State v. Smulls

Missouri, Respondent, STATE of SMULLS, Appellant.

Herbert 75511.

No. Missouri,

Supreme Court

En Banc.

June 1996. Rehearing Overruled

Motion for

Opinion Modified Courts Own Nov.

Motion

13 appointment make

customers would early July jewelry for sale. examine “Jeffrey 1991, person identifying himself and made an the Honickmans Taylor” called “Jeffrey buy a diamond. appointment as defendant. Taylor” later identified Norman July defendant On store. After to the Honickmans’ Brown went diamonds, defendant viewing several making pur- left the store without Brown chase. July defen- On the afternoon Defender, Swift, Asst. Public William J. Brown followed another and Norman dant

Columbia, Appellant. Honick- the store. Florence customer into any jewelry at them man was unable show Nixon, Attorney (Jay)W. Gener- Jeremiah suggested might she be able that time but al, Morris, Attorney Assistant Gen- John M. Brown re- and help them later. Defendant eral, City, Respondent. for Jefferson After evening. view- turned to the store that Anderson, Cohen, Darryl Bruce C. St. J. diamonds, and Brown ing some defendant Louis, American Postal for amicus curiae hallway, purportedly to discuss into a went AFL-CIO. Workers Union later, prices. A short time the diamond Director, Frey, Barbara A. Executive Min- up looked and saw de- Florence Honickman MN, Wilson, Washington neapolis, Richard pistol then ran aiming a at her. She fendant Law, University, College American The a fired and hid door. Defendant behind DC, University Washington, Popper, Robert her, striking arm and side. at her three shots Law, City of Missouri-Kansas School at shots Ste- Defendant then fired several City, for Ad- Kansas amici curiae Minnesota Honickman, was three phen who struck Rights for Human and The Interna- vocates jewelry and Brown stole times. Defendant Rights Washing- tional Law Clinic of Human by and other Florence Honickman worn College of ton Law. in two men left the store. After the items store, contacted Florence Honickman WHITE, Judge. died from his police. Stephen Honickman degree first juryA convicted defendant of wounds, Florence Honickman suffered and murder and other crimes. Defendant injuries permanent from attack. to death for the murder conviction. sentenced robbery, police A time after the short post-con- Rule 29.15 motion for Defendant’s speeding. Brown for stopped defendant This Court has viction relief was overruled. standing the rear of defendant was While Const, appellate jurisdiction. Mo. exclusive car, a radio police heard officer V, judgments § The entered on de- art. describing the men who robbed broadcast af- convictions and sentence are fendant’s Defendant the Honickmans’ store. judgment firmed. The entered defen- descriptions. The officer or- fit the Brown and the dant’s Rule 29.15 motion reversed ground. De- lie on the dered defendant proceedings. remanded for further cause appre- car ran from his but fendant then hiding service road. while near a hended I. jewelry and other stolen police The found light This in the facts Court reviews in the car and from the store items the verdict. State most favorable to following morning possession. The Brown’s 1993), Shurn, bane of the pistol police shoulder found - U.S.-, denied, being prior to drove road on which defendant Bullets fired from speeding. test stopped for from the recovered pistol matched bullets Stephen owned the and Florence Honickman Stephen Honickman. operated jewelry Typically, store business. charged degree Defendant was with first explanation peremptory challenge. for the murder, assault, degree prosecutor accept- first two counts of Id. If the articulates an degree robbery reasons, first two counts armed able reason or a defendant must subsequently criminal action. prove proffered merely pre- The State reason was an filed information in lieu and, fact, of indictment racially textual the strike was charging defendant with the six offenses and motivated. Id. prior, persistent as and class X offender. objected prosecutor’s jury guilty The found defendant of first de- challenge venireperson Sidney violating gree robbery of Florence Honickman but Sidney Batson and identified Ms. as African- failed to reach a as to remaining verdict prosecutor gave American. The then retrial, Upon jury counts. found defen- following explanation challenge: for the guilty remaining dant of the five counts.1 Judge, I made nine strikes. I strike did penalty hearing, After the recom- who, juror Sidney guess, I Ms. penalty. mended the death My record was a black female. reasons sentenced death defendant to for the murder striking Sidney are both Ms. based count and impris- to concurrent terms of life upon during Iwhat observed our voir dire remaining onment for each counts. my upon experience trying and based pro Defendant filed a se and amended Rule lawsuits, criminal which has exceeded post-conviction

29.15 motion for relief. The including in this cases courthouse several motion court denied certain claims defen- years cases before this Court in the nine evidentiary hearing dant without and de- prosecuting attorney. have been remaining nied the claims after an evidentia- Sidney yes- My began concerns with Ms. ry hearing. appealed Defendant then to this terday. Sidney very during Ms. was silent appeal Court. pending, While was questioning. all at of I.observed one temporary State filed a motion for remand to point my during questioning concerning ” “gender findings. Batson penalty glare on the death a her face as I This Court sustained the State’s motion and questioning that area. She was seated temporarily the cause was remanded to the row, believe, yesterday. in I the back hearing, trial court. After a the trial court directly IWhen looked at her and asked found the reasons offered the State were question, last she her that row a averted pretextual. not my eyes question and wouldn’t answer very wouldn’t look at me. That made me II. nervous. prosecu Defendant first only get I out response The was able to tor a peremptory against exercised strike today Sidney of Ms. was when I asked her venireperson Sidney, pro in violation of the occupation. about her At first she re- Kentucky, in hibition Batson v. a sponded though[t] very with Iwhat 1712, 1719, 106 S.Ct. 90 L.Ed.2d 69 indicated that she is irritated answer. She (1986).2 Equal The Protection Clause Company. a mail sorter for Monsanto prohibits using United States Constitution for, said, That she mail I believe she sorts peremptory jurors strikes to exclude on the people. And her husband works for basis of race. Id. To a claim establish under post office. And I believe she listed Batson, object pros a defendant must a him as custodian. peremptory challenge ecutor’s use as violating identify cognizable my experience Batson and been in the nine It’s group years which that I venireper- prosecutor racial the stricken that been a I’ve Shum, belongs. mail people son S.W.2d at 456. treat who work as sorters and carriers, people provide The State must then a race-neutral letter carriers and mail noted, degree arguments 1. A Norman Brown of first convicted Unless otherwise trial, murder, assault, degree arising during first two counts of first his second address issues degree robbery and two counts of armed crimi- Brown, State nal action. v. 901 S.W.2d 260 (Mo.App.1995). Weaver, 912 clearly State v. erroneous. Office with who work for U.S. Post 1995). general- The suspicion they banc great that have my clearly only if ly experience many finding of the trials erroneous court’s —in very un- disgruntled, reviewing I’ve had —are with a definite that court is left system and make happy people with the made. a mistake has been firm conviction every effort to strike back. Gray, 887 State — cert, U.S.-, 1994), my experience prosecutor, as a 1414,131 of the Review had cases trying cases where I’ve several prosecutor’s stated people jury, had them transcript and left mail reveals categories; rea- hung jury. general in a The result most recent into two reasons fall general which was a murder case in court- and reasons based on demeanor sons September, last versus Dana Sidney’s occupation. house based on Ms. (phonetically) a mail carrier Ruff where included general demeanor reasons hung jury in that was the holdout for first remaining for the Sidney silent Ms. case. dire, “glare her had a day of voir she em- I also have several in-laws who are questioning regarding during face” postal department ployees even prose- penalty, responded to the death she relatives, I though they are somewhat occupation regarding her question cutor’s I opinion of them. share same So answer, general and her an “irritated” with great suspicion. them treat This including her attire. led attitude just glared me she at her When abe she would not prosecutor believe attitude, general which included her out- State, juror particularly when good for the believe, yesterday, fit—which I included a penalty. considering the death Reasons today cap beret and was a ball with se- support found such as these have been it, just quins on that felt she wouldn’t be clearly not err ruling that a trial court did juror. Certainly, good (cid:127)a state[’]s prosecutor by finding a did discriminate death, juror strong in the consideration challenges. peremptory in the exercise of part get should we of the trial. Weaver, 508-10; Gray, 887 point And also I would out for Court 456; 384; Slmm, 866 at S.W.2d at S.W.2d juror I eight, that struck number Dil- Ms. 360, Pullen, v. 363 State 843 very I her lard. struck for the same rea- cert, denied, 871, 1992), 114 510 U.S. bane in that she a letter carrier and son is (1993). 200, 158 126 L.Ed.2d S.Ct. delivering though[t] works mail. And I her attitude was also confrontational. And argu majority of The not were did feel her answers ones for prosecutor’s reasons on the ment focuses give believing to me she that would rise occupa striking Sidney because of her Ms. juror. strong state[’]s would be a “postal the work tion. Defendant contends Dillard, out, point Ms. I would is white prose explanation pretextual. The er” virtually And I struck her for the female. mail sorters he viewed cutor stated experience my reasons. It’s been same great suspicion” be postal workers “with postal on that when I left workers who unhappy he them with cause considers attitude, my to have based seem strike they every effort to system and make interpretation, that I’ve had bad results. has prosecutor stated he also back. The why that’s I struck her. And hung juries resulting in many tried cases argued prosecutor’s rea- then jury. Finally, the people” “mail racially pretextual motivated. sons were in-laws he had several prosecutor asserted The Batson trial court overruled defendant’s he employees and shares postal who are objection. legitimate A reason opinion of them. same challenges not exercising peremptory is reviewing

