*1 Missouri, Respondent, STATE McFADDEN, Appellant.
Vincent
No. SC 86857.
Supreme Missouri, Court of
En Banc.
May
Rehearing Denied June
jury’s recommendation. This Court has Const, jurisdiction V, pursuant to Mo. art. error, Among sec. 3. his nine points McFadden challenge. raises valid Batson *3 The judgment is reversed and case is remanded.
II. facts, which this Court in reviews light verdict,1 most favorable to the 2002, 3, July indicate that on McFadden Douglas and Michael encountered Todd ensued, Franklin. An during altercation which Douglas and each McFadden shot Franklin died at the scene. McFad- charged den first-degree with the murder and armed criminal action. trial, At the State exercised five of its nine peremptory challenges to remove Af- Rosemary Percival, E. Office of Public venirepersons, rican-American leaving Defender, City, Appellant. Kansas only one African-American serve on jury. challenged The defense counsel Nixon, (Jay) Atty. Gen.,
Jeremiah W. Kentucky,2 strikes under v. After Gen., Shaun J. Mackelprang, Atty. Asst. explanations, offered defense City, Jefferson for Respondent. counsel argued these reasons were WHITE, Judge. RONNIE L. merely pretextural. court The trial denied jury
McFadden’s Batson
claim.
I.
guilty
found McFadden
charges.
of both
A jury
During
convicted Vincent
penalty phase,
jury
McFadden
found
(McFadden) of first-degree murder
statutory aggravators
five
and recom-
armed criminal action.
22,
McFadden was mended a
On April
sentence
death.
given
2005,
penalty
the death
consistent with the
the court sentenced McFadden to
21,
Miller-El,
Taylor,
(Mo.
impartial jury,
State v.
134
24
S.W.3d
banc
125 S.Ct.
Strauder,
308,
(citing
at 2323
at
100 U.S.
10
303),
essentially
"state-spon-
Otto
creates
79,
Kentucky,
2. Batson v.
476 U.S.
106 S.Ct.
in,
group stereotypes
sored
rooted
and reflec-
1712,
(1986).
defense
Venireperson C.W.
pretextual
nation was
and the true reason
It
that African-American
appears
for the strike was racial.8
would have been
venireperson C.W.
had
juror
Her father
pretext,
strong
To show
the defense can
for
State.
working
death and she had
present “side-by-side comparisons” of veni- been shot to
De-
racially
relationship with law enforcement.
repersons allegedly struck for
dis-
Strauder,
308,
303;
Miller-El,
at
See
Ed-
at
125 S.Ct.
2325.
also
3.
100 U.S.
10 Otto
9.
2324;
Miller-El,
525; Antwine,
wards,
at
v. Ed-
I A3
125 S.Ct.
State
at
116 S.W.3d
wards,
511,
2003);
(Mo.
116 S.W.3d
524
banc
S.W.2d at 65.
Brown,
553,
(Mo.
State v.
958 S.W.2d
553
1997);
Parker,
banc
State
836 S.W.2d
v.
2325; Edwards,
Miller-El,
at
116
10.
(Mo.
1992).
933
banc
525; Antwine,
at 65.
at
743 S.W.2d
S.W.3d
Batson,
4.
