State v. Shaw

14 S.W.3d 77, 1999 Mo. App. LEXIS 2474, 1999 WL 1256204

• Court: Missouri Court of Appeals
• Decided: December 28, 1999
• Docket: 73907
• Status: Published

Opinions

CLIFFORD H. AHRENS, Judge.

Defendant, Phillip Shaw, appeals from a judgment on convictions of one count each of first-degree murder and armed criminal action. Defendant claims he was prejudiced by the following trial court errors: (1) admitting an inculpatory hearsay statement; (2) overruling his race and gender Batson objections; and (3) permitting the State to misdefine the term “deliberation” as an element of first-degree murder during closing arguments so as to lower its burden of proof on that element. We affirm.

On May 10, 1995, a group of friends was shooting craps in the basement of the residence at 8932 Blaine in urban St. Louis. The group included Eugene Perkins, Keith Macon, Castidel Wooten, and Shaw’s co-defendant at trial, Rodney Smith. Smith discussed a plan to rob an acquaintance, Toriano Burston, who was expected to join in the craps game later. Burston was known to wear much jewelry and carry cash on his person. Perkins and Wooten agreed to participate in the plan. Their role was to shoot craps with Burston while Smith was hiding. Smith would then emerge and rob Burston.

Burston eventually arrived at the craps game. Shortly thereafter, the group was told to leave the basement, whereupon they decided to relocate their game to a vacant house across the street at 3931 Blaine. At this point, Smith told Perkins he was going to get defendant to assist in the robbery. Perkins, Wooten, and Bur-ston continued the game in the vacant house, where they were joined by newcomers Aubrey Williams and William Ruffin.

Defendant and Smith entered the vacant house through a rear window. Defendant was armed with a .357 caliber handgun, Smith with a .44. Rather than attempting to rob Burston, the two defendants immediately began shooting at him. Burston sustained nine gunshot wounds to various parts of his body. He died from shots to the head and chest. Frank Stubitz, a firearms examiner for the City of St. Louis Police Department, testified that two, possibly three, bullets found in the victim’s body were fired from defendant’s gun.¹ When the police found Burston’s body, his shoes were missing and he was not wearing any jewelry.

Defendant was subsequently arrested and charged with one count of murder in the first degree (Count I), one count of robbery in the first degree (Count III), and two counts of armed criminal action (Counts II and IV, relating to the murder and robbery charges, respectively). Following a joint trial with Rodney Smith as a codefendant, a jury convicted defendant on Counts I and II and acquitted on Counts III and IV. Defendant was sentenced to life imprisonment without parole on Count I with a consecutive term of life without parole on Count II. This appeal followed.

Defendant first argues the trial court abused its discretion in admitting hearsay testimony over his objection. During the State’s examination of Eugene Perkins, it elicited testimony concerning Rodney Smith’s plan to rob the victim. When asked what, if anything, Smith said about defendant’s role in the planned robbery, Perkins responded “[Smith] said he was going to go get [defendant] to help him rob Toriano.” Because Smith elected not to testify at trial, as was his right under the Fifth Amendment, defendant claims Smith’s statement was hearsay, the admission of which violated his right to cross-examine witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, § 18(a) of the Missouri Constitution.²

A hearsay statement is an out-of-court statement offered to prove the truth of the matter asserted. State v. Sutherland, 989 S.W.2d 373, 376 (Mo. banc 1997), cert. denied, 522 U.S. 871, 118 S.Ct. 186, 139 L.Ed.2d 125 (1997). Hearsay statements are inadmissible unless they fall within a recognized exception to the hearsay rule. Id. The admission of a hearsay statement against a criminal defendant violates his or her Sixth Amendment right to confront adverse witnesses unless the statement falls within a firmly rooted exception to the hearsay rule or it contains particularized guarantees of trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66,100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); State v. Debler, 856 S.W.2d 641, 648 (Mo. banc 1993).

Smith’s out-of-court statement was hearsay because it was offered to prove the truth of the matter asserted, i.e., that defendant actually assisted in the murder of the victim. Missouri courts recognize an exception to the hearsay rule for statements of the declarant’s present state of mind.³ Missouri courts have held this exception allows the admission of a hearsay statement of the declarant’s present intention to engage in future conduct as proof the declarant acted in accordance with that intention, see, e.g., State v. Newman, 699 S.W.2d 29, 31 (Mo.App.1985), Lewis v. Lowe & Campbell Athletic Goods Co., 247 S.W.2d 800, 804-05 (Mo.1952), but have not decided whether it allows the same statement to be admitted as evidence of the future conduct of a third party. We need not decide this issue at this time, however, because even if admission of the statement was error, it was harmless error.

