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State v. Mosely

Court of Appeals of Missouri, Western District, Third Division

June 27, 2017

STATE OF MISSOURI, Respondent,
v.
LAWRENCE MOSELY, Appellant.

         Appeal from the Circuit Court of Cole County, Missouri Honorable Daniel R. Green, Judge

          Before: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge

          Cynthia L. Martin, Judge.

         Lawrence Mosely ("Mosely") appeals his convictions of two counts of distribution of a controlled substance. Mosely argues that the State's peremptory strike of two African-American members of a jury venire panel violated Batson v. Kentucky, 476 U.S. 79 (1986). Because the State's explanation for exercising a peremptory strike on one of the African-American venirepersons was not race neutral, we reverse and remand.

          Factual and Procedural Background

         Mosely was charged with and convicted of two counts of distribution of a controlled substance in the Circuit Court of Cole County.[1] Mosely does not challenge the sufficiency of the evidence to support his convictions, but he notes that his arrest was based on line-up identifications by an undercover officer and a confidential informant nearly three years after the undercover drug buys giving rise to his charges. Both witnesses also identified Mosely at trial. The undercover officer testified that he had been specially trained in cross-racial identification and that he was 100 percent certain of his identification of Mosely.

         Mosely, who is an African-American, challenges the fact that he was convicted by an all-white jury. The State used peremptory strikes to remove venirepersons 16 and 31, two African-American venirepersons who would have served on the jury. The State also used a peremptory strike to remove venireperson 37, an African-American venireperson who would have served as an alternate juror. As a result of the State's peremptory strikes, all African-Americans who remained on the venire after strikes for cause were removed from the venire. Mosely timely objected that the State's peremptory strikes violated Batson. The trial court overruled Mosely's Batson challenges. Additional facts will be addressed in our analysis of Mosely's claim on appeal.

         Analysis

         In his single point on appeal, Mosely argues that his rights to equal protection under the law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, section 2 of the Missouri Constitution were violated when the State struck venirepersons 16 and 31 from the venire because the State's explanations for the strikes were not race neutral or were pretext for a discriminatory purpose.[2] The trial court overruled Mosely's Batson challenge to the strike of both potential jurors. We review the trial court's findings on a Batson challenge for clear error. State v. Meeks, 495 S.W.3d 168, 172 (Mo. banc 2016). A trial court commits clear error if "'the reviewing court is left with the definite and firm conviction that a mistake has been made.'" Id. (quoting State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010)).

         "The Equal Protection Clause in the United States Constitution prohibits parties from using a peremptory challenge to strike a potential juror on the basis of race." Id. (citing Batson, 476 U.S. at 89; State v. Carter, 415 S.W.3d 685, 688 (Mo. banc 2013)). Our Supreme Court has articulated a three-step procedure to be followed to properly raise, and for trial courts to address, a Batson challenge.

"First, the defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable racial group to which the venireperson or persons belong. The trial court will then require the state to come forward with reasonably specific and clear race-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 racially motivated."

Id. at 173 (quoting State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992)).

         Here, there is no dispute that Mosely satisfied the first step, as he raised a Batson challenge after the State struck venirepersons 16 and 31 from the venire, identifying them as African-Americans.[3] The trial court then properly required the State to come forward with race-neutral explanations for the strikes. We address the strikes separately.

         Venireperson 16

During voir dire, defense counsel inquired of the venire as follows:
Defense Counsel Voir Dire: Now, I want to ask you guys about ...

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