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08/24/93 STATE MISSOURI v. MARK PENDLETON

August 24, 1993

STATE OF MISSOURI, RESPONDENT
v.
MARK PENDLETON, APPELLANT; MARK PENDLETON, APPELLANT V. STATE OF MISSOURI, RESPONDENT



Appeal from the Circuit Court of the City of St. Louis. Hon. Charles A. Shaw, Judge. Appeal from the Circuit Court of the City of St. Louis. Hon. Charles A. Shaw.

Before Gary M. Gaertner, C.j., Pudlowski and Simon, J.j.

The opinion of the court was delivered by: Per Curiam

PER CURIAM

Appellant, Mark Pendleton, appeals his conviction in the Circuit Court of the City of St. Louis for first degree assault, RSMo § 565.050 (1986), and armed criminal action, RSMo § 571.015 (1986). He was sentenced by the Honorable Charles A. Shaw as a prior offender to consecutive terms of thirty and fifteen years; respectively. Appellant also appeals the denial of his post-conviction relief motion without an evidentiary hearing. We

affirm.

In the light most favorable to the verdict, the evidence established that on the evening of February 21, 1991, appellant was visiting Shirley Taylor at her home. At some point during the evening, Danny Lawson, having just been to the liquor store, arrived on the scene. The three began drinking.

During the evening, an argument ensued. Ms. Taylor had owned two rifles which she kept in her house. However, about two weeks before the evening in question, Mr. Lawson had pawned one of the rifles for $50. Appellant began to question Lawson as to why he had stolen Taylor's gun. Appellant then went into another room, got the second rifle owned by Ms. Taylor, and returned to where Ms. Taylor and Mr. Lawson were talking. Ms. Taylor took the gun away from appellant and put it back in the other room. However, appellant again obtained the rifle and demanded that Lawson tell him why he had taken Taylor's gun. Ms. Taylor distracted appellant while Mr. Lawson escaped out the front door, but appellant followed. As Lawson was opening the front gate, appellant fired. The bullet hit Lawson, traveling through his left elbow and into his chest. Lawson continued through the gate, ran across the street to a friend's house, and collapsed.

The police arrived and Lawson was rushed to the hospital, where he spent the next eight days. The bullet had severed Lawson's brachial artery. He also suffered a lacerated spleen and kidney and underwent surgery twice.

In speaking with Officer Michael Lauer, Mr. Lawson identified appellant as the person who shot him. Officer Lauer then questioned appellant. Lauer testified appellant initially told him that the gun accidentally went off during an argument with Lawson. Appellant told Lauer that Lawson tried to take the gun to commit a robbery. According to appellant's story, Lawson grabbed the barrel end of the rifle with both hands, trying to take it from appellant. The gun then went off as appellant and Lawson struggled. However, Officer Lauer told appellant that Lawson's injuries could not have happened in that manner. Appellant then recanted his story.

Appellant next told Officer Lauer that the argument was really over a gun Lawson had stolen from Taylor. Appellant told Officer Lauer that he had followed Lawson out the front door pointing the rifle at him, but had only pulled the trigger when Lawson turned and said, "Lets fight."

Appellant was convicted by a jury on all charges. On January 31, 1992, the Honorable Charles A. Shaw sentenced appellant as a prior offender to forty-five years' imprisonment.

Appellant filed a pro se Rule 29.15 motion on September 12, 1992. Counsel was appointed and an amended motion was filed on November 16, 1992. Judge Shaw denied appellant's motion without an evidentiary hearing. We have consolidated appellant's appeals pursuant to Rule 29.15(l).

Appellant's first contention on appeal is that the trial court erred in denying his Batson motion. *fn1 Appellant contends the State's articulated reasons for striking one juror, Venireperson Garner, were weak and pretextual. He adds that the State's use of five of six strikes to remove blacks from the jury panel was indicative of purposeful discrimination. We disagree.

The record reveals that after strikes for cause, the jury panel consisted of thirteen whites and eleven blacks. The state used its peremptory strikes to remove five blacks and one white. Noting this, and the fact that the defendant was black, the Court required the state to give reasons for its peremptory strikes. The following dialogue concerning Venireperson Garner ensued:

MR. MOSS: All right. My first strike is Miss Garner. She struck me as being too strong willed and strong voiced. She is the big, heavy set lady that was number two on the panel. She has a nephew who's, within the last two years, has been arrested for and sent to court for a crime, who would be, in my estimation be the same age as the defendant. And since she strikes me as a strong willed person, I frankly, given ...


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