See
476
at
It does not appear that there a S.R. expressed who also that she would white with her trouble tele- difficulty away from taking time *5 phone, but such an comparison identical company work. S.R. a worked for necessary. not per “A rule a se de- was about to an undergo audit. She was fendant cannot awin Batson claim unless key people” employer “one of the and her exactly juror there is an identical white give had written a letter for her to to the would inoperable; leave Batson potential explaining court the extent of the hard- jurors are not a products of set of cookie ship. She worked in the “back office” and cutters.”14 needed “to account for all transition. though Even the State made no record coming The cash out A and stuff.” telephone of C.W.’s at ringing the time and lot of work to prepare was needed for the failed to ask the court to instruct venire- audit. persons telephones, to turn off their only Not was S.R.’s of hard- statement State apparently so that it bothered claim, ship more definite than C.W.’s but used the strike on C.W. and allowed white had S.R. an additional reason to be struck. venireperson jury. J.B. to on remain expressed familiarity S.R. with the scene dire, During voir J.B. repeatedly stated of the that he murder. The indicated that prove guilt would want the State State beyond any had possible he there been doubt before could extensive construction impose a death sentence. The un- State area since the time of the murder and successfully cause, moved to strike J.B. for jurors had familiar with concerns that arguing quite that it clear “was he would exclusively rely scene would not on wit- require higher guilt burden for he before ness’ of at accounts the scene as it existed Yet, would penalty.” consider the death familiarity the time of the murder. This striking rather than venireperson white with the area the crime served as the required who a higher proof, burden of striking rationale for African-American struck an State African-American because C.N., M.B., V.G., and W.S. telephone rang. Yet, S.R., addition there four Second, jurors familiarity additional white with State asserts that it struck C.W. because it would been difficult with were not the area the crime who n. that the is “a solely on the claim struck.15 postal worker.”18 Venireperson C.N. had not that the trial court held Court African-Ameri The State contends strike, be- allowing clearly erred for four venireperson C.N. was struck
can
his prior
described
prosecutor
cause
(1)
an
of the
employee
she was
reasons:
postal
workers
negative experiences
would
City
Louis
School District and
St.
why
reasons
liberal,
jurors, gave specific
high
in a
likely
she lived
(S)
two
jurors,
good
gunshots,
crime
but never heard
area
occupations
hardship,
create a
had similar
jurors
service would
other
she was familiar with
area
challenged postal worker.19
to the
either
crime. Each of these reasons
Here,
explain
prosecutor failed
equally applied
jurors
white
who were
or describe what
opinion,
for his
the basis
by the
or
no rele
not struck
State
entailed,
give spe-
or
prior experiences
vance to the case.
why
employee
an
cific reasons
First, the
claimed he struck
prosecutor
unfavor-
system would be
school
St. Louis
employee
because she was
C.N.
more,
Without
C.N.’s
able for the State.
However, in
Louis School District.
St.
pre-
the school district is
employment with
rejected the
this Court
textual.
juror’s employment
post
notion that a
as a
Second,
argued
justify
sufficient reason to
al worker was
she lived
C.N. because
that he struck
that,
peremptory strike.16 This Court held
gun
never
area and had
heard
high crime
phrase
mere incantation of the
‘he
“[i]f
*6
loosely
appears to be
related
This
shots.
postal
ais
worker’ were sufficient to over
high
living
case
in
because witnesses
to the
showing
any
pretext,
come
of
the third
they
testifying
be
that
areas would
crime
step of the Batson test would be illuso
However,
recog
gunshot.
a
C.N.’s
heard
ry.”
case,
following guidance
only
a
is
gunshot
of
irrelevant. Not
nition
was offered:
gunshot
a
recognition
was the witnesses’
of
future,
In the
should
courts
similar-
if it
dispute,
was not
but even
were
ly
occupation
consider
on
strikes based
juror’s
dispute,
why
it
unclear
lack of
is
carefully, assessing
pretext by
them for
hearing
rele
experience
gunshot
looking at
occupation
whether the
been
Additionally,
vant.
had this issue
particular
claimed traits relate to the
relevant,
all
the State would have asked
juror,
case
similarly
or
whether
situated
they
recognize
could
jurors
and so
are
differently,
treated
gunshot.
of a
State’s failure
forth,
“[T]he
set out
sound
considering
factors
any
above,
meaningful
to rest
voir dire ex-
engage
not allow
a strike
Edwards,
following
jurors
at
See also
said
17. Id.
526.
15. The
five white
J.,
(Teitelman,
("in
concurring)
were familiar with the area of the crime
at 550
(whose
cases,
were
the State: S.R.
not struck
majority
juror’s
prospective
of
vast
area); J.S.
aunt and uncle had lived in the
nothing
employment has
to do with his or her
(whose
grandparents
lived in
father and
had
ability
fairly weigh
the evidence and arrive
(who
area),
area),
L.S.
had worked in
decision”).
just
at a
(who
utility
R.K.
had
electric
work in
done
area),
(had
nearby
and E.D.
