State v. Wright

972 S.W.2d 305, 1998 Mo. App. LEXIS 573, 1998 WL 141818
CourtMissouri Court of Appeals
DecidedMarch 31, 1998
DocketNo. WD 54083
StatusPublished
Cited by2 cases

This text of 972 S.W.2d 305 (State v. Wright) 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. Wright, 972 S.W.2d 305, 1998 Mo. App. LEXIS 573, 1998 WL 141818 (Mo. Ct. App. 1998).

Opinion

RIEDERER, Judge.

Appellant, Wendell Corrie Wright, was convicted of rape and sodomy. The sole issue on appeal is whether the state’s peremptory strike of a venire person was racially motivated in violation of Appellant’s right to equal protection of the law under the Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the Missouri Constitution. Affirmed.

FACTS

Twenty-seven year-old Wendell Corrie Wright, met seventeen year-old Caren Borg-man in Slater, Missouri during the summer of 1996. Borgman was interested in dating Wright. The first time Borgman went to Wright’s house, the two drank alcohol and later engaged in sexual intercourse. After that encounter, Borgman no longer was interested in dating Wright, but she saw Wright at his house on a few more occasions without having sexual intercourse.

On July 21, 1996, Borgman met Wright and went to his house to get cigarettes. When they arrived at his house, Wright pushed her into his bedroom and forced her to engage in sexual intercourse, anal sex, and oral sex with him. After getting away, Borg-man drove to Marshall to the house of her sister, Tanya Borgman. She told her sister that she had been raped, and Tanya called 911. Caren Borgman was taken by ambulance to Fitzgibbon Hospital. Dr. Jennifer Swiney examined Borgman and concluded that she had been raped, sodomized, and assaulted.

Wright was charged with forcible rape, in violation of § 566.030, RSMo 1994, and forcible sodomy in violation of § 566.060 RSMo 1994. On January 9, 1997, the case proceeded to trial. While questioning the panel of potential jurors during voir dire, defense counsel asked if anyone could understand why Wright, who is black, might be concerned that all the police officers involved in the investigation were white and why Wright might ask to speak to a black police officer. All but one of the officers who investigated the charges against Wright were white. Ve-nire persons Alexander and Lightfoot, who are black, responded that they could understand why Wright was concerned and wanted to speak to a black officer.

[307]*307The State used peremptory strikes against Alexander and Lightfoot. Defense counsel made a Batson challenge to the State’s peremptory strikes of Alexander and Lightfoot, charging that the strikes were racially discriminatory. The prosecuting attorney explained that he struck the two venire persons because of their responses when questioned about Wright’s concerns and because Alexander had never been married. The court overruled the Batson challenge.

The jury found Wright guilty of forcible rape and forcible sodomy. On March 5, 1997, the court sentenced Wright to concurrent terms of 26 years imprisonment on each count. Notice of Appeal was timely filed on March 14,1997.

Although Appellant initially raised the Bat-son issue regarding two peremptory strikes, the sole issue on appeal is whether the state’s peremptory strike of Venireperson Cheryl Alexander was racially motivated in violation of Appellant’s right to equal protection of the law under the Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the Missouri Constitution.

STANDARD OF REVIEW

The trial court’s determination that there was no purposeful discrimination in a peremptory strike is a finding of fact which should not be disturbed on appeal unless clearly erroneous. State v. Gray, 887 S.W.2d 369, 384, 385 (Mo. banc 1994). We find a determination to be clearly erroneous only when we have a definite and firm conviction that a mistake was made. Id. Because much of the decision depends upon evaluation of intangibles such as credibility and demeanor, the trial judge’s determination that a peremptory strike was or was not made on racially neutral grounds is a finding of fact which is entitled to “great deference” on appeal. 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).

BATSON ISSUE

Appellant contends that the state’s use of a peremptory strike against venire person Alexander was racially discriminatory and violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In State v. Parker, 836 S.W.2d 930 (Mo. banc 1992), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992), the Missouri Supreme Court set out a three part test for a trial court to follow when confronted with a Batson challenge. “First, the defendant must raise a Batson challenge with regard to one or more specific venire persons struck by the state and identify the cognizable racial group to which the venireperson or persons belong.” Id. at 939. Second, “the trial court will require the state to come forward with reasonably specific and clear race-neutral explanations for the strike.” Id. Third, “[a]ssuming the prosecutor is able to articulate an acceptable reason for the strike, the defendant will ... need to show that the state’s proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated.” Id.

The State’s explanation for the strike only has to be facially race-neutral. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995). Unless a discriminatory intent is inherent in the explanation, the court will deem the explanation race-neutral, even if it is not persuasive or even plausible. Id. If the prosecutor states a race-neutral reason for the strike, the burden shifts back to the defendant to show that the State’s explanation was merely pretextual and that the strikes were, in fact, racially motivated. State v. Coleman, 949 S.W.2d 137, 145 (Mo.App.1997). If the defendant fails to challenge the State’s explanation of the peremptory strike as a pretext, and simply relies on general or conclusory allegations about the State’s reasoning, no effective Batson challenge has been made, and nothing is preserved for appeal. State v. Mack, 903 S.W.2d 623, 629 (Mo.App.1995).

While Appellant’s trial counsel, Robert L. Fleming, questioned potential jury members, the following exchange occurred between Fleming and Venireperson Alexander:

MR. FLEMING: Is there anyone that cannot see why an individual such as Mr. Wright, in the situation that he is, who is alleged to have been involved in a sexual [308]*308offense, and the officers were predominantly white investigating it; is there anybody that cannot see that he would be concerned about that? The individual says, “Well, I don’t know what that has to do with it.”
In fact, we will have evidence in this case that Mr. Wright is concerned about that to the point where he asked about a specific black officer to talk to there in Slater.

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Bluebook (online)
972 S.W.2d 305, 1998 Mo. App. LEXIS 573, 1998 WL 141818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wright-moctapp-1998.