal of S.H. for having red hair. This being dispositive, the Court does not opine on the removal of D.C.

The trial court rejected the State’s justification for removing S.H. for not having a driver’s license and for seeming hostile. The court found the lack of driver’s license irrelevant and perceived that S.H. was not hostile but merely exasperated by the State’s interrogation concerning the license. In response to the State’s justification for removal of S.H. because of her bright red hair,⁸ defense counsel explained that S.H.’s hair color, though perhaps uncommon among the prosecutor’s acquaintances, was quite fashionable in the African-American community. The trial court, sharing the prosecution’s unfamiliarity, agreed that the look “[made] her separate from the crowd, and very individualistic” and allowed the strike.

Normally, evidence of discrimination is established when the State’s reason for striking an African-American veni-reperson applies to an otherwise-similar member of another race who is permitted to serve.⁹ It does not appear that there was a white juror with distinctive hair, but an identical comparison is not necessary. “A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable.”¹⁰ In evaluating pretext, a trial court considers whether the explanation is (1) race-neutral, (2) related to the case to be tried, (3) clear and reasonably specific, and (4) legitimate.¹¹ The trial court’s “chief consideration should be the plausibility of the prosecutor’s explanations in light of the totality of the facts and circumstances surrounding the ease.”¹²

Applying the foregoing factors, first, whether the State’s explanation is race-neutral to begin with is dubious. The State relies on State v. Williams,¹³ where the prosecutor exercised a peremptory strike to remove an African-American ven-ireperson whose “earrings and clothing indicated that he was ‘trying to be different’ and was ‘liberal.’ ”¹⁴ This Court rejected that Batson challenge, finding that “striking a prospective juror based upon clothing and attire does not reflect an inherent racial bias.”¹⁵ Here, however, defense counsel refuted the State’s conclusion that S.H.’s hair color was crazy and noted that S.H. was neatly dressed. The Court acknowledges that peremptory strikes are subjective, and great reliance is placed on the trial court’s assessment of the legitimacy of the State’s explanation.¹⁶ In this case, however, the record suggests that the trial judge was initially inclined to sustain McFadden’s Batson challenges but then retreated. The Court’s deference to the trial court is not without limits. Viewing the totality of circumstances — the prosecution’s disdain for S.H.’s red hair, his scrutiny of her lack of driver’s license, and his misperception of her reaction as hostile — the prosecution’s subjective assumptions about S.H. are far from neutral.¹⁷

Second, the State fails to articulate how S.H.’s red hair, even if it were as unusual as the prosecution found it, was related to the case other than another conclusional inference that S.H. was individualistic. Here again, the State and the trial court presume to identify difference from a limited cultural view. “[P]otential jurors are not products of a set of cookie cutters,”¹⁸ nor should they be. Third, the State’s explanation was clear and specific, to wit, “crazy-looking red hair,” which renders clear the analysis of the fourth and fatal factor, legitimacy. The State’s justification for removing S.H. because of her hair color is not legitimate. In light of the totality of facts and circumstances, the Court finds the prosecution’s explanations implausible and merely a pretext to exercise a peremptory strike for racially discriminatory reasons. The trial court’s denial of the McFadden’s Batson challenge was clearly erroneous.

IV.

McFadden also asserts that the trial court erred in denying his motion for a new trial and sentencing him to death because the jury’s penalty recommendation was based partially on McFadden’s convictions and death sentence in an unrelated case that this Court reversed (McFadden I). As this issue may arise on retrial because the State argues the evidence is admissible as unadjudicated prior bad acts, it is necessary to address the issue in this case.

In April 2005, McFadden was convicted of murder and armed criminal action and received the death penalty in connection with the shooting death of Todd Franklin. In the present case, tried in March 2006, the State introduced McFadden’s convictions in the Franklin case as two of six aggravating factors for the jury to consider in deciding punishment. On May 16, 2006, this Court issued its opinion in McFadden /, where it reversed and remanded the Franklin case, thereby vacating McFadden’s convictions for murder and armed criminal action, as a result of five Batson violations by the same prosecutor who tried the present case. Despite this Court’s reversal of the Franklin convictions, which constituted one-third of the jury’s basis for recommending death in the present case, on May 24, the trial court followed the jury’s recommendation and sentenced McFadden to death. Because the jury’s recommendation in this case was based partly on factors that this Court nullified, the sentence cannot stand.

In Johnson v. Mississippi,19 the United States Supreme Court held that the reversal of a prior conviction that the jury considered in imposing the death penalty undermines the validity of the sentence. During sentencing in that case, the prosecution introduced evidence of the defendant’s prior felony conviction to persuade the jury to impose a death sentence, but the prior conviction was later vacated. The Supreme Court explained that “the reversal of the conviction deprive[d] the prosecutor’s ... evidence of any relevance to Mississippi’s sentencing decision.”²⁰ The decision to impose death cannot be based on factors irrelevant to the sentencing process.²¹

This Court examined the effect of a reversed prior conviction in State v. Sto-rey.22 There, a prior conviction was used to impeach the defendant’s credibility during the guilt phase of the trial. The conviction was subsequently reversed. The State conceded error. This Court held that the error was harmless because, among other reasons, the references were brief and not an attempt to develop a theme. Here, in contrast, the State’s evidence during the penalty phase regarding McFadden’s prior convictions and death sentence was voluminous, narrated in detail by witness testimony, and illustrated by over a dozen exhibits.