A court will set aside for one “that does makes sense” but finding regarding whether the one “that trial court’s v. deny equal protection.” Purkett of a not prosecutor discriminated the exercise — 1769, Elem, -,-, 115 challenge finding only if the U.S. peremptory 16

1771, (1995). port requested hearing Even assum- of remand but ing prosecutor’s challenging judge. reasons for held before a different Court This mail postal request change sorters and for workers are non- denied defendant’s sensical, judge. request this does not establish the Defendant then renewed the reasons inherently pretextual. disqualify compan in a motion to filed are judge ion motion to have another hear the addition, prosecutor struck Ms. disqualify. judge motion to The trial refused Dillard, similarly venireper- situated white to entertain either motion based on this analysis son. “Crucial to whether change Court’s denial of in the similarly venirepersons situated white es remand order. Defendant Weaver, caped challenge.” the state’s 912 judge impartial could not conduct a fair and S.W.2d at 509. The court did not clear conduct, hearing 29.15 because of Rule he ly by overruling err defendant’s Batson ob gender dismissed defense counsel’s Batson jection. objections without tri consideration both als, judgment against and he had a him for III. gender discrimination. See Goodwin v. County Circuit Court St. Louis & William Appellant claims court erred in Corrigan, (E.D.Mo.1982), F.Supp. M. refusing require prosecutor provide Judge Corrigan toas and vacated as to gender explanations peremp neutral for his aff'd Court, (8th Cir.), Circuit F.2d tory trials, against strikes women. At both denied, Goodwin, Corrigan cert. v. 469 U.S. objected prosecution’s defense counsel to the (1984). 828, 112, 105 S.Ct. 83 L.Ed.2d 55 peremptory against use strikes female venirepersons. The trial court did not re arguments concerning Defendant’s quire prosecution any explana to offer allege the court’s 29.15 racial Rule conduct tion for the strikes. After trials while bias, gender They support do not bias. appeal pending, the United States gender pur claim of unfairness Batson Supreme peremptory Court decided strikes poses. neutral, require The refusal to non- gender upon based were impermissible. pretextual peremptory reasons strikes of T.B., 127, v. J.E.B. Alabama ex rel. justify at trial disqualifi women also fails to 114 S.Ct. 128 L.Ed.2d 89 Sub judge. Although cation of the the court’s sequently, this Court sustained State’s rulings response indicate slow winds temporary motion for a remand to the circuit judicial change, gender Batson was gender court for a hearing. Batson The trial law at the See time of trials. gender hearing Sep held a Batson Parker, banc), tember, hearing After the State’s ex U.S. planations peremptory for strikes of each (1992) J., (Benton, concurring) 566 L.Ed.2d woman, the found the reasons offered (noting Supreme the United States Court gender the State to be neutral and not gender could hear a Batson case in next the court, therefore, pretextual. The overruled term). objections. gender defendant’s based Batson judgment Defendant a 1982 points on appeal Defendant raises three against judge discriminating for gender from ruling. the Batson He asserts against employee a female on the of sex basis hearing procedurally the deficient be- fairly him incapable considering renders of judge cause the trial did not recuse and gender of during jury claims discrimination because not to defendant was allowed attend In selection. Goodwin v. Circuit Court St. of hearing. ruling the He also attacks the (8th Cir.), County, Louis F.2d 541 729 merits, claiming prosecutor’s prof- the the Goodwin, 828, Corrigan v. 469 U.S. explanation fered for the strikes evidenced (1984), 112, 105 the gender discrimination. Eighth suffi Circuit there was determined jury finding tempo support