This court reviews for prejudice and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. State v. Richardson, 923 S.W.2d 301, 311 (Mo. banc 1996), cert. denied, 519 U.S. 972, 117 S.Ct. 403, 136 L.Ed.2d 317 (1996). At trial, the State presented two eyewitness accounts of the shooting, both of which identified defendant as one of the shooters. Such incriminating testimony negated any prejudicial effect the out-of-court statement may have had if it was, in fact, improperly admitted. Admission of the statement was, at most, harmless error. Point denied.

In defendant’s second point, he claims the trial court erred in overruling his “race Batson ” challenges⁴ to the State’s peremptory strikes of black venirepersons S.M. and D.W., and his “gender Batson” challenges⁵ to the State’s peremptory strikes of female venirepersons A.R. and D.M. Missouri courts use a three-step procedure when confronted with a purported Batson violation. The defendant must first raise a race or gender Batson challenge with regard to one or more specific venirepersons struck by the State. The State must then come forward with a reasonably specific and clear raee- or gender-neutral explanation for the strike. Finally, assuming the State’s explanation is acceptable, the defendant must demonstrate such explanation was merely pretextual and that the strikes were motivated by race or gender. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992).

In determining whether the defendant has proven purposeful discrimination, 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 case. Any facts or circumstances that detract from or lend credence to the State’s proffered explanations are relevant. Id. The trial court’s determination of the propriety of the strike will not be reversed unless it was clearly erroneous, that is, we are left with a firm conviction that a mistake was made. State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).

The State explained it struck S.M. because she was weak on punishment. When asked if she could vote to impose a sentence of fife imprisonment without parole, S.M. responded:

It would be a hard decision for me to make. I am not saying that I couldn’t do it.... You know, it would be a hard decision for me to send either one of them to jail for the rest of their life because the penal system is supposed to be there to help them better themselves and give them some kind of guidance and maybe even come out and have a better life. By them both being so young — I am still young myself and I know I wouldn’t want to go away for the rest of my life without being given a second chance, so it would be a difficult decision for me to make.

Defendant points out the State did not strike R.J., a white venireperson he claims was similarly situated to S.M. When asked if he could vote to impose a sentence of life without parole, R.J. responded “It would be hard, but I can do it.” The existence of similarly situated white venirepersons who were not struck by the prosecution is certainly probative of pretext. Parker, 836 S.W.2d at 940. However, R.J. was not necessarily similarly situated to S.M. Although both expressed concern about imposing the sentence sought, S.M.’s response was equivocal as to whether she could overcome her misgivings, whereas R.J. succinctly stated he could do so. These responses indicate S.M. was more hesitant about imposing the sentence sought than was R.J. This disparity lends credence to the State’s explanation that S.M. was weak on punishment. The trial court’s decision to allow the strike of S.M. was not clearly erroneous.

The State struck D.W. because he did not respond to questions concerning prior arrests and convictions when in fact he had been arrested for various offenses, one of which was a weapons-related felony. Defendant retorted that the State failed to strike T.F., a white venireperson, who also did not respond to the same question. T.F. had also been arrested on three occasions, albeit for misdemeanors. Because the trial involved the use of a deadly weapon, the State was more troubled by D.W.’s failure to disclose an arrest for a weapons-related offense than by T.F.’s failure to disclose a misdemeanor arrest. We will never know whether the State’s concern was provident, but the same can be said of every peremptory strike. The exercise of peremptory strikes is an art, not a science. “[T]he peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable” than the challenge for cause. Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Even in the wake of Batson and J.E.B., prosecutors remain free to “use horse sense” and “play hunches” in exercising peremptory challenges so long as the factors they rely on are race- and gender-neutral. Parker, 836 S.W.2d at 939 n. 8. The State could have reasonably expected D.W. to be biased toward defendant — either consciously or subconsciously — because of their similar criminal backgrounds. The trial court’s decision to allow the strike of D.W. was not clearly erroneous.

