471 S.W.3d 337
Mo. Ct. App.2015Background
- Early morning, Aug. 20, 2012: Defendant entered victim B.J.’s home, assaulted her (choked, beaten with fists and a hair straightener), and fled; victim suffered severe injuries.
- Defendant charged with first-degree assault, armed criminal action (based on the assault), and first-degree burglary; jury convicted on all counts.
- DNA connected victim to stains and to clothing and accessories Defendant wore that night; Defendant testified (through a Spanish interpreter) he mistakenly entered the house believing it was his own and fled on seeing the bleeding victim.
- Trial court imposed consecutive sentences (25, 5, and 8 years). Defendant appealed on four grounds.
- Trial record: jury asked during deliberations whether a fist qualifies as a “dangerous instrument”; prosecutor argued in closing that both a fist and the hair straightener could qualify; defendant used a Spanish interpreter at trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Instructional error: submission of MAI-CR 3d 332.02 for armed criminal action | MAI instruction is proper and consistent with statute; defendant did not object, so no plain error | MAI permits non‑unanimous verdicts where alternative means (hand vs. hair straightener) are contested; Evans shows hands are not dangerous instruments, creating ambiguity | Court held MAI-CR 3d 332.02 conforms to law; jurors presumed to follow instructions; no plain error and verdict unanimous as to straightener. |
| Batson challenge — venireperson Collier | Strike was race-neutral: Collier had a husband prosecuted by the same office and incarcerated | Strike was pretextual: similarly situated white jurors were not struck; Collier had positive contact with prosecutor’s victim assistance office; disproportionate strikes of African-Americans | Court found prosecutor’s reason plausible and not pretextual; trial court not clearly erroneous; point denied. |
| Batson challenge — venireperson Cannon | Strike was race-neutral: Cannon had husband and stepson currently incarcerated and she visited them | Strike was pretextual: similarly situated white jurors not struck; prosecutor unsure if office prosecuted Cannon’s relatives; disproportionate strikes | Court held reason plausible (close immediate family incarcerated and visited); no clear error in trial court’s acceptance of reason. |
| Closing argument — prosecutor said defendant was “hiding behind” interpreter | Argument attacked defendant’s credibility (improper to ignore that he answered without translator) and was fair rebuttal | Argument invited adverse inference based on national origin/language/immigration and inflamed juror bias | Court held comments were credibility-focused, not racial or immigration‑based attack; trial court did not abuse discretion. |
Key Cases Cited
- State v. Evans, 455 S.W.3d 452 (Mo. App. E.D. 2014) (fists/hands do not qualify as "dangerous instruments" under § 556.061(9))
- State v. McFadden, 391 S.W.3d 408 (Mo. banc 2013) (presumption that jurors follow proper instructions)
- State v. Johnson, 207 S.W.3d 24 (Mo. banc 2006) (Batson three-step framework and pretext analysis)
- State v. Deck, 136 S.W.3d 481 (Mo. banc 2004) (standard for reversal based on improper closing argument)