When its motion for of the State filed cient evidence to a rary gender plain to hold a hear or to remand Batson intentional reckless indifference ing, suggestions in sup right defendant submitted tiffs to be free from sex discrimination. against to defend opportunity of personnel from decision fullness The action arose a Goodwin, Gagnon, v. charge....” made in 1979. 555 the United States judge the 1482, 1484, 522, 526, argument re- 105 S.Ct. F.Supp. 661. Defendant’s 470 U.S. (1985) assumption judge’s Snyder v. (quoting discrimina- Mas- quires L.Ed.2d 330, capacity 105-06, tory sachusetts, 97, in an conduct administrative years necessarily him (1934)). earlier makes sixteen L.Ed. 674 judge to reasons unable whether State’s striking jurors pretextual. The as-

for were hearing present gender Batson sumption proof if of actual bias is overbroad to or evidence ed no witnesses confront necessary disqualification of require were therefore, defendant; against test, however, a judge. The is whether a right to witnesses Amendment confront Sixth person have factual reasonable would the Court Gagnon, violated. not impropriety grounds appearance to find an determined from an in defendant’s absence impartiality of the court. and doubt judge, ju camera conference between Nunley, 923 ror, attorney did not violate and defendants’ 1996) (citing rel. State ex Wesolich v. process have due because defendants “could Goeke, (Mo.App.1990)). they nothing at the confer done had been person question A arise to whether a could ence, they gained anything nor would have guilty found sex who had been discrimina- by attending.” Id. at S.Ct. at 1484 gender able to discrim- tion would be discern McFerron, 85; See also State v. peremptory ination the State’s strikes. Gagnon (applying (Mo.App.1995) appears person But it reasonable would ju voir examination two sidebar dire passage judg- time look since rors). whole, Looking as a at the record ment, personnel the difference deci- between analysis gender here. The Bat- applies same judging, task of decide one sions hearing to examine the son was conducted punished had for sex who been discrimina- peremptory chal reasons the State’s past tion in the would be more sensitive to venirepersons to lenges of female determine problem recognize it if the State they concealing pretexts dis whether were engaged it. criminatory require It did intent. not defen of the On basis Rule 29.15 racial bias input nor it call for decision or dant’s did allegations, anticipate the fu- failure had from Defendant reaction defendant. gender requirements, ture Batson and the gain presence nothing to do from his year judg- old sex thirteen discrimination by denying the there. The court did not err ment, a reasonable would not doubt request. conducting impartiality of the court gender hearing. Because the motion Batson challenges gender substantively disqualify was insufficient to merits, hearing ruling arguing Batson require disqualification did contain given peremptory the reasons State’s necessitating controverted facts venirepersons of female were strikes required grant testify, the court was not gender neutral. The court’s determination hearing motion for a before another peremptory strikes were exercised whether judge on matter. State ex rel. Weso See grounds question of fact permissible a lich, 794 at 699. S.W.2d appeal. Gray, great to deference on entitled Batson, (citing 476 887 at 385 U.S. S.W.2d point, his defendant ar second 21); 21, n. v. 98 n. at 1724 S.Ct. right present gues his constitutional be (Mo. 1987), Antwine, bane during phases all violated his 1017, 108 S.Ct. 486 U.S. writ petition denied his for when court discussed, the 100 L.Ed.2d 217 As ad A defen corpus habeas testificandum. clearly found erroneous determination will be has a dant Sixth Amendment Confrontation only reviewing left with the if the court is right present, process to be and a due Clause has a mistake presence and firm conviction present, be definite right to “whenever substantial, relation, Gray, S.W.2d at 385. reasonably been made. a has The State offered for reasons and would follow the law as submitted peremptory venireperson. jury strikes of each instructions. original State used seven its nine A right impar defendant’s to an peremptory venirepersons strikes on female tial is violated when a trial court excuses trial. appeal each Defendant on chal venirepersons they express objec because lenges given the reasons for five strikes penalty. Wainwright tions to the death prose retrial two in and the first trial. The Witt, 412, 416, 105 844, 848, gave following cutor reasons (1985); Storey, State v. (1) venireperson strikes: was an Uhknansiek 1995). Prospec banc employee of a defense law firm and seemed jurors may tive be excused cause if their (2) very opinionated; venireperson ap Wahl penalty views the death would substantial peared times, confused at was the wife impair ly ability their to follow the law. lawyer, personal injury of a prosecu and the 425-26, Wainwright, 469 U.S. at 105 S.Ct. at regarded “typical tor her as a resi Ladue 852-53; Storey, 901 Appel S.W.2d at 892. (3) dent, liberal;” venireperson affluent and ruling late courts review a trial court’s to a McGregor was unemployed and a son had challenge only for cause for abuse of discre daughter-in-law who were both attor Storey, tion. 901 S.W.2d at 892. (4) neys; as venireperson Sidney discussed

displayed negative Katzenberger Ms. stated she could demeanor and was em (5) sorter; not envision situation ployed venireperson a mail where she would as impose penalty the death and she was in Clover had close relatives who been had automatically charged imprison clined vote for life with criminal offenses and she was Mr. driver, ment. Ott stated he did not employed occupa as a believe the school bus penalty fairly, prosecutor regarded death was administered involving tion the he as (6) skill; problem high penalty had moral death venireperson but stress low he “99 unemployed would be to one to vote for Johns was life her son (7) officer; imprisonment parole.” without Ms. correctional Dickens alternate venire- religious stated because of her perceived being Backhues was beliefs she very juror. impose would be penalty weak death unable death penalty regardless of the circumstances she did pre- Defendant these reasons were believe in penalty. the death venireper- textual because some of the struck emphasizes other statements gave testimony suggesting they sons could venirepersons arguably these three indi- good jurors, have venirepersons been State’s they cate would follow A trial the law. struck, high with both and low income were opportunity totality has the evaluate employed by attorneys women or related to venireperson’s verbal and nonverbal re- legal were struck because their connec- Isa, sponses. State v. though attorney tions even men who had 1993). places This the trial court retained, inappropriate friends were and the superior position in a a determina- make feminine, objected attire to was not mascu- challenge as to a Id. tion for cause. Review hearing line. After State’s reasons and transcript of the does not reflect pretext arguments, de- the court by excusing court abused its discretion veni- gender termined the State’s reasons were Katzenberger, repersons Ott and Dickens for ruling neutral. This Court does not find the cause. clearly gender Bat- erroneous. Defendant’s points

son are denied. Venirepersons Clayton Whalen and they require both indicated would the State