Defendant failed to preserve his gender Batson challenges for appellate review. To preserve a Batson challenge, a timely and specific objection must be made at trial, the alleged error must be asserted in a motion for new trial, and the matter must be adequately raised in the briefs on appeal. State v. Pullen, 843 S.W.2d 360, 364 (Mo. banc 1992), cert. denied, 510 U.S. 871, 114 S.Ct. 200, 126 L.Ed.2d 158 (1993). In the case at bar, defendant did not object to the peremptory strikes of A.R. or D.M. on the basis of gender in his motion for new trial. Such motion provided in relevant part (with emphasis added):

15. The trial court erred by refusing to sustain the defendant’s motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The state exercised peremptory strikes against the following black veniremen and the defense challenged the strikes with regard to those veniremen:

c. [D.M.], juror number 914, black female who the state believed would be overly sympathetic to the defendant because she was a teacher of children his age. The state failed to strike [N.F.], juror number 1528, a similarly situated white juror.

d. [A.R.], juror number 360, a black female whom the state mistakenly believed knew the defendant. The state had confused Ms. [R.] with another black female juror who knew the defendant ‘from the neighborhood.’ Upon being confronted with her mistake, the state then challenged Ms. [R.] by stating that she would identify with the defendant’s mother, a single parent. All of which was unsupported by the evidence. The juror was never questioned as to whether she was a single parent and other single parents were left on the panel by the state.

The quoted language raises a race Bat-son challenge. Defendant specifically claimed “[tjhe state exercised peremptory strikes against the following black veniremen ... [emphasis added]” but did not mention any errors regarding the exercise of peremptory strikes based on gender. This is especially true as to D.M., whom defendant argued was similarly situated to a white juror who was not struck. Although this white juror was male, defendant did not emphasize this fact, something we believe he would have done had he truly intended to raise a gender Batson challenge at that time rather than as an afterthought on appeal.

The dissent contends it is arguable that defendant preserved his gender Batson challenge as to D.M. in his motion for new trial. The dissent relies on the proposition that, where the trial court fully understands the defendant’s objection, the form of the motion is not fatal to appellate review. This is indeed the law. See State v. Starks, 834 S.W.2d 197, 198 n. 1 (Mo. banc 1992) (improper relief requested); State v. Winters, 949 S.W.2d 264, 266 (Mo.App.1997) (improper constitutional provision claimed to have been violated); State v. Seddens, 878 S.W.2d 89, 93 (Mo.App.1994) (improper relief requested). In the case at bar, however, what is at issue is not the form of the objection, but its substance. Although judges and lawyers generically refer to all equal protection violations resulting from the unconstitutional use of peremptory challenges as Batson violations, two distinct equal protection classifications are involved: race and gender. Batson addresses only impermissible strikes based upon race; J.E.B. v. Alabama ex reí T.B., on the other hand, addresses the gender counterpart. Therefore, a generic reference to Batson, without more, is insufficient to preserve a claim of error based upon a gender-motivated peremptory strike. This is especially true where, as here, the motion specifically references race but not gender. A defendant is not relieved of the obligation to preserve for review claims of error by appropriate means merely because a co-defendant claims the same error.⁶

Failure to include a claim of error in a motion for new trial does not preserve that claim for review. Rule 29.11(d); Pullen, 843 S.W.2d at 362. We decline to review for plain error because the “failure to make a timely Batson objection is fatal to such a claim.” State v. Gray, 887 S.W.2d 369, 385 (Mo. banc 1994), cert. denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995). See also State v. Taylor, 944 S.W.2d 925, 934 (Mo. banc 1997), and State v. Sutherland, 859 S.W.2d 801, 803 (Mo.App.1993), for other cases declining to give plain error review of an unpreserved Batson challenge.⁷

Even if plain error review was appropriate, we would find none. The benchmark of plain error is prejudicial error which so substantially affects the rights of an accused that manifest injustice or a miscarriage of justice inexorably results if left uncorrected. State v. Miller, 604 S.W.2d 702, 706 (Mo.App.1980) (citing Rule 30.20). Unfortunately, no talismanic method exists for determining plain error. It is a unique and elusive concept that lacks a fixed dimension, leaving determinations of its existence to be made on a case by case basis so that its scales can be rebalanced each time against particular facts and circumstances. Id. at 706. However, Missouri courts have consistently held that no manifest injustice or miscarriage of justice results when guilt is established by overwhelming evidence. See, e.g., State v. Jordan, 627 S.W.2d 290, 293 (Mo. banc 1982); State v. Hurtt, 509 S.W.2d 14, 15 (Mo.1974); State v. Pembleton, 978 S.W.2d 352, 354 (Mo.App.1998).

As emphasized in our analysis of defendant’s first point of error, two witnesses identified defendant at trial as one of Tori-ano Burston’s killers. Although defendant’s counsel attempted to undermine the credibility of these witnesses, their testimony was not contradicted by other evidence. In light of the severely incriminating nature of this testimony, there is no reason to believe D.M. or another panel of jurors would have viewed the evidence differently than the twelve that convicted defendant. We find no manifest injustice or miscarriage of justice.

