No. 17287: APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY. Honorable Fred W. Copeland, Judge No. 18009: APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY. Honorable Paul McGhee, Associate Circuit Judge
Garrison, Flanigan, Prewitt
The opinion of the court was delivered by: Garrison
Appellant (Defendant) was convicted, after a jury trial, of burglary in the first degree, § 569.170, *fn1 and stealing over $150, § 570.030. Prior to the date set for sentencing, Defendant absconded from the New Madrid County Jail. Approximately seven months after his original sentencing date, he was returned and sentenced as a prior offender to the concurrent terms of fifteen years for burglary and five years for stealing. His direct appeal is Case No. 17287.
After sentencing, Defendant filed a pro se motion under Rule 29.15 *fn2 to vacate, set aside or correct the judgment or sentence. The motion was amended after appointment of counsel and was subsequently denied. Defendant's appeal from denial of that motion is Case No. 18009.
These two appeals were consolidated but will be addressed separately in this opinion. Before doing so, we address the State's contention that both appeals should be dismissed by applying the "escape rule."
Missouri courts have previously dismissed the appeals of defendants who escaped after being convicted. State v. Woods, 812 S.W.2d 267 (Mo.App. 1991); State v. Thomas, 792 S.W.2d 66 (Mo.App. 1990); State v. Wright, 763 S.W.2d 167 (Mo.App. 1988). The United States Supreme Court has recently indicated that the "escape rule" should not be automatically applied by appellate courts when the escape occurred before sentencing and had no impact on the appellate process. Ortega-Rodriguez v. United States, 507 U.S. , , 113 S. Ct. 1199, 1208, 122 L. Ed. 2d 581, 597 (1993). In those circumstances, the sentencing court is usually the tribunal most directly affected by the escape and should be the one to consider application of the "escape rule." Id. at 1209. In the instant case, the trial court acknowledged that the "escape rule" was available to deny relief to Defendant on his Rule 29.15 motion but chose, instead, to decide the issues on the merits. We also choose to do the same.
Defendant presents two points on this appeal: (1) the State's peremptory challenge of a black juror was in violation of the equal protection provisions of the United States Constitution and Missouri Constitution; and (2) the trial court erred in overruling his motion to suppress a television set and also by overruling his objections *fn3 and in not granting a mistrial when witnesses identified it at trial.
Defendant's argument that the peremptory challenge of a black juror violated his constitutional rights is based on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The Batson case condemned purposeful racial discrimination in the selection of a jury as a violation of the equal protection provisions of the Fourteenth Amendment to the United States Constitution. That decision has been interpreted as involving a three-step process: (1) defendant must first raise an objection under Batson concerning one or more specific venirepersons stricken by the State and must identify the cognizable racial group to which the venireperson belongs; (2) the State must come forward with a reasonably specific and clear explanation for the strikes which is race-neutral; and (3) defendant must show that the State's explanation for making the strikes was merely pretextual and that the strikes were racially motivated. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992). See also State v. Antwine, 743 S.W.2d 51, 64 (Mo. banc 1987).
In the instant case, Defendant is black. The venire included several blacks, four of whom were ultimately selected to serve on the jury. One black male, however, was stricken by the State's use of one of its six peremptory challenges. Defendant's counsel challenged that strike under Batson and requested that the State be required to state neutral reasons for the strike that were not pretextual or discriminatory.
The State explained that the reason for striking the venireperson in question was because he was a middle-aged male, and the bulk of the people stricken met that description. The trial court noted that all of the other peremptory strikes employed by the State involved middle-aged men as well.
It is not required that the State's explanation rise to the level that would support a challenge for cause. Batson v. Kentucky, 476 U.S. at 97, 106 S. Ct. at 1723-1724, 90 L. Ed. 2d at 88; State v. Parker, 836 S.W.2d at 934. Prosecutors are still permitted to use "horse sense" and "play hunches" in the process of jury selection so long as the factors they rely on are not racially motivated. State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992). For the explanation to be sufficient, it need only be race-neutral, reasonably specific and clear, and related to the particular case to be tried. Batson v. Kentucky, 476 U.S. at 98, 106 S. Ct. at 1724, 90 L. Ed. 2d at 88. The explanation will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. Hernandez v. New York, 500 U.S. , , 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395, 405-406 (1991). In the instant case, the State's explanation was not inherently discriminatory and is, therefore, deemed race-neutral. State v. Parker, 836 S.W.2d at 934.
The trial court was required to determine if Defendant had established purposeful discrimination. State v. Parker, 836 S.W.2d at 934. In order to succeed with a Batson challenge, Defendant must show that the reasons given by the State for exercising the peremptory challenge were merely pretextual and that they were actually motivated by racial considerations. Id. At this stage, the focus is on the plausibility of the State's explanation, considering the totality of the facts and circumstances of the case, with much of the determination turning on the evaluation of intangibles such as credibility and demeanor. Id. This means that trial Judges are vested with considerable discretion in determining ...