IV. higher to meet a burden than reasonable argues penalty also erred death Defendant court doubt because the could be by excusing venirepersons imposed. venireperson expresses for A cause Katzen- who an Ott, Whalen, berger, Clayton inability using guilt appro and Dickens. to determine venirepersons priate penal all in- death proof Defendant asserts these burden of when the they ty imposed may penalty dicated could consider the death can be be excused cause. determining whether a Gray, 382-83. Defendant em- broad discretion 887 S.W.2d at and, absent a arguably jury panel that indicate should dismissed phasizes statements discretion, ap- ruling its should not venirepersons apply would abuse of these two clear proof. Again, appeal. trial Id. propriate burden of be disturbed superior position in a court is Mr. Hirsch’s statement re Prior to totality venireperson’s non- of the verbal and of the knowledge of facts garding his Isa, responses. at 889. verbal 850 S.W.2d case, panel prosecutor informed the its discretion. The trial court did abuse background Hirseh’s of the cáse. Mr. Gray, 887 S.W.2d at 382-83. knowledge merely regarding his statement to the prosecutor’s information reflected the V. panel and also consistent with evi plain- also trial court Defendant state presented at trial. Mr. Hirsch’s dence ly by failing quash panel erred the venire simply regarding punishment were ex ments venireperson already after a who had been panel personal opinion and other pressions of to remain on stricken for cause was allowed expressed on the their views members also panel improper and make comments. A to individ defendant is not entitled issue. improper contends the comments State v. penalty dire in death cases. ual voir prevent prejudicial were as to defendant so (Mo. banc), McMillin, cert. 783 S.W.2d obtaining a from fair trial. 225, denied, 498 U.S. dire, During venirepersons were voir Mr. Hirsch’s statements questioned regarding first ser whether right to a infringe on defendant’s fair did hardship, be a a personal vice would trial. number were excused for cause on this resumed, ground. After dire defen voir VI. dant’s counsel informed court Mr. Hirsch erred Defendant contends the hardship who been still had excused objection to the by overruling defendant’s panel seated the other members. The with entering evidence presenting and into State it court stated take care of later.” “[w]e’ll car when two knives found defendant’s object. Defendant’s counsel did not introduced, over he was arrested. The State prosecutor questioned panel regard then objection, envelope containing defendant’s ing knowledge their facts of the case. from car after items recovered Mr. “I heard a Hirsch stated of husband police A testified the en- his arrest. officer jewelry wife store owners and the husband rope, velope pieces two of white a contained being I’m not shot killed. sure what cigarette lighter, key, plates, loose license happened any wife. haven’t formed change the two knives issue. The opinions I vaguely and that’s all remember.” the knives as steak knife officer described questioned punishment, When about Mr. pocket knife. folding and a Hirsch stated he “would find it difficult give imprisonment life to someone who inten ruling Review of the court’s tionally killed and he would be someone” exhibit is regarding to admit the whether pro-death pro-life.” “more than determining if the trial court limited Silvey, v. its State prevail For under abused discretion. a defendant 1995). (Mo. weapon A review, injustice banc plain error manifest if usually it tends to justice held admissible miscarriage of have resulted “is must crime, prove alleged To mer connect the defendant from the error. Rule 30.20. deceased, identity the na shows jury panel quashing it the of an entire based wounds, statement, any relevant or throws venireperson’s ture of on a defendant upon any issue.” venireperson’s light material matter must statement establish the 96, 103-04 LaRette, it inflammatory prejudicial v. was “so State bane), right can to fair trial has been be said (1983); Reyes, Evans, 507, 262, State v.

infringed.” 78 L.Ed.2d 802 S.W.2d If 1991). (Mo.App.1987). court has The trial motive, malice, intent, weapon allegedly demonstrates Brown. Brown asked Shelton knowledge preparation, may or then it be whether she knew someone who wanted to Evans, into received evidence. State v. 287 buy jewelry. 149, (Mo.1951); Reyes,

S.W.2d The trial held and court Parker Shelton at 261. testify could not as to the statements de- Although pre there was no during hearing jury. evidence scribed the outside the demonstrating the During trial, sented knives actual were the second defendant renewed crimes, ly during a used the could con proof proposed offers of the testimo- clude the knives constituted evidence of ny of Parker Shelton. The trial and preparation. The two knives could have its ruling stated this issue would be the rope, been used to cut the white if the vic during same as the first trial. up, open

tims were tied or been used to a Chambers, Before Missouri courts consis- desk or If weapon locked door. a demon tently against penal held declarations preparation, may strates it into received interests of an unavailable witness were not preparation evidence. Id3 Defendant’s exception hearsay admissible as an to issue, crime was a material matter in and proceedings. rule criminal v. Blank- State the trial court did abuse its discretion. 1992). enship, 830 S.W.2d except The rule has not been modified VII. required by extent Chambers. Id. at 6-7. also the trial court’s ex- Chambers, In was on defendant testimony by clusion of Terrence Parker and police sought for the murder of officer regarding Shelton purported Michelle state- testimony to introduce three wit- by ments Norman Brown violated defen- shortly Each nesses. witness claimed after process rights. dant’s due Defendant con- person the murder that a than other Brown’s tends statements were declarations defendant, McDonald, kill- Gable admitted to against penal interest were admissible in Chambers, ing the officer. at 291- Mississippi, evidence under Chambers attempting S.Ct. at 1043-45. Prior to U.S. L.Ed.2d witnesses, to call the three McDonald was by signing called the defense and admitted During the first before defendant During confession to the murder. cross-ex- Shelton, objected Parker or called the State State, by repudiated amination McDonald anticipated testimony wit- the two sought his confession. When the defendant nesses. The trial court decided to hear the question regarding McDonald the oral testimony pres- two witnesses’ outside the witnesses, statements made to the three jury. ence of the Parker he testified met objected attempting defendant Brown Norman between October 1991 and impeach his own witness. The trial court January 1992 at Gumbo Correctional Center. objection. Id. sustained at “they also Parker testified Brown told him at 1043. apartment” was in some kind of Brown pulled gun According Supreme to Par- fired. The United States Court noted ker, witnesses, Brown also said defendant and another the statements of the three if ad- person believed, shooting were with him when the mitted and would have exonerated telling occurred. Parker admitted originally the defendant and “were made and prosecutor’s subsequently from the office that said Brown offered at trial under circum- pistol. fired provided defendant Shelton testified stances that assurance considerable 300-02, reliability.” she knew defendant and Brown and “three of their Id. at 93 S.Ct. at 1048-49; days prior being Blankenship, a week” the crimes at 7. The reliability committed she had conversation indicators identified Reyes misplaced. occupants acting reliance There also Defendant's were concert. case, weapon found front under the connecting no the defendant to the evidence a car seat of in which defendant was a Reyes, knife. 262-63. passenger and no there was evidence the car’s

