State of Missouri, Plaintiff-Respondent, v. Clifton Clyde Reed, Jr., Defendant-Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: State of Missouri, Plaintiff-Respondent, v. Clifton Clyde Reed, Jr., Defendant-Appellant. Case Number: 25895 Handdown Date: 07/16/2004 Appeal From: Circuit Court of Butler County, Hon. Mark L. Richardson Counsel for Appellant: Nancy A. McKerrow Counsel for Respondent: Breck K. Burgess Opinion Summary: None Citation: Opinion Author: Nancy Steffen Rahmeyer, Chief Judge Opinion Vote: REMANDED WITH DIRECTIONS. Parrish, J., concurs. Shrum, J., dissents in separate opinion. Opinion: Clifton C. Reed, Jr. ("Appellant") was convicted by a jury of six counts of criminal nonsupport, a Class D felony, in violation of Section 568.040.(FN1) Appellant was sentenced as a Prior and Persistent Offender (FN2) to serve concurrent sentences of five years imprisonment on each count of criminal nonsupport. Appellant initially alleged on appeal three points of trial court error. Appellant argued in Point I that Counts I and II of the information were barred by the three-year statute of limitations governing felonies; however, Appellant has now withdrawn Point I from our consideration. Therefore, we only address Appellant's two remaining points. First, Appellant alleges that the trial court erred in denying his challenge to the State's use of peremptory strikes against seven male members of the jury venire pursuant to Batson v. Kentucky , 476 U.S. 79 (1986). Next Appellant maintains that the trial court erred in overruling his motion for judgment of acquittal, because the State failed to prove beyond a reasonable doubt that Appellant "knowingly" failed to support his children. We find Appellant's remaining first point to be dispositive and remand with

directions for an evidentiary hearing. It is axiomatic that a party in a criminal trial is prohibited by the United States Constitution from using a peremptory strike to remove a prospective juror solely on the basis of race. See Batson, 476 U.S. at 85. In 1994, Batson was expanded by the United States Supreme Court to prohibit potential jurors from being stricken solely on the basis of gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994). The United States Supreme Court left to the states the right to prescribe particular rules and procedures for the implementation of Batson. Batson , 476 U.S. at 99. Our Supreme Court outlined the procedure to be used in Missouri in the case of State v. Parker , 836 S.W.2d 930, 939 (Mo. banc 1992). The three-step process for determining whether a peremptory strike resulted from an impermissible motive is: (1) the defendant must timely object and identify the cognizable racial group to which the stricken venireperson belongs; (2) the trial court must require the state to provide reasonably specific and clear race-neutral reasons for the strike of the individual; and, (3) if the state provides sufficient race-neutral explanations, the defendant will then need to demonstrate that these explanations were pretextual and that the strikes were actually based upon race. Id . Both the substance and procedures established by Batson and its progeny are equally applicable to challenges made to peremptory strikes based on gender bias. State v. Smith , 5 S.W.3d 595, 597 (Mo. App. E.D. 1999). Our review of the trial court's ruling on a Batson challenge is limited to a determination of whether it is clearly erroneous. State v. Pullen , 843 S.W.2d 360, 362-63 (Mo. banc 1992). A finding is clearly erroneous when the reviewing court is left with the definite and firm impression that a mistake has been committed. State v. Shaw , 14 S.W.3d 77, 82 (Mo. App. E.D. 1999). The decisive question to be determined by a trial court facing a Batson challenge is whether the State's gender-neutral explanation for a peremptory challenge should be believed. State v. Koenig , 115 S.W.3d 408, 411 (Mo. App. S.D. 2003). A reviewing court ordinarily gives the trial court's findings great deference because such evaluations of demeanor and credibility lie particularly within the province of the trial judge. State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987); State v. Heckenlively, 83 S.W.3d 560, 564 (Mo. App. W.D. 2002). The record reflects that thirty-three venirepersons were called for service on the jury venire. Although the record is unclear, it appears that of these thirty-three people nineteen were female and fourteen were male. (FN3) The State used all seven of its peremptory strikes against male jurors and the resulting jury consisted of either eleven females and one male or ten females and two males. (FN4) During the jury selection conference, Appellant objected to the composition of the jury in the following manner: Mr. Collier [Attorney for Appellant]: I want to object to the state's preemptory strikes that they were based on sex.

