Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the City of St. Louis Hon. Michael
T. Quigless, P.J.
Reynolds appeals from the jury verdict convicting him of
first degree murder, first degree assault, two counts of
armed criminal action, and unlawful use of a weapon. We
affirm the judgment.
AND PROCEDURAL HISTORY
facts, which this court reviews in the light most favorable
to the verdict, indicate that in July of 2012, Richard
Reynolds ("Reynolds" or "Appellant") and
three other individuals fired into a car occupied by A.B. and
his girlfriend, A.C. A.B. was in the
driver's seat while A.C. was in the front passenger seat.
Reynolds came out from a gangway between two houses armed
with a gun, ran up to the car, pointed the gun at A.B., and
opened fire. When A.B. attempted to drive away, two of the
other individuals with Reynolds also started shooting at the
car. At least 3 bullets struck the vehicle. A.B. drove away.
When he got to his home, A.C. told him she had been shot.
A.B. then drove his girlfriend to Barnes Hospital. A.C. died
four days later from a gunshot wound to the head. The bullet
that killed her entered through her left cheek, travelled
through her skull, and lodged underneath the base of her
skull in the spinal column of her neck.
was indicted on five counts: Count I, murder in the first
degree for the death of A.C., in violation of RSMo §
565.020 (2000); Count II, armed
criminal action predicated on the murder in Count I, in
violation of section 571.015; Count III, assault in the first
degree for shooting at A.B., in violation of section 565.050;
Count IV, armed criminal action predicated on the assault in
Count III, in violation of section 571.015, and; Count V,
unlawful use of a weapon for discharging a firearm at a motor
vehicle which resulted in death, in violation of section
571.030.1(9) as enhanced by section 571.030.7.
case proceeded to trial. During voir dire, the court spoke
with two female venirepersons, Juror #1706 and Juror #1429,
outside the presence of the venire panel regarding complaints
they filed against the court's bailiff. First, the court called in Juror #1706.
After confirming that she filed a complaint, the court
stated: "So to be perfectly honest, I don't see how
I would have you on this jury given the fact that you filed a
complaint against him, and that has nothing to do -- I'm
not commenting on the merits of it. That's not the point.
My point is that that can create a problem. So I'm going
to tell you now, just don't answer any questions [during
the jury selection process]. You're going to have to sit
here through the rest of the process. Do not raise your hand.
Do not answer any questions, okay?" Juror #1706
responded that she understood and had no questions.
the court called in Juror #1429 and stated: "It has come
to my attention that you have filed a complaint against my
bailiff in this division; is that correct?" When Juror
#1429 confirmed that this was correct, the court added:
"All right, and I'm not here to comment on the
merits of it or anything like that, but I think you can see
the obvious problem that this creates for the Court. If you
were to be selected for this jury you would be interacting
with him on a regular basis for the next several days, and my
concern is in any case, but especially in a case of this
magnitude and seriousness, that that could cause a
distraction for you and the bailiff, and that would not be
fair to the parties quite frankly. So I don't see any way
that you are going to make it on to this jury. Having said
that you are going to have to sit here throughout the
remainder of the questions. I do not want you to raise your
hand. I do not what [sic] you to answer any questions. Is
that understood?" Juror #1429 responded that she
understood and had no questions.
completion of voir dire and while the trial court was ruling
on challenges for cause, the court on its own motion struck
both Juror #1706 and Juror #1429 from the venire panel. No
further explanation was given by the court. Neither party
raised any objection.
during the jury selection process, the State used a
peremptory strike to dismiss Juror #518, an African American
male, from the venire panel. The defense immediately raised a
Batson objection, alleging that the
prosecution's use of a peremptory strike on Juror #518
was an "improper attempt to exclude him on the basis of
his race, in violation of his rights and of [the
Defendant's] rights to due process and protection under
the law." Defense counsel asked the court to "take
judicial notice that [Juror #518] is an African-American
male, and the only African-American male left on the
State offered the following race-neutral reason for striking
"When [Juror #518] was called upon his answers were
curt. His facial expression was completely disinterested and
sort of unresponsive. He mumbled his first few answers until
he was instructed to speak up, and that generally makes me
nervous. And you can see that if you flip back to page 1.
[Juror #1429] who is a white female gave similar sort of
responses. She only spoke when called upon. She gave short
curt answers. She seemed generally disinterested during most
of jury selection. Both when I watched these two people when
I spoke, and then even when Ms. Johnson spoke, I kept an eye
on all of these people who I was worried about, and so I
struck a white female who did the exact same thing as a black
male, so the opposite sex and an opposite race."
defense objected to the use of Juror #1429 as a similarly
situated white juror and argued that the State's
proffered reason was pretextual, stating:
"I don't believe the record supports the state's
explanations especially for the demeanor explanation. I
didn't see it, and the state didn't inject it into
the record or question the juror about it. Additionally,
there were other white males who were not struck who gave
short answers. [Venireperson P], also located on page 5 line
5, he only answered the questions when called upon. It does
not mean he is a disinterested juror. [Juror #518] did not
say anything that would make him a bad juror for the state.
Additionally, when he was asked about the question regarding
cool reflection he responded to Ms. Benniger. He didn't
ignore her comments. When I asked him, 'Can you presume
[the Defendant] innocent, ' he said, 'yes.'
'Could you hold the state to their burden?'
'Yes.' 'Can you listen and make a determination
about witness credibility?' 'Yes.' So based on
that and based on the fact that there are similarly situated
white males I believe this is a pretextual decision."
Court overruled Reynolds' Batson objection,
stating: "[Juror #518] did, [sic] I will agree with the
state, insofar as the description of his demeanor and his
answers. I also would agree that the white female who was
struck was similar. I did note that she, once brought to my
attention by the state, that she gave similar types of
answers to these questions, and so I don't find this to
be pretextual. I'm going to deny the Batson
Challenge." The court then dismissed Juror #518, the
jury was empaneled, and the case proceeded to trial.
trial, the jury convicted Reynolds on all five counts. The
trial court sentenced Reynolds to life in prison without
parole Count I, 10 years in prison on Count II, 15 years in
prison on Count III, 10 years in prison on Count IV, and 30
years in prison on Count V. All sentences were concurrent.
filed a motion for judgment of acquittal notwithstanding the
verdict or a new trial. The motion alleged that the trial
court erred in overruling Reynolds' Batson
objection to the dismissal of Juror #518, alleging that the
prosecution's peremptory strike was race-based and the
proffered reason was pretextual. Reynolds did not raise any
objections concerning either the dismissal of Jurors #1706
and #1429 from the venire panel or the constitutionality of
the multiple convictions based on the same conduct.
raises three points on appeal. He argues that the trial
court: (1) plainly erred in allowing convictions for both
armed criminal action and unlawful use of a weapon as they
constitute cumulative punishment in violation of his right to
be free from double jeopardy; (2) plainly erred in dismissing
two female jurors from the venire panel in violation of his
rights to due process and a fair trial by an impartial jury;
and (3) clearly erred in overruling his Batson
objection to the prosecutor's peremptory strike of an
African-American male juror from the venire panel. Reynolds
does not challenge the sufficiency of the evidence.
Point One - Double Jeopardy
first point on appeal, Reynolds argues that the trial court
plainly erred when it allowed convictions for both armed
criminal action and unlawful use of a weapon because these
dual convictions based on the same course of conduct violated
his right against double jeopardy as guaranteed by the Fifth
Amendment to the United States Constitution. We disagree.