21 (1) this contends evidence would ry. was “in a Defendant each confession Court were: jewelry store self-incriminatory un- establish defendant went very real sense jewelry (2) to interest;” the sale of Brown’s against each to coordinate questionably state- However, Brown’s state- Honickmans. spontaneously close ment was made very self- simply not “in a real sense shortly oc- ment is acquaintance after the murder against in- (8) unquestionably curred; incriminatory and corrobo- statements were Chambers, 301-02, 93 300-01, 410 U.S. at at 93 terest.” rated other evidence. Id. 1048-49; 1048-49; Blankenship, 830 S.W.2d at Blankenship, at 830 S.Ct. S.W.2d Brown told her did not state to admit the at 7-8. Shelton at 7. The Court ruled failure statements, jewelry he wanted to sell was stolen. testimony regarding McDonald’s testimony was not admissible permit The excluded along with the failure to the defen- ruling in McDonald, Court’s Chambers. based dant to cross-examine denied 302, by excluding did not err right to a fair Id. at The court defendant his trial. testimony. Parker’s and Shelton’s 93 S.Ct. at 1049. Chambers, “the After this Court noted VIII. dangers opening door to ex- inherent in trial court Defendant asserts the trajudicial by one not a confessions made by permitting prosecutor to plainly erred proceeding” party and cautioned during improper statements beyond make various against opening the doors the facts Turner, guilt pen closing argument for both presented in 623 Chambers. State v. rarely (Mo. 1981), denied, grant A 4, alty phases. court should S.W.2d 9 banc cert. on a 1982, plain error based 931, relief assertions U.S. 102 S.Ct. 72 L.Ed.2d 448 (1982). closing argu prosecutor’s during statements The reason for this caution is the “because, objection, absent an an ment uncorroborated out-of-court confession of options are invited inter court’s limited an unavailable witness offered in a criminal case summation, which increases evoking ference often occurs under circumstances 897; Storey, risk of error.” suspicion regarding reliability. its S.W.2d Blanken- Parker, See also State 886 S.W.2d ship, 830 at 7. — 1994), denied, banc cert. 923-24 reliability The indicators of found U.S.-, 115 S.Ct. 131 L.Ed.2d present'in are in Chambers not this case.4 (1995); Wise, State v. 879 S.W.2d During proof, offer of he Parker testified — 1994), U.S.-, met Norman Brown between October Be- January 1992 at Gumbo Correctional object, any is cause defendant failed to error Center and the two men were both inmates Wise, 516; deemed waived. S.W.2d at “in area.” Parker did the same testified he McMillin, at 93. re- Gratuitous meeting jail. know him Brown before plain no error. view reveals fact “in The the two men were the same area” does not establish the two men were IX. only re acquaintances. close Parker could also the trial court Defendant contends member Brown made the statements “some by submitting Instruction plainly erred year.” crimes committed time last The were during guilt phase. instruction is This July 27, best, 1991. At Brown’s state provides, based on MAI-CR3d 313.04 and to Parker made in October ments were you guilty part: “If do find the defendant two which more than months after degree, you in the must con- of murder first no also other crimes occurred. There is guilty he is murder sider whether corroborating evidence statements. in- degree.” second offense, greater emphasizes if testified Brown asked her struction

Shelton instruction, buy “acquittal first” and coerced jewel- she knew someone who wanted Turner, testify. stipulated if ered unavailable 4. The State Norman Brown testify right against he called to would invoke his at 9. therefore, is, Brown consid- self-incrimination. defendant, jury’s According your verdict. note. at this time cannot is, therefore, respond the instruction unconstitutional. to it.” previously rejected This has Court defen- Defendant note first contends the demon- argument regarding dant’s this instruction. jury pri- strates the had punishment decided Parker, 923; Wise, 886 S.W.2d at 879 S.W.2d to hearing penalty phase or evidence. De- at 517. speculative. fendant’s contention is at best jurors’ fact The the note reflected the con- Defendant also asserts the cern when the “both verdict read times” plainly by permitting prose court erred the simply jurors does not establish the had al- argue jury cutor it to the could not consid ready punishment. decided degree er the second murder un instruction jurors’ Defendant also contends the con- they less found not guilty defendant first about being cern their names available to degree prosecutor murder. The told the they defendant evidenced for death voted jury charge it could not consider the lesser they safety for if they because feared their you agree “unless and until all that the de impose penalty. not death did the This con- is guilty fendant not of murder in the first speculative. just tention is also It degree.” prosecutor’s statement con jurors’ reasonable to assume the fear for instruction, language sistent with the in the safety actually by their enhanced their plainly and the court not Par did err. imposition of death penalty. the The trial ker, 886 S.W.2d at 923-24. plainly by failing court did not err to declare jurors’ receiving a mistrial after the note. X. argues Defendant also the trial court erred challenges Defendant also the trial court’s by overruling motion impanel a second defining submission the instructions rea- punishment. jury to determine Defendant given during sonable doubt that were the jury system contends a two reliabili- ensures guilt penalty phases. argues Defendant ty determining appropriate punish- “firmly language convinced” of the in- again ment. also Defendant contends the process. structions violates due This Court jury note indicates punish- had decided repeatedly rejected has argument. prior penalty phase. ment (Mo. Brown, State v. S.W.2d repeatedly This Court has held Missouri’s — bane), U.S.- , statutory scheme, providing single jury guilt punishment to determine in a first trial, degree any murder does violate XI. Wise, protections. constitutional argues discussed, Defendant court at 514. As the note does not plainly by failing erred to declare a mistrial jury punishment pri- reflect had decided jury after a note from the indicated the phase penalty hearing. or to the The trial jurors safety. about by were concerned their overruling court did not err defendant’s jurors deliberating during While the jury were separate during penalty motion for a guilt phase, they following sent the note phase. trial court: XII. security precautions We want to know the Defendant plainly trial court that in the court when will taken room by permitting present erred State verdict read both times and this is after during penalty phase regarding evidence over will Mends of the be al- defendant prior conviction for second de- jury. anyway lowed see the Was there gree robbery. challenges the tes- our or names address were available timony describing the crime but facts of the defendant. object testimony trial. did to this at suggested The trial court and defendant’s agreed jury phase, sending During penalty counsel to the court reply jury may act properly that stated has received consider “[t]he aggravating circumstances defendant’s The found that demonstrates the defendant (4), (11), 565.032.2(2), § Brown, 293; existed. character. Chambers, banc RSMo 1994). pri- appropriately weigh “In order to and the Defendant contends submission convictions, the facts those convictions aggravating circum- jury’s on the reliance may Whitfield, help.” State v. 837 S.W.2d stances, the murder was committed 1992). However, commit- gain and murder was pecuniary a “mini-trial” penalty phase should robbery during perpetration of was the ted prior Id. regarding the convictions. claims use of these improper. Defendant permitted aggravators the improperly two the evidence Defendant contends underlying effectively the jury to use same by a “mini- presented the State constituted aggravating circum- facts to find the two prior robbery trial” conviction. of argument has been re- Defendant’s stances. victim, testimony the presented of the State Griffin, jected by Court. 756 this State neighbor, police officer. The victim’s and denied, 1988), 475, 489 banc cert. S.W.2d by neighbor police testimony and officer the 1113, 109 104 L.Ed.2d S.Ct. very was brief. Review of the limited testi (1989). 1036 mony reveal of the three witnesses does not occurred, argu and mini-trial defendant’s XIV. ment fails. penalty during the Defendant asserts error phase because the trial court refused sub- XIII. instruction, listing nonstatu- mit his non-MAI argues by the trial court erred Defendant pre- This has tory mitigating factors. Court objections overruling motions to strike rejected viously listing the contention “duplicative aggravators.” the submission of nonstatutory mitigating factors constitu- is Chambers, tionally at required. 891 S.W.2d during penal- Instruction submitted the 109; Parker, at Defendant 929. ty phase provided, part: this decision in asks Court reconsider the punishment determining In the to be this but fails to raise a Chambers on issue against the assessed defendant for compelling argument to do so. Defendant’s Honickman, you Stephen of must murder is claim denied. unanimously first one determine whether following aggravating or of cir- more XV. cumstances exist: argues Defendant also Missouri’s death Stephen of 1. Whether murder because penalty scheme unconstitutional Honickman was committed while the de- proportionality this Court’s review inade- engaged attempted fendant was in the prosecutors whether quate, have discretion commission of another unlawful homicide penalty, imposition of to seek the death of Florence Honickman. legitimate penalty the death serves no murdered 2. Whether defendant arguments consistently have interest. These purpose Stephen Honickman of Weaver, 522; rejected. at been S.W.2d receiving money any or other defendant Chambers, Brown, 291; at S.W.2d monetary Stephen from thing of value compel- Defendant offers no 113. Honickman. reconsider, and are ling reason to his claims Stephen of the murder Whether denied. committed while the de- Honickman was engaged perpetration was

