State v. Thomas

780 S.W.2d 128, 1989 Mo. App. LEXIS 1617, 1989 WL 136721
CourtMissouri Court of Appeals
DecidedNovember 14, 1989
DocketNos. 54493, 55875
StatusPublished
Cited by9 cases

This text of 780 S.W.2d 128 (State v. Thomas) 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. Thomas, 780 S.W.2d 128, 1989 Mo. App. LEXIS 1617, 1989 WL 136721 (Mo. Ct. App. 1989).

Opinion

KAROHL, Judge.

We affirm the conviction and life sentence imposed after the jury convicted defendant of murder in the second degree and after the court adjudged defendant to be a prior and persistent offender. The grand jury indicted defendant, and others, on the charge of murder in the first degree in violation of § 565.020.1 RSMo 1986. The indictment alleged defendant and four others, deliberately and knowingly, caused the [130]*130death of Daryl Toran “by striking, stabbing, kicking and beating him with boards, a rifle, sticks, and fists.” The state waived the death penalty. The jury convicted defendant of the lesser included offense of murder in the second degree.

This appeal involves claims of error during the trial and a consolidated claim of error on defendant’s motion for post-conviction relief under Rule 29.15. We summarily dispose of and reject the post-conviction matter which addresses the adequacy of amended pleadings filed by motion counsel, a matter not cognizable under the rule. Allbritton v. State, 747 S.W.2d 687, 689 (Mo.App.1988). [Allbritton addressed inadequacy of counsel in a proceeding under former Rule 27.26]. The issues on direct appeal involve: (1) two challenges relying on Batson v. Kentucky; (2) error in overruling defendant’s motion to suppress defendant’s videotaped statement admitting involvement; (3) error in overruling defendant’s objections to parts of the state’s rebuttal argument where the state argued defendant fabricated testimony and told the jury they would have to explain an acquittal to their family and others after trial; and, (4) error in sustaining state’s objection during defendant’s closing argument where defendant’s trial counsel attempted to argue “a lot of people had been implicated that were never charged.”

There was an abundance of testimony, including defendant’s video statement, which supported the jury verdict. For purposes of deciding the issues presented by this appeal the following evidentiary facts are sufficient to permit an understanding of the decision of this court. In the early morning hours of August 2, 1986, defendant and seven others arrived at the home of Otis Washington. They dragged Daryl Toran from that house. They suspected that Toran was responsible for the shooting death of Antwonine Pickens, the brother of one of them. Some of the mob bludgeoned Toran to death. Toran was stabbed nine times, sustained multiple abrasions, contusions and bruises. Toran died of multiple blunt trauma and stab wounds to the head and chest. Thereafter, the mob went to the home of Pickens where defendant made a statement acknowledging his participation.

The Batson challenges implicate the following factual background. The parties began with a venire of forty. Six were eliminated for cause and of the remaining thirty-four venirepersons, four were black. From the first thirty each party exercised nine peremptory strikes resulting in a jury of twelve. The four remaining venireper-sons, all white, were used to seat two alternates after each party struck one. The state peremptorily excluded three black venirepersons. As a result, eleven white jurors and one black were selected to try defendant, a black man.

Defendant’s trial counsel moved to quash the jury panel pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court asked for and received explanations from the prosecutor regarding removal of Robinson, Simpson, and Woods by peremptory challenges exercised by the state.

In summary, the prosecutor gave the following explanations. The prosecutor observed that venireman Robinson sat through the proceeding with sunglasses on, was very inattentive, his expressions and responses indicated either total disinterest or disgust, and he was unemployed. The prosecutor concluded he was “a bit weird.” Regarding venireperson Ms. Simpson, the prosecutor detected she would have a problem with police officers’ credibility, at least on the issue of admissibility of defendant’s video statement. She explained she had bad experiences with police officers concerning her brother and her son and as a prior juror; and, although she expressed an ability to be fair, the prosecutor did not find those statements credible. Ms. Woods, the third challenged venireperson, was approximately the same age as defendant’s mother and was an endorsed witness for defendant. She lived in a rough neighborhood near where the murder occurred. The prosecutor believed Woods might, unfavorably to the state, associate personal experiences with defendant’s mother and the case.

[131]*131The court overruled defendant’s motion to quash the panel. It recognized the tendency of trial lawyers to rely on “instinct and gut reactions” in selecting a jury panel. It then made the following findings: “I can’t say that the reasons that [the prosecutor] has articulated are not substantial reasons. I cannot say that this is a case where he has stricken these prospective jurors solely out of race motivation.”

Defendant’s first claim of error is the prosecutor’s explanations failed to rebut a presumption of discrimination and the reasons given were merely pretextual and not legitimate because they were not supported by the record. There is no dispute defendant is black and the state struck three black venirepersons. We find the explanations are supported by the record. We reject the contention that merely because some of the observations regarding each stricken venireperson may have been equally valid as to other members of the venire who were not challenged, that this alone requires a finding the reasons were pretextual. The finding of the trial court is not, for that reason alone, unsupported by the record or clearly erroneous. The explanations are clear, reasonably specific and neutral. They satisfy the standard established in State v. Antwine, 743 S.W.2d 51, 63-67 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1987). Nothing in the record suggests the observations and conclusions drawn by the prosecutor regarding each black venireperson stricken by the state, are not supported by the record and therefore, merely pretextual. Further, on the present record, defense counsel was apparently satisfied with the explanations because no effort was made by the defense to demonstrate that the state’s explanations were merely pretextual, not the true reason for the use of the state’s peremptory challenges. In State v. Antwine, the Supreme Court assigned to defense counsel an obligation to demonstrate that explanations were pretextual. Id. at 64.

Defendant also complains that the court erred in failing to make findings or failing to make sufficient findings of no Batson v. Kentucky violation. We held in State v. Herron, 745 S.W.2d 835, 837 (Mo.App.1988) that trial courts are expected to make findings of fact or detailed explanations on the record of the basis for their determination as to whether the prosecutor engaged in purposeful discrimination in the selection of a jury panel as a prerequisite to any meaningful appellate review. In Herron, the trial court gave no explanation of its ruling denying a motion to quash the jury panel. Following Herron,

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Bluebook (online)
780 S.W.2d 128, 1989 Mo. App. LEXIS 1617, 1989 WL 136721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-moctapp-1989.