Court of Appeals of Missouri, Southern District, Second Division
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable Calvin R. Holden, Circuit Judge.
SAMUEL E. BUFFALOE, Columbia, MO, for Appellant.
SHAUN J. MACKELPRANG, Jefferson City, MO, for Respondent.
DON E. BURRELL, J.
Maurice D. Jones (" Defendant" ) appeals his convictions, following a jury trial, for first-degree assault and armed criminal action perpetrated against a male victim. See sections 565.050 and 571.015. Defendant claims he should receive a new trial because the trial court clearly erred in overruling his gender-based Batson challenges to two peremptory strikes used by the State to eliminate female panel members. Deferring to the trial court's superior position to detect bias, we find no clear error and affirm.
Standard of Review and Governing Law
A party may not exercise a peremptory strike to remove a potential juror solely on the basis of gender. State v. Marlowe, 89 S.W.3d 464, 468 (Mo. banc 2002). " [T]he substance and procedures established by the Batson line of cases are equally applicable to challenges made to peremptory strikes based on gender bias." State v. Hayden, 878 S.W.2d 883, 885 (Mo. App. E.D. 1994). We review the denial of a Batson challenge for clear error. State v. Thurman,
887 S.W.2d 411, 412 (Mo. App. W.D. 1994). A finding is clearly erroneous if we are definitely and firmly convinced that a mistake has been made. Id. We accord the trial court great deference on its findings of fact as they largely depend upon first-hand evaluations of credibility and demeanor. State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010).
A Batson challenge must proceed as follows:
First, the defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable . . . group to which the venireperson or persons belong. The trial court will then require the state to come forward with reasonably specific and clear [gender]-neutral explanations for the strike. Assuming the prosecutor is able to articulate an acceptable reason for the strike, the defendant will then need to show that the state's proffered reasons for the strikes were merely pretextual and that the strikes were [gender] motivated.
State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992) (internal footnote and citations omitted).
A legitimate basis to exercise a peremptory strike may include the prosecutor's class-neutral observations, past experiences, and common sense. See State v. Weaver, 912 S.W.2d 499, 509-10 (Mo. banc 1995). Additionally, counsel may make " a subjective determination based upon a wide variety of character and personality traits, including 'hunches.'" State v. Martin, 291 S.W.3d 269, 277 (Mo. App. S.D. 2009). " A legitimate reason is not one that makes sense but one that does not deny equal protection." Weaver, 912 S.W.2d at 509.
In challenging the proffered reasons as pretextual, the defendant must present evidence or a specific analysis that discredits the State's explanation; he cannot rely on mere conclusory allegations. State v. Johnson, 930 S.W.2d 456, 460 (Mo. App. W.D. 1996). " There is rarely a simple litmus test for examining pretext. Rather, the trial court should take 'into account a variety of factors' '[i]n determining whether the defendant has carried the burden of proof and ...