fendant XVI. robbery. 565.035.3, § RSMo Pursuant (1) murdered must determine: whether 4. Whether defendant Court influ- imposed under the purpose of death sentence Stephen Honickman passion, prejudice, any or other arbi- concealing attempting or to conceal the ence of (2) finding factor; trary jury’s whether the attempted Honickman. murder Florence 1985), statutory aggravating sup- circumstances is (3) evidence; ported by whether the U.S. disproportionate sentence is excessive or crime, Considering the the evidence similar cases. defendant, penalty imposed is not disproportionate penalties excessive or no There is evidence defendant’s sentence imposed in similar eases. imposed passion, under the influence prejudice, arbitrary other factor. discussed, previously

As XVII. following statutory aggravating found the cir judge erred Stephen cumstances: murder of Honick- overruling original supple- man was committed while defendant was en disqualify mental motions to from gaged attempted in the unlawful homicide of deciding 29.15 defendant’s Rule motion. Honickman; Florence the defendant -mur seeking disqualification addition to tri- Stephen dered purpose Honickman for the of judge, al sought defendant to have a different receiving money any defendant or other judge disqualify hear the motion to thing monetary Stephen value from Hon- sought judge to have hear the motion who ickman; and, Stephen the murder of Honick- Twenty-First never served on the Judicial man was committed while defendant was en acquainted Circuit or who was not with the gaged perpetration robbery. in the of a judge.5 trial 565.032.2(2), (4), (11), § 1986. The RSMo supported jury’s evidence finding Defendant first contends the motion statutory aggravating these three circum disqualify to should have been sustained be stances. judge fairly cause the trial could consider case, “If the taken as a whole is involving claims racial issues that were plainly lacking in circumstances consistent raised in 29.15 defendant’s Rule motion. As with those in similar where cases the death III, part in disquali discussed the test for a penalty imposed, has been then a resentenc- fying person bias is whether a reasonable ing Gray, will be ordered.” 887 S.W.2d at appear would have a factual basis to find an 389. compared The Court has similar cases impropriety ance impartiali doubt n where: (1) the murder was committed while ty of the court. engaged attempted the defendant was in the Among pages the more than one hundred person murder of a other than the murder of defendant’s Rule 29.15 motion is a claim (2) victim; the defendant murdered the vic his trial counsel rendered ineffective assis (3) pecuniary gain; tim for or the murder failing by investigate tance and move to while committed the defendant was com disqualify judge trial on account of racial mitting robbery. 369; Gray, at 887 S.W.2d specific bias. The we is issue consider Wise, 494; Hunter, 879 at v. S.W.2d State judge refusing whether trial in erred (Mo. 1992), denied, 840 S.W.2d 850 banc cert. sustain motion in to recuse the Rule 926, 113 509 U.S. S.Ct. L.Ed.2d 732 29.15 That motion hearing. verified contend (Mo. (1993); Ervin, v. State 835 905 S.W.2d judge ought ed that trial have recused 1992), denied, 954, banc cert. 507 U.S. 113 bias, on account of racial and because he 1368, (1993); S.Ct. 122 L.Ed.2d 746 State v. would be a witness on issue. State v. White, that 1991), 813 862 banc cert. S.W.2d Harris, 953, (Mo.App. denied, 956-57 1193, 1992) (holding presided (1992); judge that the who at Kilgore, v. State (Mo. bane), post-conviction trial should not rule on claims S.W.2d 57 U.S. (1989); judge be as to which the will called as a L.Ed.2d witness). Griffin, 475; Young, State v. request judges saxy vaiy may judges that Defendant’s all from the for different within a cir cuit, is, instance, Twenty-First acquain particular judge Judicial Circuit and those first is, judge disqualified position ted with the the best to determine if recusal is neces- purposes appeal, premature. saiy. Nunley, this Because 917-18 1996). affecting recusal circumstances whether is neces- say, judi- appellate may I never take motion

Defendant’s counsel filed verified anybody or that cause. that is black disqualify the trial cial notice things, eight that or Among only persons the motion claimed or four other one (1) testimony expert offer: persons defendant would are black. Judge Corrigan African-Ameri- that treated I something me that don’t That to is litigants differently than can Caucasians enough wise or think this Court is judge; other cases in which he sat enough unless appellate other court wise (2) testimony of of the another member who is direct evidence as to black there is a racial-

