State v. Pickett

926 S.W.2d 872, 1996 Mo. App. LEXIS 1113, 1996 WL 351098
CourtMissouri Court of Appeals
DecidedJune 25, 1996
DocketNos. 64827, 67626
StatusPublished
Cited by2 cases

This text of 926 S.W.2d 872 (State v. Pickett) 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. Pickett, 926 S.W.2d 872, 1996 Mo. App. LEXIS 1113, 1996 WL 351098 (Mo. Ct. App. 1996).

Opinion

SIMON, Judge.

Appellant, Tommy Pickett, appeals from his conviction and sentences as a Class X offender, § 558.019 RSMo.1992 (all references shall be to RSMo.1992 unless otherwise indicated), of a life term for assault in the first degree, § 565.050, and a consecutive term of thirty years for burglary in the first degree, § 569.160, in the Circuit Court of the City of St. Louis.

On appeal, appellant contends that the trial court: (1) erred in overruling his Batson motion because the state’s offered explanation for striking a black venireperson was pretextual; (2) clearly erred in sentencing appellant as a Class X offender because the state’s evidence did not establish that all three prior convictions occurred at different times and places; and the motion court clearly erred in finding that his counsel was not ineffective for failing to object to appellant’s sentence as a Class X offender.

At trial, the evidence revealed that on June 25, 1992, appellant assaulted victim and burglarized his home. At the time, victim was an eighty-four year old man, living alone in the City of St. Louis. Late in the day, after missing a dinner engagement with him, one of his friends became concerned. The following morning, the police were called by his friend and sent to victim’s home and discovered him lying unconscious on the bed[873]*873room floor. The house had been ransacked. Appellant’s fingerprints were found on numerous surfaces in the house. Subsequently, appellant was arrested and confessed to the crime. Victim suffered permanent injuries from the attack and cannot live alone independently. A guardian has been appointed. At trial, victim had no recollection of the events in question.

At trial, appellant did not present any evidence. The jury returned guilty verdicts on both counts. The trial court, after finding appellant to be a Class X offender, sentenced him to life imprisonment for assault and a consecutive thirty year sentence for burglary. Appellant filed a Rule 29.15 motion, which the motion court denied after an evi-dentiary hearing. This consolidated appeal follows.

In his first point, appellant contends that the trial court clearly erred in overruling his Batson motion because the state’s explanations for striking a black venireper-son were pretextual.

After his Batson objection regarding the venireperson in question, the following exchange occurred:

[prosecutor] Michelle Evans, line 4.
THE COURT: The Court finds that she’s a black female. Go ahead.
[prosecutor] The thing that I notice about her is that she more or less avoided eye contact with me throughout my voir dire. She responded to the general questions I recall for hand raising but responded to nothing else.
THE COURT: The Court finds that’s sufficient non-raeial basis for striking that juror.

After further Batson objections, appellant attempted to cite reasons why the prosecutor’s reasons for striking the venireperson were pretextual, wherein the following exchange occurred:

[appellant] Judge, I do not agree with the reasons given by the prosecutor to remove the black jurors and the reasons are, I am requesting the Court—
THE COURT: I made specific findings on each juror stricken. I am not going to do no more.
[appellant] I need to state for the record. THE COURT: Are you making a motion I quash the panel, that’s denied. Now go make your strikes.

Appellant raised the denial of his Batson motion in his motion for new trial.

We recently discussed the procedure to be followed for a Batson challenge: (1) the defendant must raise the Batson challenge to one or more specific venirepersons struck by the state and identify the cognizable racial group to which such person belongs; (2) the state must then come forward with reasonably specific and clear race-neutral explanations for the strike; and (3) if the state provides such explanations, the defendant must then show that the state’s proffered reasons for the strike were merely pretextual and the strikes were racially motivated. State v. Dunn, 906 S.W.2d 388, 391 (Mo.App. E.D.1995); citing State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992). The trial court’s determination that there was no purposeful discrimination is a finding of fact which should not be disturbed on appeal unless clearly erroneous. Id. at n. 7.

We recently addressed this issue in State v. Phillips, slip op. No. 63423, — S.W.2d — (Mo.App.E.D. April 30, 1996). In Phillips, we found error where the trial court denied defendant’s Batson motion prior to allowing the defendant to make an offer of proof on the question of pretext. Id. at-. We stated that “[d]enying a Batson motion without allowing [defendant] an opportunity to carry his burden of proving purposeful discrimination constitutes trial court error.” Id.; see also Parker, 836 S.W.2d at 939; State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987); Purkett v. Elem, — U.S. —, —, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834, 838-40 (1995).

Here, the trial court erred in refusing to allow appellant to challenge the state’s explanations for the strike, as pretextual. When appellant requested to be heard on this issue, the trial court cut him off and stated that “it was going to do no more” and denied appel[874]*874lant’s Batson motion. Therefore, we must remand this case to the trial court for an evidentiary hearing on the issue and entry of an appropriate order. The trial court shall certify to this court a record of its proceedings and order.

In his second point, appellant contends that the trial court clearly erred in “upholding appellant’s sentence as a Class X offender since the state’s evidence did not establish that all 3 prior convictions upon which the state relied occurred at different times and places as required by Section 558.019.”

However, the state contends that because its evidence showed that appellant pled guilty on three different dates, the state introduced sufficient evidence whereby the trial court could sentence him as a Class X offender.

During the trial, the state produced evidence that appellant pled guilty on three separate dates to three felonies, specifically: (1) first degree robbery on September 8, 1981, for which appellant served approximately ten years in the Missouri Department of Corrections; (2) first degree robbery on July 16,1977; and (3) attempted first degree robbery and armed criminal action on July 18, 1977. The state did not produce any affirmative evidence regarding appellant’s prior pleas and sentences.

The trial court found appellant qualified as a Class X offender pursuant to § 558.019 in that he had pled guilty to three felonies at different times and had served in excess of 120 days in the Missouri Department of Corrections.

The charges for which appellant was prosecuted in this case occurred on or about June 26, 1992.

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

Related

State v. Pickett
973 S.W.2d 851 (Supreme Court of Missouri, 1998)
State v. Coleman
949 S.W.2d 137 (Missouri Court of Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
926 S.W.2d 872, 1996 Mo. App. LEXIS 1113, 1996 WL 351098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pickett-moctapp-1996.