Dеfendant, Harold Hayden, appeals from his conviction of murder in the second degree, § 565.021 RSMo 1986, two counts of armed criminal action, § 571.015 RSMo 1986, one count of attempted robbery in the first degree, § 564.011 RSMo 1986, and three counts of robbery in the first degree, § 569.-020 RSMo 1986. Defendant was sentenced to a term of life imprisonment for the second degree murder and an additional 471 years of imprisonment on thе remaining convictions. He was charged with first degree murder and the state intended upon conviction to seek the death pеnalty.
Defendant contends the trial court erred in overruling his objection to the prosecution’s use of peremptory strikes to remove Afriean-Americans from the venire panel. He further contends the trial court erred by not entertaining his objection to the prosecutor’s use of peremptory strikes to remove women from the venire panel. Defendant also challеnges the use of MAI-CR3d 302.04 defining “reasonable doubt”. Finally, defendant asserts the motion court erred in denying him an evidentiary hearing for his Rule 29.15 motiоn for post-conviction relief.
Prior to peremptory challenges the pool of qualified jurors consisted of six African-American females, three African-American males, fifteen white females, and six white males. There were four white females in the alternate pool. The state used its nine peremptory strikes to remove five African-American females, three white females, and one white male. At that time, the defense raised a Batson 1 challenge claiming the state used its peremptory challenges in a racial and gender biased manner. The trial court held Batson applied only to racial discrimination and required the state to give race-neutral explanations for the five African-American venire persons who had been peremptоrily struck. Although the prosecutor offered to give explanations for the three white female venirepersons who had beеn peremptorily struck, the trial court refused to allow those explanations.
The
Batson
challenges were timely made as they were presented prior to dismissal of the excused jurors.
State v. Parker,
The trial court’s dеtermination regarding purposeful racial discrimination in the use of peremptory strikes is a finding of fact and will not be disturbed on aрpeal unless it is clearly erroneous.
State v. Tomlin,
A prоspective juror’s stance on the death penalty is relevant to a prosecutor’s conduct of a capital сase, and is unrelated to any racial considerations. At trial, the defense failed to make any argument to demonstrate thе state’s rationale was a pretext. Defendant has failed to establish error in the trial court’s ruling.
The United States Supreme Court has recently held gender to be an unconstitutional proxy for juror competence and impartiality.
J.E.B. v. Alabama ex rel. T.B.,
— U.S. -,
Defendant established an adequate record indicating the targets of the qualified venire panel, the composition of the state’s peremptory strikes, and the final comрosition of the jury. Any attempts to resolve the issue of gender discrimination at trial were summarily cut-off by the trial court. The issue has beеn preserved.
Defendant’s request for a new trial, however, is not a proper remedy. Where a criminal defendant made а specific objection and made or attempted to make the necessary record, the proper coursе of action is to remand for a hearing to determine whether a reversal and retrial is required.
State v. Taylor,
After trial, defendant filed a Rule 29.15 motion for post conviction relief. The state filed a motion to dismiss, and the motion court held а hearing on the state’s motion. At the hearing, defendant claimed ineffective assistance of counsel at trial based on counsel’s failure to call two witnesses. After some questioning it was adduced that defendant had become aware of these potential witnesses after the conclusion of his trial. Their alleged testimony would be that while confined with the co-defendants in the сase they heard the co-defendants agree to state that defendant was the triggerman in the murder. The co-defendants did not testify.
To be entitled to an evidentiary hearing on the issue of ineffective assistance of counsel, a movant must plead faсts which, if true, would warrant relief.
State v. Anderson,
Counsel was unaware of the existence of the alleged witnesses at the time of trial. Nothing in the record or defendant’s motion gives any hint that invеstigation, no matter how detailed, would have located witnesses with this purported information. The trial court’s ruling was not clearly еrroneous.
Defendant’s final point contends the trial court erred by submitting MAI-CR3d 302.04 defining “reasonable doubt”. This argument has been repeatedly rejected.
State v. Griffin,
The cause is remanded for hearing on the Batson challenges to venirepersons Wilson, Tayoan and Swayne. The trial court shall certify to this court a record of its proceeding and findings.
Notes
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Batson v. Kentucky,