judiciary newspaper accounts of orange and is white and who is who ly derogatory made in 1983 statement any circum- purple. who I do not under (3) accurate; Judge Corrigan were evidence judicial this take stances in division ever filed a motion seek- that defendant’s counsel are people the number of who notice of reporter report in-chambers ing a court I that’s counsel’s re- And believe black. Judge Corrigan had proceedings, and that and who sponsibility prove who is black motion, saying that “he didn’t overruled the who minority is a isn’t. isn’t or who had give [defendant’s counsel] a shit that eomplexioned dark were some There brought reporter,” own court and that [his] jury. I know if that people on don’t subsequently indicating he made statements said, I As makes them black white. reporter. in the bias absence the court don’t know what constitutes black. Years addition, appellate counsel re- say ago they drop of blood used to one minds the of a federal of sexual Court verdict I don’t know what black constitutes black. in which against judge the trial harassment somebody enlighten me of means. Can sexist remarks were attributed to several know; I of is? I don’t think “ what black him, including ‘This Court won’t run people. them as smoothly get g_d_ until we rid of these ” responses I to of the Ms. Sid- listened women.’ Goodwin v. Circuit Court St. of very briefly ney. I watched her attitude (8th County, 729 Louis F.2d Cir. been, may going have and I’m not to as it 1984). alleged in his Defendant further mo- say you Sidney Ms. is sit to that here likely Judge Corrigan that tion would be going I’m not to make a not But black. testify regarding to these called contentions. judgment anybody as whether else to allegations, Those factual while not conclu- was, event, any merely I’m panel the so in bias, sive of defendant’s claim of are made you for the I’d rather telling that record. compelling by the of the trial. record it on the record. even discuss record, According to the defendant’s event, But, any deny to going I’m sought morning the counsel mistrial follow the your a mistrial on basis motion for ing the court’s trial decision overrule de ready proceed? Are stated. we process that fendant’s claim the selection led to Batson. recognized that the all-white violated benefits of has the This Court motion, overruling judge the trial judge presided at rule having the who trial following State, post-conviction offered the comments: v. claims. Thomas 1991). (Mo. banc Never- MS. KRAFT [Defendant’s Counsel]: theless, fundamen- there are occasions when Judge, I believe I stated on the record judge to requires the trial recuse tal fairness my I yesterday when made record that post-conviction proceeding. in a Jackson v. juror Sidney only re- Ms. was the black 1979). State 585 S.W.2d maining out of re- This fundamental fairness is because THE You made that state- COURT: judge free of the quires the trial ment. prejudice against the defen- appearance of Okay. MS. KRAFT: against racial dant an individual as see, prob- I THE You have COURT: is a member. group which the defendant of I know it is to be black. lem. don’t what the issue we address our focus: I what constitutes black. And We restate don’t know trial never, propriety of the Court, here is neither in this no matter what judge’s ruling issue, judge’s gratuitous on the Batson nor The trial statements raise whether itself was tainted. The questions willingness serious about do relevant is judge issue whether requires. what suggest Batson words His should have sustained a motion to recuse on inability hostility taking or notice of a Rule 29.15 motion. The stan- race, venireperson’s no matter how obvious it by dard question which we determine the is is.6 judge actually is preju- whether A should recuse where “the Instead, diced. standard whether judge’s impartiality might reasonably be objective upon there is an basis which a questioned_” 2, Canon Rule 3D. This reasonable could base a doubt about expresses that, rule truth obvious our impartiality the racial trial court. courthouses, judges Judges set the tone. Batson is race-centered standard. The participants. Judges control the define the question threshold race of the chal- of appropriate inappropriate boundaries lenged venireperson. Specifically, the first judges conduct. And make decisions step to be followed when the defendant rights responsibilities par- timely objection makes a Batson is “the de- ticipants litigation. course of challenge fendant must raise a Batson regard or specific venirepersons to one more judges Because control the court identify struck cogniza- the state and room, judicial beyond behavior must be re group ble venireperson racial to which the proach. judges during Conduct of trial that Parker, persons belongs.” bias, questions raises of racial even when the 1992). 5.W.2d bane The trial may relatively conduct seem minor in its court cannot add subtle burdens the Bat- credibility manifestation undermines process by refusing son to take note of race judicial system opens integrity properly places where trial counsel it at is- judicial system question. sue. system always [0]ur law has endeavored in vigilant enforcing Courts must be prevent probability to even the of unfair the prohibit laws of this state and nation that _ Such stringent may ness a rule some prejudice by public overt acts of racial ser by judges times bar trial who no have vants. laws prej Those have not eradicated very actual and do bias who would their Rather, they udice. prejudiced have forced weigh justice best equally to the of scales persons disguise by hiding to their bias be contending parties. per between But to Therefore, neutral-sounding hind language. high way form in its function the best may simply we accept ostensibly not neutral justice satisfy appearance jus must the of language showing prejudice. of absence tice. Statements must be in considered the con Murchison, 133, 136, In re they text in which are offered. (1955) 623, 625, L.Ed. 942 Here, judge trial the made remarks in judge’s challenge. gratuitous the a The remarks context of Batson Batson is understanding not It manifest a lack of of im requires judge race-neutral. the Batson, solely port underlying to of issues of focus his or her attention the and race. language drop Race-neutral one what the codewords of purpose has but “one blood” in setting deny many judicial a Batson the mean in participants effective- to the —to system.7 ness of inquiry. judge the race-focused Batson It is not to the whom we Mulattoes, prosecution Concerning Negroes Both defense counsel and the had Act Free and § challenged stated on the record that RSMo 413-14: venire- person, Sidney, Ms. was black. Every negro, person, a other than of whose grandfathers grandmothers any or one is or drop phrase 7. “One of blood” is an offensive although negro, shall have been a all his or her because it is reminiscent of the manner in which descending progenitors, except other those sought supply negro, slaveholders to increase of persons, from the shall have been white slaves, many legal negro which laws denied who blood, have or more shall one fourth See, protections e.g., to mixed-race citizens. An shall deemed a mulatto. LIMBAUGH, Judge, concurring part in doubt. The the benefit should afford part. dissenting in rights due-process expectations of based parties proper are the focus. Court’s of the convic- in the affirmance I concur tion, the Rule in reversal of dissent objective but reasonable-person, proceeding. It 29.15 employ hypersensitive. is not standard we merely prejudice acknowledges the fact that scourge prejudice is of our soci- Racial subtle, masquerad is most often sometimes mind, is no more damn- ety, my in there ing language. one superficially neutral No bigot. To ing criticism than to be called a judge that a never use dispute would should must judges our trial every possible, extent suggest or terms that racism. words Where be no that there can conduct themselves so obligation ambiguity, there is the Court’s a could upon basis which reasonable assuring in favor language construe impartial- judge’s doubt about racial harbor appearance litigants be of fairness said, language, ity. That neutral neither “justice satisfy appearance of cause must observers, objective isolat- nor inoffensive Lavoie, justice.” Aetna Ins. Co. Life circumstance, ed events remote time 1580, 1587, U.S. require a trial disqualification should judge. judge’s When the on-the-record comments majority Part According to XVII potential coupled are with his status as opinion, required the [trial] recusal “when witness to off-the-record issues raised in the coupled judge’s on-the-record comments are forum, post-conviction fundamental fairness potential his status as witness off- judicial code conduct demand view, only my are the-record issues.” In disqualify himself. he sustain motion grossly mis- the “on-the-record comments” judge We hold that trial erred overrul- characterized, but “off-the-record issues” ing disqualify defendant’s motions himself upon “potential witness” status do confer hearing. from the Rule 29.15 Therefore they because are not action- judgment mo- court’s the Rule 29.15 as a matter of law. able reversed, tion re- must be and the cause hearing manded for a before new new

judge. I. begins reviewing majority by the laun- The CONCLUSION dry judge’s past sins as list of the judgments The entered for defendant’s disqualify. alleged in motion to convictions and sentence are affirmed. The majority allegations, as the acknowl- Those

judgment entered for defendant’s Rule 29.15 edges, are “not conclusive of defendant’s motion is reversed and the cause remanded bias,” scrutiny, of and close claim under for consideration of all issues raised in that bearing at allegations should have no all. motion. judge that swore at defense Evidence controversy a about counsel’s counsel over HOLSTEIN, BENTON, C.J., and request bring private reporter a COVINGTON, JJ., and ROBERTSON intemper- proceedings in-chambers is record concur. nothing unbecoming, it has to do ate and but majori- prejudice, racial and neither the LIMBAUGH, J., part concurs in purport to show oth- ty nor defense counsel part separate opinion in in filed. dissents majority no Similarly, ex- offers erwise. J., 16-year-old sexual PRICE, opinion planation verdict of in of how concurs LIMBAUGH, is indica- against judge the trial J. harassment

