State v. DavisState v. Davis
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Appellant, Anthony Davis, appeals from his jury trial conviction in the Circuit Court of the City of St. Louis of one count of
Appellant does not challenge the sufficiency of the evidence and we see no reason to extend this opinion with a detailed recitation of the facts. It is sufficient to note that, on November 30, 1988, Officers Mark Franklin and Jorden Lewis of the St. Louis City Police Department observed appellant discarding two items when approached by the officers’ marked patrol car. The items were found to be a package of More cigarettes, aрparently a favorite of PCP users, and a small bottle containing PCP.
On January 12, 1989, appellant was charged by information with illegal possession of PCP,
On April 20, 1990, appellant filed an apрeal of his conviction with this court. The transcript of the proceedings was filed on November 30, 1990. On January 25, 1991, appellant filed his pro se motion pursuant to Rule 29.15 requesting relief from his conviction and sentence. Because this motion was filed well outside the time limits prescribed by Rule 29.15(b), the trial court dismissed appellant’s pro se motion on March 19, 1991. This appeal followed.
On February 4, 1992, this court handed down its opinion affirming appellant’s conviction and affirming the motion court’s dismissal of appellant’s Rule 29.15 motion. On March 16, 1992, appellant filed аn application for transfer to the Missouri Supreme Court. On April 23, 1992, the Missouri Supreme Court granted transfer of the case, and then retransferred the case to this court “for reconsideration in light of State v. Kempker, 824 S.W.2d 909 (Banc 1992).”
Appellant’s sole claim on appeal of his conviction is that the trial court erred in denying his motion to quash the venire panel due to the State’s discriminatory use of its peremptory strikes in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We disagree.
The record reveals that the original ve-nire panel cоnsisted of thirty-five people. Twenty-two of these people were white, thirteen black. After strikes for cause, eighteen whites and ten blacks were left on the panel. The State used five of its allotted six peremptory strikes to rеmove black venirepersons and the resulting jury consisted of nine white jurors and three black jurors.
Appellant then objected to the composition of the jury, contending that the State had exercised its peremptory challengеs in violation of Batson v. Kentucky. The trial court asked for reasons for the State’s strikes, heard rebuttal from appellant’s counsel and denied the Batson motion.
The court then noted that certain cases from this court had held that three black venirepersons on the final jury was enough, in itself, to overrule a Batson motion because defendant was thereby protected from an equal protection violation. See State v. Crump, 747 S.W.2d 193 (Mo. App., E.D.1988); State v. West, 766 S.W.2d 103 (Mo.App., E.D.1989). Apparently believing that three blacks on the jury was not enough, the court asked the State to replace one of the whites on the final jury panel with a black juror that had been previously removed. The court explained that it wished this to be done “so that the protection that is sometimes talked аbout in these opinions may be there.” The State agreed to make the switch and appellant, although still maintaining his Batson objection was valid, also agreed. The final jury after the switch consisted of four blacks and eight whites.
On appeal, аppellant does not challenge the “switch” performed by the trial court outside of his claim that it did not cure the
Batson
violation he contends occurred. Instead, appellant focuses his attack on the strikes made by the State аlleging that
The trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact and is entitled to great deference on appeal. Hernandez v. New York, —U.S.-, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395 (1991). “In the typical peremptory challenge inquiry, the decisive questiоn will be whether counsel’s race-neutral explanation for a peremptory challenge will be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.” Hernandez, 111 S.Ct. at 1869. Although it is not sufficient to argue that аffirmance must follow solely because the trial court considered the prosecutor credible, State v. Kempker, 824 S.W.2d at 911, this court believes the trial court’s ability to assess the credibility of the prosecutor plays a major role in determining the validity of a Batson challenge. To hold, as appellant urges, that this court should base its decision on nothing more than the cold printed word of the transcript is to ignore not only United States Supreme Court precedent, see Hernandez, 111 S.Ct. at 1868, but also reality. A party’s demeanor, more often than not, says far more than their words. This court will decline to overturn the circuit court’s findings on the issue of discriminatory intent unless firmly convinced that the court’s determination was clearly erroneous. State v. Kilgore, 771 S.W.2d 57, 62 (Mo. banc 1989).