lived in
Edwards,
Finally, asserts he struck jury. C.N. because of hardship and her familiari- ty with the area of the crime. sug- C.N. Third, the State asserts that it struck gested it would be difficult for her to serve M.B. because she knew relative of a because hard for her employer potential witness. M.B. indicated to replace her for a week and she was a niece had dated someone with the same full-time evening student approaching the witnesses, last name as one of the but that end term. The State also claimed to did any family she not know members of have struck C.N. familiarity because of her man prose- her niece had dated. The However, with the area crime. cutor stated that he removed M.B. because above, noted white S.R. ex- also she knew the family witness’s and her pressed and, hardship along four oth- family “close involvement” with the could jurors er white were not struck, had a However, a problem. M.B. did not familiarity with the area of the crime. know the witness and was not even asked Venireperson M.B. well how she knew the man her niece had C.W., Like it appears that Afri dated. Additionally, because this loose can-American venireperson M.B. would connection State, a witness for the strong juror have been a for the State. arguably bias would be in favor expressed She in the ability confidence of State. fingerprint guilt. evidence to show Since Finally, the State contends that it given the defendant had notice of an alibi M.B. she had view because an unrealistic defense, accuracy M.B.’s belief of scientific evidence. had indicated M.B. fingerprint evidence would served the laboratory she was a medical technol- Also, C.W., State well. like M.B. had a *7 ogist who full time for the crime worked family who member had been to shot County. laboratory in Louis She indi- St. death. that did not do personally cated she However, facts, despite these the State testing and she did not have contact with citing struck M.B. following the four rea- stated, people “If you who did. She are (1) problems sons: she with con- had the crime], going you a to going to are [commit (2) concert, cept acting of she was famil- get caught technology that with (3) crime, iar of with area knew she today.” confidence While M.B.’s (4) witness, a potential relative of a and a high, be- may forensic evidence such be an she had of unrealistic view scientific credibility of only strengthen lief would evidence. fingerprint linking the State’s evidence First, argues State it struck McFadden to the crime. M.B. because problems she had with the However, of concept acting addition, concert. In strike the State failed to position. juror there is no for Al- to support exposure this had white L.S. who also though other expressed laboratory had L.S.’s boss police work. difficulty with concept, Highway did. State M.B. never worked with the Missouri Travis, (Ala.2000)). 125 S.Ct. at Ex (quoting parte 776 So.2d City of St. Louis laboratory lived in an area for Patrol to create standards area. She did not training drug high aids for crime testing prepare considered though even police high with it a crime area sniffing dogs. L.S. would meet consider However, products. this dogs to test there once. officers for she was robbed officers “in- police explana- He had with consider whether discussed Court must in the teresting gruesome kind of stories was to provided by tion the State related police general.” tried, not reasonably federal lab work but clear and the case to be certainty finger- Here, M.B.’s Because of un- legitimate.22 it is specific, and guilt, would determine she print evidence own clear that V.G.’s assessment her stronger juror the State than was for any bearing has whatsoever neighborhood L.S. hand. on the case at Venireperson V.G. Third, prosecutor allegedly struck gave six reasons for
The State with her problem V.G. because she had venireperson striking African-American run did not want to out leg, and he (1) elderly, opinionated, she was V.G.: infirmity. of an While jurors V.G. because (2) hard-headed, she that she lived denied leg and had ulcer on her she (3) area, had an ulcer high-crime in a she following planned to see doctor she have read leg, on about week, doing it also indicated that was she case, (5) she was familiar with the area addition, healing. better and the State crime, lived in her sister his failed white C.S. for to strike area of the crime and was the victim of length infirmity. questioned C.S. was arson. of these either equal Each reasons at- problem anxiety regarding jurors ly applied to not white tacks. informed the court that he has C.S. struck the State. to fight anxiety attacks taken medication years, and he did not know how fifteen First, alleged State If sequestration. handle he felt he would very elderly, opinion V.G. “[s]he’s because on, coming he could take ex- panic attack ated, myself both and defense corrected medication, help right tra but it would counsel questions.... She seems away unable listen and he very opinionated and hard-headed and truly If the afraid the evidence. may not good discussing consid infirmity, ap- jury due to C.S. losing ering jurors.” However, of other views stronger been a candidate pears to have Judge recognized, Teitelman strikes based for the use the State’s vague on references attributes like de strike. largely meanor “are irrelevant one’s *8 ability juror and expose to serve Fourth, expressed concern the State
venirepersons to strikes for no case, yet that had read about V.G. except for race.”21 Ac real reason their similarly failed situated white to strike vague are cordingly, such references heavi have juror. might indicated that she V.G. ly scrutinized. in newspaper, the case read about daily. How-
Second,
paper
reads the
the State
that
because she
offered
V.G.
