State v. Thompson

697 S.W.2d 575, 1985 Mo. App. LEXIS 4199
Missouri Court of Appeals·Decided September 10, 1985·No. No. WD 36432·Published·Cited by 5 cases

Opinion

NUGENT, Judge.

The defendant, Michael Thompson, appeals his conviction for robbery in the second degree. He complains of errors in cross-examination and of the trial court’s failure to quash the jury panel on the basis of the prosecution’s misuse of its peremptory strikes of all black persons from the venire. We affirm his conviction.

At midday on December 28, 1983, James Leake and his band members were at the Stage Door Lounge loading their equipment into several cars when defendant Thompson approached the band and asked them where they had been playing. He then suggested that he might be able to procure a job for the band to play at Baby Doe’s on New Year’s Eve. The band agreed to drive to Baby Doe’s with him. The defendant rode with James Leake.

When they arrived at the establishment, the defendant asked the band to wait while he talked to the management. He then went into a back room for about thirty minutes. When the defendant reappeared, he told the band that the management was considering whether to give them an audition. He asked Mr. Leake if he would drive him to pick up his wife. Leake agreed and they left Baby Doe’s in Mr. Leake’s car.

At trial, James Leake’s testimony about the events up to that time was similar to the defendant’s, but they gave conflicting accounts about what happened after they left.

James Leake testified that when they set out to pick up defendant’s wife he did not know their destination, that the defendant directed him. Mr. Thompson told him to stop the car in a residential neighborhood at Twentieth and Bellview. When he stopped, defendant wrestled the car keys away from him, punched him twice in the head, threatened to shoot him, and pushed him out of the car. When Leake attempted to regain possession of his car keys, defendant got out of the car, hit him again, [577]*577pushed him down, kicked him, and threatened to shoot him if he moved. Then defendant drove away. Mr. Leake then found a telephone and called the police.

When the police arrived, Mr. Leake reported what had happened. The police told him that his car and the defendant had been found and took him to his car. He then drove to the police station, filed a report and viewed a line-up in which he correctly identified defendant Thompson.

Upon direct examination, defendant Thompson first testified that he had been convicted of burglary and stealing in 1977 and that he had been in jail for twelve months and then on probation for that offense. He testified to the events that led up to his arrival at Baby Doe’s and about what happened there, but he gave a completely different account of what happened after they left Baby Doe’s.

The defendant said that shortly after he and Leake left they stopped and bought some beer. He related that Leake then asked him if he smoked “joints.” He replied that he did, and then he and Mr. Leake smoked a marijuana cigarette. Mr. Leake then asked if they could stop to buy a ten dollar bag of marijuana. The defendant told Leake that he knew of some Jamaicans who would sell them some marijuana. They drove to the Jamaicans’ house at Twentieth and Bellview.

According to the defendant, Mr. Leake purchased a ten dollar bag of marijuana from the Jamaicans and then asked if he could buy a larger quantity. The Jamaicans gave them a beer and finally agreed to sell Leake a larger quantity but said that he would have to wait thirty minutes for the marijuana to be weighed. The defendant then reminded Mr. Leake that he had to pick up his wife and asked Leake if he would trust the defendant to borrow the car and come right back. He testified that Leake agreed to lend him the car and willingly gave him the keys to the car. He left but was not able to take a direct route to pick up his wife because he could not pass through many of the snow-covered streets. Police officers stopped the defendant on twenty-seventh street. They searched him, arrested him, and took him into custody.

Upon cross-examination, the prosecutor asked the defendant how many felony convictions he had. The defendant replied, “One.” The prosecutor asked, “Weren’t you convicted of burglary and stealing?” The defendant became confused. He had broken into someone’s house and stolen something. He was charged with and pled guilty to both burglary and stealing. He regarded that as one transaction. To clarify the matter the prosecutor asked, “Did you not plead guilty to or were you convicted of two separate counts?” The prosecutor then asked him what sentence was imposed and how long he was in prison.

At another point in the cross-examination, the prosecutor asked the defendant if he had an alcohol problem. He said that he did not. The prosecutor then asked him if he was an alcoholic. The court overruled defense counsel’s objection. The defendant answered that he was not an alcoholic. The prosecutor then asked him whether he had told a bond investigator that he was an alcoholic. Again, the court overruled counsel’s objection. The defendant replied that he did not. The prosecutor then rephrased his questions but repeatedly asked the defendant whether he had told the bond investigator that he was an alcoholic. The defendant consistently replied that he did not tell the investigator or did not remember telling the investigator that he was an alcoholic.

The prosecutor also asked the defendant who lived at the house that he and Mr. Leake entered at Twentieth and Bellview. The defendant said, “Some Jamaican guys.” The prosecutor then asked him whether he had purchased drugs from those “Jamaican guys” before. The court overruled counsel’s objection. The defendant replied that he had. The prosecutor also asked him whether the Jamaicans still lived in Kansas City and whether the defendant had seen or spoken to them after he was arrested for robbery.

When the jury was being selected, the prosecutor used his peremptory strikes so [578]*578that no black persons were left to serve on the jury. Defendant’s counsel then made a motion to quash the jury panel. The court overruled the motion.

I.

In his first point, the defendant claims that the trial court erred in refusing to quash the jury panel because the prosecutor used his peremptory challenges to strike all four black members of the venire. The defendant claims that the prosecutor’s action denied him his right under the state and federal constitutions to be tried by an impartial jury selected from a fair cross-section of the community. Many of the cases cited by the defendant deal only with the selection of the venire and not with the prosecutor’s use of peremptory challenges. Those cases state that the venire panel must be selected from a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357, 359, 99 S.Ct. 664, 666, 58 L.Ed.2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975).

Here defendant Thompson does not contend that the venire panel was not selected from a fair cross-section of the community; he alleges that the prosecutor denied him a fair trial by using peremptory challenges to remove all the black persons from the venire panel. Swain v. Alabama, 380 U.S. 202, 223-24, 85 S.Ct. 824, 837-38, 13 L.Ed.2d 759 (1965), is particularly applicable to defendant’s claim.

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State v. Thompson, 697 S.W.2d 575, 1985 Mo. App. LEXIS 4199 (Mo. Ct. App. 1985).

697 S.W.2d 575 (State v. Thompson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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