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August 17, 1993


Appeal from the Circuit Court of the City of St. Louis. Hon. John Jacobs.

Clifford H. Ahrens, Presiding Judge, James R. Reinhard, J., and Robert E. Crist, J., concur.

The opinion of the court was delivered by: Ahrens

Defendant, Michael Shackelford, was found guilty by a jury of selling a controlled substance, cocaine, in violation of § 195.211 RSMo (Supp. 1991). He was sentenced as a Class X offender to twelve years' imprisonment. We affirm.

The evidence most favorable to the state's case is that on September 16, 1991, St. Louis City Police Officer Darren Whitehorn was working undercover with the Street Corner Apprehension Team (SCAT), an undercover narcotics unit. Officer Whitehorn was driving an unmarked police car. He noticed defendant standing along the street. The officer pointed to his nose, which indicated that he wanted cocaine. Defendant then motioned for the officer to pull up next to him, which Officer Whitehorn did. Defendant asked the officer what he needed. Officer Whitehorn told defendant he wanted a "fifteen piece", or fifteen dollars worth of cocaine.

Defendant then entered the unmarked police car and told the officer to drive to a specific location. He directed Officer Whitehorn to pull up next to three men. Defendant told one of the men, Corey Leonard, that the officer wanted a "fifteen piece." Leonard handed defendant a small off-white chunk, which later tested to be cocaine. Officer Whitehorn gave defendant fifteen dollars. Defendant then handed the cocaine to the officer and gave the money to Leonard. Defendant and Leonard were thereafter arrested.

In his first point, defendant alleges the trial court erred in denying his claim that the state used several of its peremptory strikes in a racially discriminatory manner to remove African-American venirepersons from the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The prosecution used six of its seven peremptory challenges against African-American venirepersons.

Once a defendant raises a Batson challenge, the state must then come forward with reasonably specific race-neutral explanations for the strike. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992). If the prosecution articulates an acceptable reason for the strike, the defendant must then show that the state's offered reasons were merely pretextual and the strikes were racially motivated. Id. Our review of a Batson challenge is limited to a determination of whether the finding is clearly erroneous, and we must give extreme deference to the trial court's finding. Hernandez v. New York, 500 U.S. , 111 S. Ct. 1859, 1868-69, 114 L. Ed. 2d 395, 409-410 (1991). Unless a discriminatory intent is inherent in the explanation of the prosecutor, the reason given will be deemed race-neutral. Parker, 836 S.W.2d at 934.

Following defendant's Batson challenge, the prosecutor offered his explanations for each peremptory strike. The prosecutor explained he struck Marzee Burns because she showed up late for the trial, and he did not like to select jurors who arrive late. The prosecutor added that all other jurors who had arrived late were stricken for cause. None of the venirepersons who arrived late were selected for the jury.

The state also struck Scena Thompson, who stated she had a list "a mile high of friends and relatives" that had been convicted of crimes, including drug-related offenses. The prosecutor explained he struck Thompson because she knew many people, both relatives and friends, who used drugs and were convicted of drug offenses. Although some of the white jurors had a friend or relative who had been convicted, no other juror indicated that he or she had a "mile-high list" of friends or relatives involved with drugs or convicted of drug offenses. Defendant contends striking Thompson was discriminatory because one of the white jurors selected had been arrested for burglary. The crime, however, had occurred more than fifteen years earlier when the juror was only seventeen. Defendant also complains that two white jurors had DWI convictions. The state did not, however, strike Thompson because she had any prior DWI arrests or convictions.

The state also challenged Ola Crusoe, who indicated her son had been on drugs and sold drugs to support his habit. The prosecutor explained he struck Crusoe because she was a "motherly type" whose son had been convicted of a drug charge. The prosecutor further explained he had previously had bad responses from women jurors, with children about the same age as a defendant, trying to decide if a defendant was guilty. Venireperson Ingold was the only white juror with a child who had been incarcerated. Her son, however, was not convicted of a drug-related offense. Therefore, it was not as likely Ingold would identify closely with defendant as would Crusoe.

Geraldine Swinson was also stricken by the state. Her sister had been convicted of a drug offense, but she believed her sister had been wrongly accused. Swinson initially indicated she would be biased against the state because of her sister's experience. The prosecutor stated he struck Swinson because Swinson believed her sister had been wrongly accused and she would be biased against the state. None of the jurors selected stated that he or she had a relative who they believed had been wrongfully convicted of a drug offense.

The state also struck Gloria Smith, who mentioned the defense of entrapment during voir dire. The prosecutor indicated he did not want to select a juror who would be thinking of possible entrapment during the trial. He further offered that he also struck Smith because she had a friend who had been executed while incarcerated; he preferred not to select a juror who had a friend or relative executed while imprisoned. None of the jurors selected mentioned possible defenses during voir dire, or knew anyone who had been executed while in prison.

The state's final challenge was Charles McDonald, who stated he preferred to convict on physical evidence rather than on witness testimony. The prosecutor first attempted to have McDonald stricken for cause. He indicated he struck McDonald because he was hesitant to select a juror who did not want to convict on witness testimony alone.

The trial court accepted the prosecutor's explanations as race-neutral. Reviewing the prosecutor's strikes under the factors set out in Parker, we find no clear error on the part of the trial court in accepting the prosecutor's explanations. The defendant did not establish that the strikes were merely pretextual. We find nothing ...

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