Every single one of their strikes was a male. No female was struck. This violates the sex of the class of the jury or, well, as he has used discriminatory use of preemptory strikes this has violated my client's rights under Section 494.480, the Fifth, Sixth, Eight and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 10, 18(a), 19 and 21 of the Missouri Constitution and under the case of Batson vs. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986) and J.E.B. verses Alabama, 114 S.Ct. 1419 (1994) and that specifically spoke of gender. The Court: Okay, anything else? Mr. Oesterreicher? Mr. Oesterreicher [Prosecutor] : To tell you the truth, Judge, I didn't know. I didn't even know I struck all males. I really don't know. I just struck them, some based on age and some of them based on some of their occupations and the way they either spoke in the courtroom or that they didn't speak and their body language. To be honest with the Court I never knew I struck all seven and they were all males. The Court: Final word, Mr. Collier? Mr. Collier: No, Your Honor, we still object just that it's all male jurors that were struck. The Court: The objection will be overruled. Mr. Collier: Okay. Thereafter, the jury was sworn and a trial on the merits was held. The State initially argues that Appellant failed to preserve his claim for our review; the State contends Appellant has preserved nothing for our review and has abandoned his Batson challenge because he failed to challenge the State's explanations as pretextual at the trial court level. While we acknowledge the line of cases referenced by the State, these cases are easily distinguishable from this Batson challenge. For instance in State v. Wright , 972 S.W.2d 305, 307 (Mo. App. W.D. 1998), the State gave a specific explanation for each individual strike. Id . The Appellant did not inform the court whether he accepted the explanation of the prosecutor or whether he claimed the explanation was race neutral and pretexual. Id. at 308. Thereafter, the trial court overruled any objection to the strikes. Id . at 309. That ruling was left undisturbed on appeal because the defendant did not bring to the attention of the trial court any claim that the reason given by the prosecutor was race neutral. Id. at 309. Likewise, in State v. Plummer , 860 S.W.2d 340 (Mo. App. E.D. 1993), after the State explained each of its four peremptory strikes, the defendant gave a general objection; thereafter, the trial court found no evidence of a discriminatory technique on behalf of the prosecutor.. Id . at 345. The ruling was affirmed on the basis that the defendant had not preserved error for review. In each of the cases where the trial court found that Appellant had failed

to preserve his claim, the State followed the process set out in Parker to specifically state a clear neutral reason for the strike. In other words, in each case the prosecutor was required to give specific reasons for challenging each strike. The "reasonably specific" explanation by the State in this case was the prosecutor's statement that he was unaware that he had struck all males and a general description of all the reasons he struck the seven jurors. The prosecutor did not attempt to give a reason for each juror. Some were struck for age but we do not know which ones so there cannot be any correlation between the struck males and the women who were not stricken. Likewise, the claim that some of the men were struck because of their occupations or because they did or did not speak up during voir dire is essentially not subject to any review as pretextual because no specific attribute is given to any particular juror.(FN5) The defendant had no opportunity to challenge the reason for each specific strike. Thus, the trial judge failed to apply the second prong of the Parker three-step process and accepted the non- specific explanation from the State as to the reasons behind its peremptory strikes. Therefore, the third prong of Parker regarding the defendant's burden to show that the reasons were pretextual is not even implicated. Appellant objected at trial and later specifically objected in his Motion for New Trial that the trial court erred in its application of Batson and its progeny. Having asked for relief and objected to the trial court's handling of the situation, the issue was preserved for appeal. For much the same reason that Appellant's claim is preserved on appeal, this case must be remanded for the failure of the trial court to follow the Parker analysis. As noted herein, the trial court must apply a three-pronged analysis in assessing the explanations provided by the prosecutor. State v. Taylor, 18 S.W.3d 366, 371 (Mo. banc 2000). As stated in Parker, "[I]t appears that Antwine contemplates that trial courts will request the prosecutor to provide reasons for the strikes without having been asked to do so by the defendant." Parker, 836 S.W.2d at 937 n. 5. In declaring the procedures to be followed in Missouri, Parker stated that once the Defendant properly raises a Batson challenge, "[t]he trial court will then require the state to come forward with reasonably specific and clear race- neutral explanations for the strike." Parker, 836 S.W.2d at 939 ( Emphasis added.) The explanation must be gender neutral, related to the case to be tried, clear and reasonably specific, and legitimate. State v. Barnett , 980 S.W.2d 297, 302 (Mo. banc 1999). With that in mind, the trial court could not have applied the three-prong Parker test when the second prong was completely lacking. The trial court failed to follow the applicable procedures to be followed regarding a reasonably specific reason to be given for each strike. Under this second prong, the burden of production shifts to the State to