The State argues that Johnson does not mandate reversal here because, even if the Franklin convictions cannot now be used as statutory aggravators, the underlying Franklin facts presented by the State still carry weight as unadjudicated prior bad acts, i.e., non-statutory aggravating circumstances. The State cites Brown v. Sanders²³ in which the United States Supreme Court explained:

[A]n invalidated sentencing factor ... will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale ... unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.²⁴ (emphasis in original)

The Court rejects the State’s implication that the Franklin convictions and death sentence were not critical to the jury’s decision-making process. Of the six statutory factors on which the jury based its death penalty recommendation, only the two relating to the Franklin case involved a homicide. The other four involved assault and armed criminal action. The State implies that the jury’s recommendation would have been the same based on these four weaker remaining factors. “[W]hen the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death’s side of the scale.”²⁵ In Brown, the Supreme Court cautioned that “such skewing will occur, and give rise to constitutional error, only where the jury could not have given aggravating weight to the same facts and circumstances under the rubric of some other, valid sentencing factor.”²⁶ The State notes that the jury is not instructed to weigh statutory aggravators more heavily than non-statutory aggravators. But even if the prosecution’s evidence regarding the underlying facts of the Franklin homicide was properly admissible under the rubric of non-statutory aggravating prior bad acts, the Court cannot assume that the jury’s weighing process and sense of responsibility were unaffected by its knowledge that McFadden was already sentenced to death. A sentence resting on factors this Court deems invalid is equally invalid.

V.

Because the foregoing claims are dispos-itive, it is not necessary to address the remaining grounds for appeal. The judgment is reversed and the case is remanded.

WOLFF, C.J., LAURA DENVIR STITH, TEITELMAN, RUSSELL and WHITE, JJ., concur; LIMBAUGH, J., concurs in part and dissents in part in separate opinion filed; PRICE, J., concurs in opinion of LIMBAUGH, J.

1 . State v. Taylor, 134 S.W.3d 21, 24 (Mo. banc 2004).

2 . 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). As this Court cautioned in McFadden I, “racial discrimination in jury selection compromises the defendant’s right to a trial by an impartial jury.” Citing Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2323, 162 L.Ed.2d 196 (2005).

3 . State v. McFadden, 191 S.W.3d 648 (Mo. banc 2006).

4 . Strauder v. State, 100 U.S. [Otto] at 308, 25 L.Ed. 664; Miller-El, 125 S.Ct. at 2324; State v. Edwards, 116 S.W.3d 511, 524 (Mo. banc 2003); State v. Brown, 958 S.W.2d 553, 553 (Mo. banc 1997); State v. Parker, 836 S.W.2d 930, 933 (Mo. banc 1992).

5 . Batson, 476 U.S. at 94, 106 S.Ct. 1712. See also Miller-El, 125 S.Ct. at 2324; Parker, 836 S.W.2d at 933; State v. Antwine, 743 S.W.2d 51, 64 (Mo. banc 1987).

6 . Parker at 939.

7 . Edwards, 116 S.W.3d at 525; Antwine, 743 S.W.2d at 66.

8 . The State elaborated on the hair color describing it as "Ronald McDonald's hair. It looked like clown red hair. It tended more towards the orange side.”

9 . Miller-El, 125 S.Ct. at 2325; Edwards, 116 S.W.3d at 525; Antwine, 743 S.W.2d at 65.

10 . Miller-El, 125 S.Ct. at 2329, n. 6.

11 . Edwards, 116 S.W.3d at 511.

12 . Parker, 836 S.W.2d at 939. See also Miller-El, 125 S.Ct. at 2331; Edwards, 116 S.W.3d at 527; Antwine, 743 S.W.2d at 64.

13 . 97 S.W.3d 462 (Mo. banc 2003).

14 . Williams, 97 S.W.3d at 471.

15 . Id.

16 . State v. Morrow, 968 S.W.2d 100, 114 (Mo. banc. 1998).

17 . In further regard to the prosecution’s claim that S.H. was hostile, in McFadden I this Court noted that "vague references to attributes like demeanor ‘are largely irrelevant to one's ability to serve as a juror and expose venirepersons to peremptory strikes for no real reason except for their race.’ Accordingly, such vague references are heavily scrutinized.” (Citing Edwards, 116 S.W.3d at 550 (Teitelman, J., concurring).)

¹⁸

19 . 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988).

20 . Johnson, 486 U.S. at 585, 108 S.Ct. 1981.

²¹

22 . 986 S.W.2d 462 (Mo. banc 1999).

23 . 546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006).

24 . Brown v. Sanders, 126 S.Ct. at 892.

25 . Id. citing Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992).

²⁶