ever,
if she
read
in
indicated that
high
“lives
crime area but denied that
V.G.
case,
she
not remember
it
about the
did
high
crime.” V.G. stated that she
2324; Edwards,
(Teitelman, J.,
juror details, R.K. could not recall he was MR. BISHOP: I’m sorry. more certain that he had read about the VENIREPERSON W.S.: ifWhat there case the newspaper. eye more than one got witness? You
Fifth, one, the State removed V.G. due to got she one. How do that work? familiarity with the area of the crime. As MR. I guess BISHOP: I’ll you. ask If previously examined, equally this reason you juror, are selected as a you have to applied jurors to five white who were not determine credibility of the wit- by the State. your job. nesses. you That’s Can make that decision? If there are witnesses Finally, the State commented that V.G.’s stories, with competing you can make sister resided in the area of the crime and the decision of telling who is the truth However, was an arson victim. the State is lying? who alleged this case that McFadden had VENIREPERSON W.S.: Yes. jurors terrorized the area and if the cared area, people they While W.S. have been initially con- find McFadden guilty. Logically, fused about juror, his role as a this confu- personal with a connection to a crime vic- sion seems to have been alleviated tim the only area would strengthen the explanations. counsel’s There is no indica- credibility of the argument. State’s tion that W.S.’s confusion would im- paired ability juror. serve as a Venireperson W.<S. Second, the State asserts that it struck The State following stated the because, although W.S. very he lived close four reasons for striking African-American crime, to the area of the he stated he was (1) venireperson W.S.: he seemed to be not familiar with it. Although, zip W.S.’s agitated and confused about his role as a code indicates he lived in Jennings, which (2) juror, although very he lived close to crime, is near the area of the the State crime, the area of the he stated he was not him faults for not responding that he it, familiar with he did not want to familiar with the area. Even if it were share details nephews’ about his work established that W.S. was familiar with the law enforcement with the rest of panel, crime, area of the the State did not strike appeared he sleeping during jurors five white responded affirma- voir dire. tively were familiar with the First, argues it struck For example, area. E.D. stated that she W.S. because he seemed to agitated in Jennings lived thirty years over juror. confused about his role as frequently shopped in the area of the State’s allegation appears to be based on crime. The State removed W.S. on the *9 following exchange: possibility mere that he was familiar with area, yet left E.D. and four other white got ag-
VENIREPERSON W.S.: You jurors definitely were familiar with it. gravation and what do get, attorney, Third, crime attorneys, the defense the State that asserts they got eye witness. How do that W.S. because he did not want to share
657 dire, usually which is during voir sleeping work in law nephews’ his details about peremptory to exercise a valid reason panel. rest of the enforcement However, of a valid the existence panel asked strike.23 defense counsel When enforcement, this Court justification preclude will anyone relatives in law had when a Batson violation recognizing from nephews he had three responded W.S. larger in facts of the case examining the then to in law enforcement. He asked context.24 following the bench where approach exchange occurred: [W.S.], you
THE had indicated IV. COURT: you three nephews? had to peremptory its strikes The State used neph- W.S.: Three VENIREPERSON qualified the six African- remove five of police officer. One ews. One to venirepersons. response American Colorado, Denver, Washington, and one chal- Batson properly-raised the defense’s D.C., Agent. discuss F.B.I. We don’t for lenge, explanations offered State I into get want their affairs. don’t to which, when examined its strikes —some that. isolation, validity. to have some appear However, light totality anything THE Is there COURT: circumstances, it becomes obvi- facts and en- your nephews being involved law merely explanations were ous that these ability your that would affect forcement per- of its for State’s exercise pretext juror in this case? to be a fair discriminatory racially for emptory strikes No, fair I’m VENIREPERSON W.S.: preju- excuse such obvious reasons. “To just I open minded. am concerned party can also challenged dice because safety. about their nondiscriminatory reasons articulate to MS. You don’t want TURLINGTON: erode what strike would their location? disclose provides against protection little VENIREPERSON W.S.: Yes. jury selection.”25 discrimination THE It affect abili- your COURT: won’t ty police testimony. to You can guilty listen to a defendant “However fairly impartially? be, requires listen to that conviction the law fair through a trial. only be obtained Yes, I can. VENIREPERSON W.S.: peers, a of one’s right sit before high concern for While W.S. race, but because not because chosen law nephews’ safety, his attitude toward doing civic their standing their citizens appears generally posi- enforcement fair trial.”26 duty, is essential usually tive. an attitude is favorable Such Bat- of McFadden’s denial court’s position. to the State’s Ac clearly erroneous. challenge was son Fourth, judgment can not be allowed cordingly, that it contends to stand.27 appeared because he to be struck W.S. 1108, State, Hall, (Mo. 803 N.E.2d 25. McCormick