The dissent argues it is manifestly unjust to reverse the conviction of one co-defendant (Rodney Smith) and not the other (Philip Shaw) when the same error affected both. Although this position has not been adopted by either the United States Supreme Court or the Missouri Supreme Court, the dissent finds support in three Ninth Circuit cases and one Seventh Circuit case: United States v. Baker, 999 F.2d 412 (9th Cir.1993), United States v. Ullah, 976 F.2d 509 (9th Cir.1992), United States v. Olano, 934 F.2d 1425 (9th Cir.1991), and United States v. Bailey, 859 F.2d 1265 (7th Cir.1988). These cases are materially distinguishable from the case at bar and are therefore unpersuasive.

Both Ullah and Olano involve errors in the jury-deliberation process. In Olano, the trial court permitted the two alternate jurors to be present during deliberations in violation of Federal Rule of Criminal Procedure 24(c). In Ullah, the trial court not only allowed the alternate jurors to be present during deliberations, it allowed them to vote as well, and convicted the two defendants on a verdict which was not unanimous among the twelve regular jurors.⁸ In each of these cases, neither defendant preserved his claim of error by proper objection at trial or in a motion for new trial, and only one defendant raised the claim of error in his appellate brief.

In each case, the Ninth Circuit found the trial court to have committed plain error and reversed the convictions of both defendants despite the fact that only one briefed the issue. The court held that if an error is plain error as to one defendant, it is plain error to both defendants, such that it would be manifestly unjust to reverse the conviction of the former but not the latter. See Ullah, 976 F.2d at 511-14; Olano, 934 F.2d at 1436-39. Because Shaw’s co-defendant preserved his claim of error in the present case, this court is confronted with an entirely different issue than that presented to the Ninth Circuit in Ullah and Olano. The analyses in those cases are therefore inapplicable.

In Bailey, two defendants were convicted on insufficient evidence but only one preserved the issue for appeal. The Seventh Circuit held that, where there is insufficient evidence to convict one defendant, it is plain error not to reverse the conviction of a co-defendant whose conviction was based on the same insufficient evidence. See Bailey, 859 F.2d at 1273. This is also the law in Missouri. See State v. McClunie, 438 S.W.2d 267, 268 (Mo.1969) (“[I]f evidence is not sufficient to sustain the conviction, plain error affecting a substantial right is involved from which manifest injustice must have resulted.”). See also State v. Nations, 676 S.W.2d 282, 283 (Mo.App.1984).⁹ In the case at bar, however, the sufficiency of the evidence upon which defendant Shaw was convicted is not an issue — there was overwhelming evidence of his guilt, thereby precluding any manifest injustice. See Jordan, 627 S.W.2d at 293 (“When guilt is established by overwhelming evidence no injustice or miscarriage of justice will result from the refusal to invoke the [plain error] rule.”).

Finally, in Baker, the Ninth Circuit found that the due process rights of the defendants were violated by the prosecutor’s improper comments during closing arguments on their post-arrest silence. The claim of error was preserved by one co-defendant but not the other. The court reversed the convictions of both defendants, finding it manifestly unjust to reverse only the conviction of the defendant who preserved his claim of error when the same error affected both. See id. at 413-416. What distinguishes Baker from the present case is that the court found the government’s case to be weak and entirely based on circumstantial evidence. The court specifically noted that no witness had identified the defendants as the perpetrators. See Baker, 999 F.2d at 416. This is in direct contrast with the instant case where the government’s case was overwhelming, largely due to the testimony of two witnesses who observed defendant shoot the victim.

In defendant’s final point, he argues the trial court committed plain error when it permitted the State to purportedly misdefine the term “deliberation,” an element of first-degree murder, during closing argument.¹⁰ In her summation, the prosecutor recounted the actions of the defendants leading up to the shooting. In doing so, she repeatedly noted several points in time at which they could have elected not to proceed with the crime. For example, “[a]t any point in time he had the option of what? Taking the gun off his hip and not going to the vacant house.” The prosecutor then explained the defendants’ decision to commit the crime despite having several opportunities to reconsider constituted deliberation. Defendant claims this explanation amounted to an incorrect definition of that term such that the State’s burden of proof on this element was reduced, thereby depriving him of due process and a fair trial. Defendant acknowledges this claim of error is raised for the first time on appeal and likewise requests review for plain error.

