State v. Meyers

832 S.W.2d 318, 1992 Mo. App. LEXIS 792, 1992 WL 103037
CourtMissouri Court of Appeals
DecidedMay 19, 1992
DocketNos. 56439, 57902
StatusPublished
Cited by2 cases

This text of 832 S.W.2d 318 (State v. Meyers) 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. Meyers, 832 S.W.2d 318, 1992 Mo. App. LEXIS 792, 1992 WL 103037 (Mo. Ct. App. 1992).

Opinions

KAROHL, Judge.

This court remanded State v. Meyers, 811 S.W.2d 400 (Mo.App.1991) to the circuit court for the purpose of re-examining defendant’s Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) challenge to the jury. We there held that defendant, a white man, had standing to make a Batson challenge on the authority of Powers v. Ohio, - U.S. -, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). We found remand necessary because the state offered no explanation of its peremptory strikes of black venire members after the court ruled Batson did not apply unless “all blacks have [been] eliminated by the exercise of all peremptory strikes on the part of the state.” Id. We reserved a decision on other appeal issues pertaining to denial of Rule 29.15 relief. On remand the court held a hearing, considered the state’s explanations and denied defendant’s challenge. That decision has been appealed.

We first consider whether the court erred in accepting the state’s explanations as a basis for finding peremptory strikes were racially neutral under Batson and State v. Antwine, 743 S.W.2d 51 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988), and cases following Antwine. This is the only issue on direct appeal from defendant’s conviction and sentence on the charge of illegal possession of cocaine. We will also consider other issues raised in the original appeal challenging denial of post conviction relief under Rule 29.15.

THE BATSON ISSUE

This case was tried to a jury consisting of seven white and five black jurors. The prosecutor exercised four of six peremptory challenges to strike black venirepersons. An alternate pool consisted of three venire-persons, two black and one white. The prosecutor struck a black; defense counsel a white. This resulted in a black alternate juror. The alternate apparently did not serve on the final jury. For this reason failure of the trial court to require explanations from the prosecutor on the peremptory strikes involving the alternates is irrelevant. Defendant was not prejudiced in that regard.

We adopt the brief statement of facts regarding the charge, the proof and the proceedings as reported in State v. Meyers, I. We consider the facts developed on remand in the context of those facts and focus on the issue of whether the court erred in overruling the Batson challenge after a hearing because the explanations for peremptory strikes of four jurors were pretextual.

Credibility is a matter for the trial court, Hernandez v. New York, - U.S. -, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 [320]*320(1991), and we review to determine whether the decision is clearly erroneous. State v. Griffin, 756 S.W.2d 475, 482 (Mo. banc 1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3175, 104 L.Ed.2d 1036 (1989). If the trial court’s decision is plausible in light of the record reviewed in its entirety this court may not reverse it even if it would have found differently had it been sitting as the trier of fact. Antwine, 743 S.W.2d at 66, citing Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).

The prosecutor struck black venire member Catherine Anderson for two reasons. First, she answered her nephew was on drugs three years before and later underwent rehabilitation when asked if there were any victims of crime on the panel. The prosecutor reasoned her attitude, that a drug user is a victim of crime, was not favorable for the state given that the charge here is drug possession. Second, she was employed as a nurse’s aid at the Veteran’s Administration Medical Center where defendant received treatment.

Defendant challenges the trial court’s acceptance of these explanations because: (1) a white venireperson, Sophie Rehagen, was acceptable to the prosecutor although she too had a nephew who at one time was in trouble due to the use of marijuana and underwent drug rehabilitation; and (2) ven-ireperson Anderson was a clerk, not a nurse, at the VA Hospital and the prosecutor omitted any voir dire regarding her employment as a hindrance to her ability to serve.

We find the prosecutor’s explanations reasonably specific and racially neutral. We have considered defendant’s arguments against approving the state’s choice to strike venireperson Anderson, in relation to other venirepersons and jurors regarding their race, their connection with a relative involved in the use of drugs, when that use occurred, the nature of their employment, and the other reasons put forth by the prosecutor. There was evidence from which the court could have found the explanation for striking venireperson Anderson pretextual. However, that finding is not compelled by the evidence. Peremptory strikes are by nature subjective; counsel is free to exercise challenges based on hunches when evaluating a venireper-son’s attitude. Batson 743 S.W.2d at 65. There was sufficient factual support for a finding the prosecutor’s decision was made for nonracial reasons. The prosecutor struck both venirepersons who worked at the VA Hospital. The two venirepersons who the prosecutor did not strike who had relatives using drugs did not also have some other factor raising concern with the prosecutor. Moreover, no other venireper-son with a relative who used drugs indicated the drug user was a victim of crime. This attitude together with venireperson Anderson’s suspect employment in relation to defendant was sufficient to support the finding of the trial court that the strike was not pretextual.

Defendant argues the prosecutor’s explanations for striking black venireperson Elizabeth Altman were pretextual. The explanations for the strike were that Altman believed a police officer was as likely to lie as any other witness and she was a teacher with the Board of Education. Although the connection between these explanations and the motive to strike may not be obvious, the explanations are not without meaning and clearly not racially based.

The prosecutor offered explanations for striking black venirepersons Pamela Mitchell and Wanda Brown. Defendant does not now argue these explanations were insufficient or pretextual.

Defendant alludes to the fact the court summarily decided the Batson issue at the time of the hearing which was insufficient to satisfy the requirement that the court “assess the entire milieu of the voir dire objectively and subjectively,” citing State v. Antwine, 743 S.W.2d 51, 65-66 (Mo. banc 1987). It is unnecessary to observe that the subject matter before the trial court was serious and important to both parties. This court has no reason to believe that the hearing before the trial court or its ruling was not carefully considered, irregular or suspect because the issues were decided quickly. On the contrary, in the absence of [321]*321a record to support the complaint we find the suggestion presumptuous.

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184 S.W.3d 624 (Missouri Court of Appeals, 2006)
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Bluebook (online)
832 S.W.2d 318, 1992 Mo. App. LEXIS 792, 1992 WL 103037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-meyers-moctapp-1992.