23. State v. S.W.2d 205-06 Antwine, (Ind.2004). also See banc S.W.2d at 65. 2325; Miller-El, 231, 125 24. 545 U.S. J., (Teitelman, at 551 116 S.W.3d 65; Antwine, Hopkins, 743 S.W.2d at State v. concurring). (Mo.App.2004). at 2340. dissent, principal opin- regard With *10 658 LIMBAUGH, J.,
V. dissents in separate filed; RUSSELL, opinion JJ., PRICE and Because McFadden’s Batson claim is in opinion LIMBAUGH, concur of J. dispositive, necessary is not to address remaining JR., eight grounds appeal. LIMBAUGH, STEPHEN N. Judge, judgment dissenting. is reversed and case is remanded for a new trial. respectfully I dissent. agree majority
I
with the
that the deci-
WOLFF, C.J., LAURA DENVIR
to
venireperson
sion
strike a
because of
TEITELMAN,
JJ.,
STITH and
person’s
concur.
is unacceptable.
race
How-
(2005),
inappropriately
ion does not
conduct a de
196
or
clearly
L.Ed.2d
erroneous
apply-
novo review as the dissent claims
ruling
when
standard used to
review trial court’s
test,
ing
Edwards,
"totality
(See
of relevant facts”
but
challenge
in a Batson
116
exactly
rather follows
Batson Miller-El
in
at
S.W.3d
116
at
S.W.3d
“prima
Instead,
that McFadden established a
facie
Breyer opines
Justice
about the fail-
purposeful
by showing
case of
discrimination
adequately
ure of Batson to
"ferret out uncon-
totality
that the
gives
of the relevant facts
rise
stitutional discrimination in the selection of
to an inference
discriminatory purpose.”
976,
jurors,”
passage
Id. at
and the
that fol-
79, 93-94,
Kentucky,
v.
Batson
U.S.
476
106
paragraph quoted by
lows
the dissent ad-
1712,
(1986);
S.Ct.
90
69
L.Ed.2d
v.
Miller-El
dresses the need to ensure those Constitution-
Dretke,
231,
2317, 2324,
545 U.S.
125 S.Ct.
protections:
al
(2005).
659 institutional and defects pro- ing procedural ever, decision-making majority’s the the of an over- existence in this of its selec- established cess case fails because law, Specifi- discriminatory purpose. applicable arching its tive identification and, Court found evidence cally, Supreme of the law to the facts the misapplication instances, questioning that shuffling, disparate its mischaracteriza- several all, trickery, a writ- All in the tion of the facts themselves. amounted formal exclude topic the how to majority has failed to show that ten manual on accept jury semice. the trial court to the minorities clear error for from 231, for 125 The explanations its 545 S.Ct. 2333-39. state’s race-neutral U.S. (as majority Supreme Court was not the strikes. here) totality of using the appears do a de novo stan- apply the facts to relevant I. the trial court’s determi- dard of review to appro- the Though majority parrots If venirepersons. nations as to individual review, priate legal standard of which is doubt, just months three there were error, for v. review clear Miller-El, Jus- ago, follow-up in a case to (Mo. 511, 2003), 525 banc 116 S.W.3d “present Breyer legal clarified the tice majority length to which the stretches to framework” as follows: the state’s satisfy critical reader that judge placed trial is best to consider explanations were not race-neutral shows credibility: that underlie de- the factors majority actually in de engaging that the meanor, context, atmosphere. And preferred novo review so to reach its judge placed is best to deter- Moreover, majority fails to outcome. case, whether, in a mine borderline give passing to the so much as reference or prosecutor’s hesitation contradiction reviewing defer to rule courts should (a) (b) difficulty deception, reflect or judgment trial court’s when it comes a rational reason providing assessing legitimacy explanation of an judges Appellate instinctive decision. Morrow, for peremptory strike. State v. on of a cold record cannot the basis 100, (Mo. 114 banc easily second-guess judge’s a trial deci- of peremptory necessarily nature strikes is likely motivation. These cir- sion subjective, and where the evidence before appellate mean that courts cumstances competing court amenable to two must, will, grant the trial courts views, the fact-finder’s choice between leeway applying Batson. considerable clearly them cannot be erroneous. Id. — Thus, even if this Court would have decid- Collins, —, v. 126 S.Ct. Rice U.S. differently, ed a close case if the trial 969, 977, (Breyer, L.Ed.2d 163 824 court’s was plausible, decision that decision J., concurring). Cromartie, Easley v.