On appeal, apрellant has challenged all five strikes made by the State against black venirepersons. We note, however, that appellant’s attorney at trial only argued that three of the State’s strikes were for pretextual reasons. Wherе a trial counsel fails to challenge a strike as pre-textual, this court is left with little in way of a record to review the State’s reasons for the strikes. Instead, we must assume that no challenge was made to the State’s reasons becаuse trial counsel was satisfied the strike had not been made with the intent to discriminate. Where counsel for appellant is satisfied with the reason given, this court is hardly in the position to find the trial court erred. State v. Jackson, 809 S.W.2d 77, 81 (Mo.App., E.D.1991).
As to the other three strikes, we first notе the State struck Venireperson Austin because he laughed and rolled his eyes during voir dire. The court admitted it had observed this behavior. On appeal, appellant directs us to another venireper-son that had laughed but was not struck. Whilе the failure to strike similarly situated jurors may constitute some evidence of discriminatory intent, State v. Brown, 747 S.W.2d 261, 262 (Mo.App., E.D.1988), it is not conclusive evidence, in itself, that discrimination occurred. Instead, we believe that the disparate treatment of similarly situatеd jurors should be regarded as a single factor for the trial court to consider in making its determination in addition to other surrounding circumstances and the credibility of the State’s attorney. Where, as here, the evidence allows two permissible views of the circumstances involved in a strike, the fact finder’s choice between them cannot be clearly erroneous. Hernandez, 111 S.Ct. at 1871-72. The court in the present case was able to observe the behavior of both venirepersons аnd determine whether the behavior was truly similar. The court obviously decided it was not and believed the reason given by the State’s attorney for striking Venireperson Austin was the real reason, and that race did not play a roll in the State’s deсision.
The same rationale applies to the State’s strike involving Venireperson Jones. Venireperson Jones was struck because she was a day care worker and the State thought she was more receptive to appellant’s questions. The State’s attorney explained that she believed day care workers tended to be “a little more sympathetic.” Appellant points out that Venire-person Prag was a high school counselor and, thus, fell into a category of those that could be deemed to be more “sympathetic.” Again we note that the key in a
Batson
This court’s function is not to perform an independent review of a trial court’s rejection of a Batson claim. Instead, we review the trial court’s decision with great deference to its findings. In the present case, the trial court had ample evidence to support the reasons given by the State for removing Venireperson Jones. While Veni-reperson Prag shared some of Venireper-son Jones’ аttributes, the trial court was in the best position to determine whether the disparate treatment was a result of impermissible racial prejudice or permissible trial tactics. We cannot find that the trial court’s decision here was clеarly erroneous.
The State’s final strike involved Venireperson Hamilton. The State struck Venireperson Hamilton because she seemed “indifferent” to the proceedings and did not answer any questions during voir dire. We note that Venirepеrson Hamilton was voir dired with six other jurors separately from the main panel when it appeared there were an insufficient number of jurors to choose from after strikes for cause were made. The questioning of those jurors was rathеr perfunctory and three jurors, other than Venireperson Hamilton, answered no questions other than when they were directly asked. As we have noted in the past, this court regards strikes for “indifference” or “inattentiveness” with suspicion. State v. Metts, 829 S.W.2d 585, 587 (Mo.Apр., E.D.1992). Such a “reason” requires a subjective judgment on the part of the State’s attorney that is “particularly susceptible to the kind of abuse prohibited by Batson.” U.S. v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991). Based on the record before us, this court does not find sufficient evidence to support the State’s use of a peremptory challenge on Venireperson Hamilton.
This does not mandate reversal in the present case, however,. As noted above, the trial court asked the State to switch one of the rеmoved black venireper-sons with a retained white venireperson. Venireperson Hamilton, as a result, served on the jury in this case. The ordered switch had the result of disallowing the strike of Venireperson Hamilton and thereby cured the violation of her right to sit on the jury. While appellant had requested a quashing of the jury panel due to the perceived Batson violation, this court does not believe the quashing of the entire jury panel is mandated by Batson. Where a Bat-son violation can be cured by thе mere disallowing of the violative strike, the trial court, in the exercise of its discretion, should be permitted to so cure the violation. The appellant, therefore, suffered no prejudice from the disallowed strike of Venirepеrson Hamilton.
Appellant next contends that the trial court erred in dismissing his untimely Rule 29.15 motion. The constitutionality of the time limitations provided in Rule 29.15 has been considered on innumerable occasions. We see no reason to add to the vast number of cases discussing this issue and, therefore, affirm this point pursuant to Rule 84.16(b).
The decision of the trial court is affirmed.
REINHARD, P.J., and CRANE, J., concur.