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09/21/93 STATE MISSOURI v. WASIM AZIZ

September 21, 1993

STATE OF MISSOURI, PLAINTIFF/RESPONDENT,
v.
WASIM AZIZ, DEFENDANT/APPELLANT. WASIM AZIZ, MOVANT/APPELLANT, V. STATE OF MISSOURI, DEFENDANT/RESPONDENT.



No. 59612: Appeal from the Circuit Court of the City of St. Louis. Honorable Brendan Ryan. No. 61032: Appeal from the Circuit Court of the City of St. Louis. Honorable Floyd McBride.

Kathianne Knaup Crane, Judge, Carl R. Gaertner, P.j., and Paul J. Simon, J., concur.

The opinion of the court was delivered by: Crane

Defendant appeals the denial of his Batson challenge after this court remanded to the trial court pursuant to State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 636, 121 L. Ed. 2d 566 (1992) to determine whether the prosecutor exercised her peremptory strikes in a racially discriminatory manner. State v. Aziz, 844 S.W.2d 531 (Mo. App. 1993). We found the trial court was required to ask the prosecutor for her explanations for striking five black venirepersons before determining whether the strikes were racially motivated. Id. at 535. In his original brief defendant also asserted the trial court plainly erred in giving the reasonable doubt instruction. Defendant further asserted the trial court erred or plainly erred in denying his motion to suppress. We deferred decision on those issues until after the Batson hearing. We affirmed the motion court's order denying post-conviction relief under Rule 29.15.

On December 16, 1992 the trial court conducted an evidentiary hearing and subsequently denied the Batson motion. The parties filed supplemental briefs in this court addressing the trial court's rejection of the Batson claim. We now affirm on all issues raised in the direct appeal.

I.

In his supplemental brief, defendant argues the trial court erred in overruling his motion to quash the jury panel pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Defendant argues the state's explanations for its strikes of two black venirepersons were pretextual because the state did not strike two similarly situated white venirepersons.

At the hearing on remand, the defendant objected to only two of the strikes, those of Bertha Graves, a black female, and Robert Edwards, a black male. The prosecutor stated she struck Graves because "when questioned she kept looking off, would not look me in the face, seemed a little indignant to the State, more receptive to [defense counsel]. She also did not have any children, was of the age of fifty-eight. On a stealing case when I have victims I prefer to have family people, people with children."

The prosecutor stated she struck Edwards because he "would not make eye contact with me. He was unresponsive to my questions and inattentive. He was another individual who is fifty-two with no children. . . ."

After the prosecutor gave her reasons, defense counsel responded that the prosecutor never stated to the court or made a record during voir dire that either venireperson was looking off, inattentive, looking indignant, had no eye contact, or was unresponsive. The defendant did not challenge the substance of the explanation and made no other objection to the strikes at the hearing.

The trial court denied the motion, finding the state's explanations were race-neutral in light of the totality of the facts and circumstances surrounding the case. It further found that defendant failed to show that the state's proffered reasons were pretextual and that the strikes were in fact racially motivated. The court also found that the state's failure to use all of its strikes against venirepersons of a racial minority and the presence of six black jurors on defendant's panel indicated that race was not the prosecutor's motive for the challenged strikes.

The trial court's determination regarding purposeful discrimination is a finding of fact that should not be disturbed on appeal unless clearly erroneous. State v. Parker, 836 S.W.2d 930, 939 note 7 (Mo. banc 1992). See also, State v. Pullen, 843 S.W.2d 360, 362-63 (Mo. banc 1992). To be clearly erroneous, the reviewing court must have a "definite and firm conviction that a mistake was made." State v. Gray, 849 S.W.2d 115, 117 (Mo. App. 1993).

In Parker the supreme court enunciated the procedure to be followed in addressing a Batson objection: (1) defendant must raise a Batson challenge to one or more specific venirepersons struck by the state and identify the cognizable racial group to which they belong; (2) the state must then come forward with "reasonably specific and clear race-neutral explanations for the strike"; and (3) if the state does so, defendant must then show "the state's proffered reasons for the strikes were merely pretextual and that the strikes were racially motivated." 836 S.W.2d at 939.

In determining whether a defendant has carried the burden of proving purposeful discrimination, the trial court should view the plausibility of the state's explanations in light of the totality of the circumstances of the case. Id. at 939. Other factors which the trial court should consider include: (1) the existence of similarly situated white jurors who were not struck; (2) the degree of relevance between the explanations and the case to be tried "in terms of the kind of crime charged, the nature of the evidence to be adduced, and the potential punishment"; (3) the prosecutor's demeanor or statements during voir dire; (4) the demeanor of the excluded venirepersons; (5) the trial court's past experiences with the prosecutor; and (6) other objective factors bearing on the state's motive to discriminate on the basis of race. Id. at 939-40. "The state's failure to use all of its strikes against venirepersons of a racial minority, or the presence of a racial minority on the defendant's jury, are relevant factors for consideration only to the extent that they indicate that race was not the prosecutor's motive for the challenged strikes." Id. at 940.

At the Batson hearing steps one and two of the Parker procedure were followed. The defendant challenged the strikes of the black venirepersons on the panel and the prosecutor stated the reasons for these strikes. However, defendant failed to show that the state's proffered reasons for the strikes were merely ...


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