must stand. Rice, Supreme In Court also recon- 1452, 242, 121 149 L.Ed.2d U.S. must prosecutors firmed rules that (2001). making when their abide them a Bat- way, majority defending much strikes and in after In the same challenge. “Although misapplies “totality of the relevant son comprehensible present [for must reason explained facts” test recent- Dretke, process ... this does ly making strike] applied Miller-El persua- that is explanation 196 not demand an L.Ed.2d (2005). sive, long so as the plausible; or even Supreme Miller-El Court discriminatory, it inherently reason is not applied test the context of address- *12 suffices.” Id. at 973-74. explanation any way any And even neutral waives prosecutor’s perception venireper- complaint future that the State’s reasons merely son is motivated, based on a racially race-neutral were and leaves noth- hunch, sense,” or on race-neutral ing “horse for this Court to review.” v. State Morrow, (Mo. the strike may be made. State v. Taylor, 944 S.W.2d banc (Mo. 1997). Thus, 968 S.W.2d banc Un- majority’s holdings relat- fortunately, too, principles these omit- ing venirepersons are C.N. and V.G. are in from majority’s analysis. ted direct prece- contravention of this Court’s dent. failing Yet majority’s another is the
methodology comparing each stricken remaining As for the three venireper- venireperson venireper- to non-stricken sons, close review of the record shows sons to determine whether non-stricken that none were improperly stricken: venirepersons similarly were situated to Venireperson 1. C.W. that, quite those stricken. It is evident The state offered several race-neutral case, majority cherry each indi- picked (1) for striking reasons C.W.: She was vidual characteristics from a number of visibly distracted voir dire during and was (who venirepersons non-stricken oth- were distracting by other venirepersons not tak- different) erwise completely and then con- (2) ing process seriously; voir dire her cluded that the sum of those characteris- phone throughout cell was ringing pro- tics is equivalent single similarly of a (3) cess; and she maintained that it would venireperson. situated This amalgamation hardship be an unreasonable to her em- venirepersons super- of to create a sort of ployer be without her service for the venireperson can then be used for of point, duration the trial. that last On comparison completely incongruous with explained she had did not that she want to analysis purports employ. While be on the because she needed her to several of the non-stricken venirepersons fulfill her duties as area manager. an shared individual characteristics with the are, course, These race neutral reasons venirepersons stricken human be- —as striking for C.W. ing majority’s would!—the methodology According majority, however, not to the does show that stricken and non- ven- ireperson similarly S.R. was “similarly stricken sit- situated but not way gives uated” real stricken. record does not bear that term out meaning. that conclusion. S.R. maintained that she did not want absent from to be work Finally, majority inexplicably fails to employer going when her through was acknowledge that McFadden did not chal- audit, but the trial court determined that lenge striking reasons two state’s for place was until audit not to take well venirepersons, C.N. As and V.G. after the was over. C.W. well clear, right this Court made has “the rightfully have been concerned about her racially criminal to challenge defendants employer, but had no S.R. should have prosecutor” motivated strikes Furthermore, concern about hers. unlike ... “predicated upon the defendant’s time- C.W., the situation with there was no com- Parker, objection.” ly v. plaint that S.R. was distracted and that (Mo. 1992) 930, 934 (citing banc cell-phone during ringing pro- 79, 96-99, Kentucky, 476 ceedings. (1986)). “A defen- L.Ed.2d challenge Venireperson dant’s failure to race- State’s M.B. able to ought state reasons for she believed the