“Deliberation” means “cool reflection for any length of time no matter how brief.” Section 565.002(3) RSMo (1994). Thus, deliberation does not require proof the defendant contemplated his actions for a long period of time, and it may be implied from the circumstances. State v. Ervin, 979 S.W.2d 149, 159 (Mo. banc 1998), cert. denied, 525 U.S. 1169, 119 S.Ct. 1090, 143 L.Ed.2d 91 (1999). Deliberation may be properly inferred where the defendant had ample opportunity to terminate the crime as well as where the victim sustained multiple wounds or repeated blows. Id. Here, the State was simply urging the jury to infer deliberation from similar facts present in this case. We find no error in the prosecutor’s argument, plain or otherwise.

The judgment of the trial court is affirmed.

RICHARD B. TEITELMAN, P.J., dissents in separate opinion. LAWRENCE E. MOONEY, J., concurs.

1 . Frank Stubitz positively identified two of the bullets removed from the victim’s body as being .38 caliber. A third bullet was too damaged to be positively identifed, but Stu-bitz believed it was also a .38. A .38 caliber bullet may be fired from a .357 caliber handgun, the weapon used by defendant, but not from a .44, the weapon used by Rodney Smith.

2 . The right of cross-examination is included in an accused’s right to confront witnesses against him or her. Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). In Pointer, the United States Supreme Court held this right to be fundamental and therefore obligatory on the States through the Fourteenth Amendment. Id. at 403.

3 . Both parties agree, as does this court, the statement was not admissible under the co-conspirator exception because it was made prior to the formation of any conspiracy. See State v. Chemick, 280 S.W.2d 56, 60 (Mo. banc 1955).

4 . In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held a criminal defendant’s equal protection rights are violated when a prosecutor exercises peremptory strikes to remove potential jurors from the venire solely because of their race or on the assumption their race will disable them from impartially considering the State’s case.

5 . In J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the United States Supreme Court extended the Batson doctrine to prohibit the State’s use of peremptory challenges to remove potential jurors solely on the basis of gender.

6 . The conviction of Shaw’s co-defendant, Rodney Smith, was reversed by this court on a finding that the State's strike of D.M. was gender-motivated. Rodney Smith properly preserved this matter for appellate review, however. See State v. Smith, 1999 WL 828083 (Oct. 19, 1999).

7 . The Missouri Supreme Court addressed the issue of plain error review of unpreserved Batson challenges in State v. Sutherland, 939 S.W.2d 373 (Mo. banc 1997) ("Roy Sutherland ”). There, the Court conducted a plain error review of the defendant's Batson challenge but found none. Id. at 380. However, the Court's plain error review was expressly conditioned on the assumption such a review was warranted. Id. at 379 n. 1. The Court specifically stated its opinion did not address the issue of whether plain error review must be given in light of this court’s declination to do so in the unrelated case of State v. Sutherland, 859 S.W.2d 801 (Mo.App.1993) ("Arlando Sutherland ”). Therefore, we continue to adhere to Arlando Sutherland. See State v. Bennett, 907 S.W.2d 374, 377 (Mo.App.1995), . State v. Childs, 876 S.W.2d 781, 784 (Mo.App.\994), and State v. Tims, 865 S.W.2d 881, 884 (Mo.App.1993), for cases where this court has specifically followed Arlando Sutherland. See also State v. Shelton, 871 S.W.2d 598, 599 (Mo.App.1994), State v. Tankins, 865 S.W.2d 848, 853 (Mo.App.1993), and State v. Williams, 861 S.W.2d 670, 673 (Mo.App.1993), for decisions of this court that decline plain error review of an unpreserved Batson challenge but do not specifically reference Arlando Sutherland.

8 . Ten regular jurors and the two alternate jurors voted to convict, while the two remaining regular jurors voted to acquit. See Ulldh, 976 F.2d at 511.

9 . McClunie and Nations rely on former Rule 27.20(c), which is substantially the same as current Rule 29.12(b) which states: "Plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” See Committe Note accompanying Rule 29.12. Rule 29.12(b) is essentially the same as current Rule 30.20, which specifies that claims of error not properly briefed shall not be considered on appeal unless the error amounts to plain error, which is defined in the identical language as in Rule 29.12(b). The Missouri Supreme Court has never explicitly explained the relationship between these two provisions, but rather has cited to both when discussing plain error review. See, e.g., State v. Knese, 985 S.W.2d 759, 770 (Mo.1999). The Southern District of this court has explained, perhaps properly so, that Rule 30.20 authorizes plain error review by the appellate courts while Rule 29.12(b) authorizes plain error review by trial courts when considering motions for new trial. See State v. Donnell, 849 S.W.2d 733, 738 (Mo.App.1993).

10 . Section 565.020.1 RSMo (1994) sets forth the crime of first-degree murder: "A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation on the matter.”