Court of Appeals of Missouri, Western District, Third Division
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.
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
was charged with and convicted of two counts of distribution
of a controlled substance in the Circuit Court of Cole
County. 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.
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
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. 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
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
Id. at 173 (quoting State v. Parker, 836
S.W.2d 930, 939 (Mo. banc 1992)).
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. The trial court then properly required the
State to come forward with race-neutral explanations for the
strikes. We address the strikes separately.
During voir dire, defense counsel inquired of the venire as
Defense Counsel Voir Dire: Now, I want to
ask you guys about ...