And, Ill, (1820): negroes prevent and mulat- § To free Const. Art. First. Mo. state, Assembly’s] duty, to, as coming settling [the It be may General shall in this toes from be, pass may such laws as soon as necessary, pretext any whatsoever.... under animal; another, coward; another,

tive of basis of an discrimination on the race. in in Indeed, opinion, another, under Part III its of a manipulator; and in a clown. In majority why case, persuasively explains beaten, the 16- the first the defendant had year-old disqualify raped verdict does not elderly bloodied an woman. Given judge deciding gender from circumstances, discrimination judge’s those character- gender-üaísore hearing in claims that he appropriate, ization maybe even under- in very conducted same case! If the other compara- stated. The three cases are evidence of the sexual short, harassment verdict ble. this kind of claim is nonsense. disqualify hearing does not him from claims discrimination, possibly of sexual how it does II. disqualify hearing him from claims of racial majority’s judge’s The criticism the trial of discrimination? illogi- on-the-record from an comments stems allegation concerning a racial slur judge’s cal and overzealous attack use just company people made in the of a few Although language. race-neutral their private in social event back 1983 fares no analysis begins with the tacit concession that (in fact, if allegation better. Even is true judge’s language the trial was indeed race- contested), hotly it is no reasonable neutral, they conclude that same lan- an appearance impropriety

would find in context,” guage, when viewed “in somehow judge presided the fact that the over race- offensive, if becomes not scandalous. I am hearings years majori- Batson As the later. puzzled by majority’s statement that ty aptly noted its Part III discussion about language race-neutral inappropriate is in the gender-Paisow hearing, per- a reasonable setting; least, Batson at the that statement son would consider passage of time and is counterintuitive. I do What understand the difference between matters outside the however, majority’s position, about is judging. courtroom and the task of prejudiced persons “disguise their belief that by hiding neutral-sounding their bias behind allegation disparate The final treat —the language,” may and that simply “we ac- ment of whites and blacks —is even more cept ostensibly language neutral showing as baseless than others. The outline of the prejudice.” I absence of don’t While nec- “expert testimony5’ set out the affidavit essarily disagree with proposition, per- that support filed in of defendant’s motion to dis using son language, race-neutral which qualify, Judge identifies six cases which face, definition is innocuous on its should be Corrigan supposedly blacks treated different presumption entitled to a that he or she ly is similarly-situated than in three oth whites perceive great not biased. risk in er theory, cases. Under defendant’s these inquiry standard that mandates an deter- pattern cases establish a course of con mine mean whether words used some- conclusively prove duct that thing they say, than if different what all hopelessly bigoted unworthy speech subjec- kind suspect. Under this his office. review, saintly may even tive the most us contrary, judge’s To the six from cases this scrutiny target be the of overzealous and judicial 20-year-plus career —a career in often, majority’s quite pro- false claims. The presided which he has scores of over trials judge nouncement that the to “[i]t is not guilty pleas and has taken hundreds of —are whom we affirm benefit of should the the hardly of proof pattern of racial bias. doubt” is the law. In- a misstatement of Moreover, fully theory, to discredit one stead, analysis recogni- begin the should with only need examine the substance of the al- tion of the tenet that the well-established leged disparate treatment. Defendant does honesty integrity judicial officers of is that were contend sentences meted out Larkin, presumed. U.S. Withrow unevenly rulings By or that one-sided. were 1456, 1464, 43 L.Ed.2d 712 S.Ct. judge far claim the worst is that the referred (1975). terms, derogatory to the in defendants first, happened only majority’s even that in four of the cases. The focus of the wrath was case, In would not judge judge’s one the the defendant the indication that he take called judge’s regard, trial remark jurors, and In that the judicial of the race of the notice second, judge’s drop of black” is drop remark that “one “one of blood constitutes the that of these years ago each blood constitutes black.” On the simply his that observation matters, majority purports to the evaluate categorize phrase persons to was used context, in in takes the comments but fact to what- who of race blacks were mixed/black At time the comments out of context. degree. Although phrase was used ever made, day voir the comments were after identify in blacks order by those who would jurors prospective none dire when of deprive of status as whites to them the same attempt- present, was were defense counsel slur, least, or, racial very at the to invoke a Ms. ing to make a record with the court that in this is insufficient to case the evidence Sidney only juror remaining black was phrase in judge that used the show persons panel. In out of the 30 on the context, In purpose. fashion for that that or judge agreed response request, racial slur. phrase does constitute a black, Sidney he to that Ms. was but refused statement, Indeed, making that after judicial makeup take notice of the final of the his to judge emphasized intent be colorblind jury, required as to and he “direct evidence by stating, unbiased then “Can some- is is white.” His state- who black who enlighten I don’t body me what black is? to responsibility ment that it is “counsel’s know; people.” I think of them as prove comports who is black and who isn’t” requirement any Bat- the threshold Perhaps telling most indictment identify challenge son that defense counsel majority’s objection no is that was conclusion cognizable group racial to which the veni- by at trial defendant’s counsel. The made reperson question belongs. in Par- State v. likely making objection, reason for no had ker, 1992), 930, 939 majority any deference to either shown 1014, 113 U.S. judge, was that the re- trial counsel or circuits, In many that innocuously. marks made The reason- were identification can be established from an- from trial counsel’s failure to able inference out swers on information sheets filled object judge’s is remarks were made that juror. by prospective each sworn derogatory face or a without smirk Furthermore, except for rare case any in his or other conduct that tone voice a dispute which there is about the race of a use support a claim of from the would bias juror, particular customary pros- it is for the race-neutral words. stipulate ecutor to the identification. stipulation, drop Without information sheets or a fact Arguably, the that “one of blood” it is incumbent on defense who wish disparage counsel historically used blacks was press proper claim make a Batson A makes its use context insensitive. jury. makeup record of the racial of the however, insensitivity, which mere incident of majority Although the finds it offensive that appearances unwitting, does not all judge unwilling judicial to take or [that] rise to the level “words conduct race, person’s equally it notice of a offen- upon prejudice ... manifest bias or based presume sive for the what race 3(C), “personal race” under Rule Canon ought another to claim. prejudice concerning proceeding” bias or 3(D). view, my Canon under Rule difficult to fact it is sometimes context, the remark considered when person’s race is a bona fide con- ascertain improprie- appearance is not there even judges. found no cern for all have federal, jurisdiction, ty. case state from states, proposes, any or even criteria determining person’s in order to af- race III. In proper

ford consideration under Batson. conclude, unwilling I am to convict a To comments, whole, as a his taken prejudice on of racial evidence- convey difficulty nothing than does more scanty times of racial sensi- as this. these ascertaining members which rightful- tivity, we with which should are zeal black. ly root prejudice out should not turn into a

witch hunt.

Accordingly, I dissent in reversal proceeding. Rule 29.15 Missouri, Respondent,

STATE of RUSHING, Appellant.

Shaun Alexander

No. 78838. Missouri,

Supreme Court of

En Banc.

Nov. 1996.

Rehearing Denied Dec.

Case Details

Case Name: State v. Smulls

Court Name: Supreme Court of Missouri

Date Published: Nov 19, 1996

Citation: 935 S.W.2d 9

Docket Number: 75511

Court Abbreviation: Mo.