The state’s race-neutral pretext. striking proof were that: some This is no produce. M.B. she had case; connection with witness in the Venireperson W.S. questions accomplice she had several race-neutral reasons state’s liability been *13 (1) appeared that: he striking W.S. were (3) resolve; able to she was familiar with to unwilling confused and be agitated, Pine Lawn area the murder the where (2) slept during portions of present; he (4) occurred; expectations of sci- (3) dire; confused appeared he over voir appeal, too On high. entific evidence were witnesses; to he conflicting how handle prosecutor the state now concedes that the Lawn, express Pine but failed to lived near the reason misspoke offering second Lawn; he familiarity Pine his with concerning accomplice he liability and that nephews, to talk about his refused venireper- M.B. another had confused with The state’s were law enforcement officers. son. asleep second reason —that W.S. —is reason, the M.B. Regarding state’s first the justify alone to strike. sufficient that she knew a relative of had indicated much, fact, majority acknowledges as the majority potential state’s witness. sleeping but concludes that W.S.’s then argu- found fault with this first reason examining the must discounted “when any part that bias on the due ing M.B. in a No larger facts of the case context.” to the her connection with witness would found, however, holds, is that even case argument favor the state. This is self- context,” juror sleeping that a “larger the defeating. If in fa- M.B. could be biased subject always not to a is vor party, it follows that this bias strike, fact, juror sleeping is non-pretextu- could serve as race-neutral subject proper most of a strike often al to reason for state strike M.B. for cause. majority expla- third dismisses the sleeping prob- Even without by claiming nation were “five there lem, of the other reasons for each state’s possessed white who also independently strike sufficient were familiarity with the area of the crime [but majority first ad- justify the strike. The jury.” not struck who] were from dresses the state’s concern over W.S.’s However, similarly persons these not agitation by simply stating and confusion because, M.B., situated unlike none that “there no indication that W.S.’s Pine “present knowledge” them had of the ability impaired confusion would have Lawn area. juror.” given as a But the trial court’s Finally, majority claims point relating superior vantage on matters pretextual state’s fourth reason is because demeanor, Court venireperson’s this high expectations concerning M.B.’s scien- must court’s determina- defer only strengthen the tific evidence “would demeanor was tion. And even W.S.’s credibility evi- fingerprint State’s appeared fact agitated, that he linking dence McFadden to crime.” concerning the role confused point altogether. misses the As This a valid race-neutral reason for certainly was little sci- explained, there him. striking linking to the appellant entific evidence M.B., Then, crime, majority sug- that M.B. would as with he was fearful familiarity Pine Lawn gests she have un- with “expect more”—that pretextual striking reason for expectations about the evidence area was realistic However, just M.B., W.S. as with the ma- Rodney again GLASS,
jority exactly fails to and Diane explain how similarly Respondents, W.S. was situated the veni- with repersons who were familiar Pine Lawn and who were not stricken. BANK FIRST NATIONAL OF
Finally, regarding the fifth state’s rea- LOUIS, Appellant. ST. refusal nephews’ son—W.S.’s to discuss his No. SC 87244. experience majority law enforcement —the that, Missouri, if anything, concludes “his Supreme attitude Court of law appears toward enforcement En Banc.
generally positive” and that “such atti- *14 May 2006. usually tude is favorable to the state’s Rehearing Denied June position.” conclusion, course, This speculation, and it may well be W.S.’s
refusal may discuss the matter by some
caused dissatisfaction event,
nephews’ experience. concern
state’s that a venireperson way
biased one or toward another law
enforcement is a valid race-neutral reason striking a venireperson.
II.
Although I am concerned that five out of stricken, venirepersons
six black I
though agree disproportion- that such a of minority
ate removal can discriminatory intent,
be an inference of
that inference alone will facial- not convert
ly explanations neutral into Batson viola- Parker,
tions. S.W.2d at For stated, explanations
the reasons the state’s
for its strikes were “inher-
ently discriminatory.” I hold that deny-
the trial court did not clearly err
ing challenges, the Batson I and would judgment.
affirm the