State v. Smith

791 S.W.2d 744, 1990 Mo. App. LEXIS 647, 1990 WL 50885
CourtMissouri Court of Appeals
DecidedApril 24, 1990
Docket54711, 56340
StatusPublished
Cited by20 cases

This text of 791 S.W.2d 744 (State v. Smith) 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. Smith, 791 S.W.2d 744, 1990 Mo. App. LEXIS 647, 1990 WL 50885 (Mo. Ct. App. 1990).

Opinions

SATZ, Presiding Judge.

Defendant, Ms. Vanessa Smith, was convicted by a jury of second degree murder, § 565.021 RSMo 1986, armed criminal action, § 571.015 RSMo 1986, and unlawful use of a weapon, § 571.030 RSMo 1985. Defendant was sentenced to life imprisonment on the murder charge and to two terms of imprisonment of five years each on the remaining charges, one five year term to be served consecutive to the life term and the other five year term to be served concurrently.

In her direct appeal, defendant challenges the prosecutor’s use of peremptory strikes and also challenges the admission of evidence of a prior assault by defendant against the same victim. Consolidated with this direct appeal is defendant’s appeal from the denial of her Rule 29.15 post-conviction motion. We affirm.

One night in 1987, the victim, Mr. Eddy Jones, was with Ms. Carlene Liggins in the Polynesian Room of the Carousel Motel. As Mr. Jones and Ms. Liggins prepared to leave, Ms. Liggins saw defendant sitting behind them. Mr. Jones had told Ms. Lig-gins about a prior relationship he had had with defendant, and Ms. Liggins recognized defendant. Defendant approached Mr. Jones and asked him for a ride home. He refused and a quarrel between the two followed. The three went outside the motel, then defendant and Mr. Jones went back inside. Ms. Liggins waited outside.

Inside the lobby of the motel, several witnesses saw or heard defendant and Mr. Jones enter the lobby quarrelling and also saw or heard defendant shoot Mr. Jones twice. Two of the witnesses heard defendant say: “I told you I would kill you”. Defendant fled the scene and subsequently was arrested and charged.

I

Defendant first contends the court erred in admitting into evidence testimony that defendant had previously shot at the victim, Mr. Jones. A state’s witness testified that, on January 24, 1987, some six months before the shooting incident in issue here, defendant had shot at Mr. Jones.

The fact defendant previously shot at Mr. Jones is relevant to show her culpable mental state in shooting him in the present incident. State v. Kenley, 693 S.W.2d 79, 81-82 (Mo.banc 1985), cert. den. 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). [747]*747Defendant, however, argues the prior shooting incident was too remote in time, and, therefore, the prejudice worked by the admission into evidence of the uncharged crime of shooting outweighed its probative value. We disagree.

The trial court has discretion in balancing the possible prejudice against probative value. The shooting at another human being is an incident, fortunately, still considered a deviation from the norm. Sensibly considered, a great deal of time is necessary to wash the causes of a prior shooting from the mind of the perpetrator. Without more, six months is not an unusual length of time for a prior shooting to be relevant to a present intent to shoot. The trial court was well within its discretion in permitting the admission into evidence of the prior shooting to show defendant’s culpable mental state. See State v. Johnson, 349 Mo. 910, 163 S.W.2d 780, 783 (1942).

II

Defendant also challenges as error the trial court’s refusal “to quash the jury”. Defendant argues that the prosecutor struck prospective jurors because of their race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and State v. Antwine, 743 S.W.2d 51 (Mo.banc 1987), cert. den. 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).

The state counters by arguing that defendant failed to preserve this point for review because she did not object to the juror strikes until after the jury had been sworn. We agree.

In State v. Price, 763 S.W.2d 286, 289, fn. 3 (Mo.App.1988), this Court said that since a Batson claim is directed against the state striking venirepersons because of race

the better time to raise the [claim] would be after the State has made, and before the defendant makes, peremptory strikes.
By so doing, if the State has made an improper strike, the trial court could disallow it. The State could then strike another venireperson to complete its peremptory strikes. In this manner, the entire jury panel would not be lost and judicial time would be maximized. Also, defense counsel could still make the defendant’s strikes following those of the State, as required by § 546.180.3 RSMo 1986.

This makes good sense.

Then, in State v. Lawrence, 785 S.W.2d 749, 751-752 (E.D.Mo.App.1990), this Court held the defendant “effectively waived his right to challenge the jury panel” when the defendant failed to challenge the peremptory strikes until after the jury was selected, both counsel had agreed that it was the jury they had selected and the court had discharged the remaining venirepersons. This also makes good sense.

There simply is no justification for defense counsel to wait until the remaining venirepersons are discharged to challenge the state’s peremptory strikes. If defense counsel does wait until the venire panel is discharged and the challenge is sustained, then the jury selection process must start anew, and an additional venire panel must be called. This simply delays justice, and, in those jurisdictions where an additional venire panel is not readily available, the delay can be substantial.

More important, in the present case, defense counsel, apparently, not only waited until the venire panel was discharged, she waited until after the jury was sworn to make her Batson challenge. The defendant was thus in jeopardy. If the defendant’s challenges were then sustained, the state’s action supporting that ruling, arguably, could be characterized as prosecutorial misconduct. It would be this misconduct which, in turn, would require a mistrial to be granted. A mistrial caused by the state may preclude the defendant from again being put into jeopardy. See, e.g. State v. Fitzpatrick, 676 S.W.2d 831, 835 (Mo.banc 1984). This result may not always be certain to occur. The risk is great enough, however, to require defense counsel to challenge the state’s peremptory strikes prior to the jury being sworn and prior to the remaining venirepersons being dis[748]*748charged. Therefore, we hold defendant’s Batson challenges were untimely, and the trial court’s denial of those challenges was proper.

Ill

Nonetheless, we consider defendant’s Batson challenges ex gratia. Batson

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

Related

State of Iowa v. Matthew Paul Ford
Court of Appeals of Iowa, 2023
State v. Edwards
116 S.W.3d 511 (Supreme Court of Missouri, 2003)
State v. Kennedy
107 S.W.3d 306 (Missouri Court of Appeals, 2003)
Edmonds v. State
812 A.2d 1034 (Court of Appeals of Maryland, 2002)
State v. Mosely
873 S.W.2d 879 (Missouri Court of Appeals, 1994)
State v. Williams
865 S.W.2d 794 (Missouri Court of Appeals, 1993)
State v. Wilson
868 P.2d 656 (New Mexico Court of Appeals, 1993)
State v. Harris
842 S.W.2d 953 (Missouri Court of Appeals, 1992)
State v. Goldsby
845 S.W.2d 636 (Missouri Court of Appeals, 1992)
State v. Parker
836 S.W.2d 930 (Supreme Court of Missouri, 1992)
State v. Cummings
838 S.W.2d 4 (Missouri Court of Appeals, 1992)
State v. Davis
830 S.W.2d 469 (Missouri Court of Appeals, 1992)
State v. Hudson
822 S.W.2d 477 (Missouri Court of Appeals, 1991)
State v. Starks
820 S.W.2d 527 (Missouri Court of Appeals, 1991)
State v. Robinson
811 S.W.2d 460 (Missouri Court of Appeals, 1991)
State v. English
795 S.W.2d 610 (Missouri Court of Appeals, 1990)
State v. Smith
791 S.W.2d 744 (Missouri Court of Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
791 S.W.2d 744, 1990 Mo. App. LEXIS 647, 1990 WL 50885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-moctapp-1990.