rebut the presumption of discrimination. (FN6) Antwine , 743 S.W.2d at 64. The State, after an objection was made to seven peremptory challenges in violation of Batson, gave a non- specific and general explanation for its use of the strikes. Though the State's explanation need not rise to the level of an exclusion for cause, "[t]he [State's] explanations must be more than an unsubstantiated denial of discriminatory purpose or affirmance of good faith." Parker, 836 S.W.2d at 934; Batson, 476 U.S. at 97-98. In addition, the explanation should not "sweep so broadly as to attenuate its validity." State v. Butler , 731 S.W.2d 265, 269 (Mo. App. W.D. 1987). Batson requires that the striking party provide a reasonably specific and clear explanation for its strike of each individual juror. State v. Deck , 994 S.W.2d 527, 537 (Mo. banc 1999). The trial court's " [a]ccept[ance] [of] the State's justifications for its peremptory strikes without any rationale by way of explanation or otherwise supported by the record showing the facts and circumstances surrounding the case would amount to a 'rubber stamp' of approval, rendering the Batson holding and principles a charade." State v. Davis , 894 S.W.2d 703, 710 (Mo. App. W.D. 1995). There is simply no way for Appellant to meet his burden of showing pretext with such vague reasons proffered by the prosecutor. In making our ruling we do not ignore State v. Koenig, 115 S.W.3d 408 (Mo. App. S.D. 2003). In Koenig , the State gave a similar explanation that its strikes "were not based upon anything other than the statements made by the individuals, their general appearance." Id . at 412. The trial court thereafter overruled defendant's motion. Id. On appeal, this Court affirmed the trial court's ruling because neither party challenged the procedure used by the trial court of a two-part Batson hearing, one after voir dire and one after trial. Id . This court found that the failure, by either party, to follow the Parker approved procedure immediately after voir dire was cured at the post-trial hearing by the prosecutor's thorough explanations. Id . Here, there was no post-trial hearing regarding the strikes or any attempt to offer any further explanation for the strikes. Based on the record before us, we find that the trial court in this matter failed to follow the three-step procedure outlined in Parker and accepted an invalid, non-specific reason from the State for the striking of seven male jurors. The failure to follow this procedure constitutes clear error and requires the appellate court to remand to the trial court for an evidentiary hearing to determine whether the prosecutor used the State's peremptory strikes in a discriminatory manner. State v. Nathan, 992 S.W.2d 908, 914 (Mo. App. E.D. 1999). The direct appeal is remanded for a hearing consistent with this opinion. The trial court shall promptly certify to this court a record of its proceeding and its findings. Parker , 836 S.W.2d at 941. This appeal shall be held in abeyance pending compliance with the directions on remand and the filing of a supplemental legal file herein.

Footnotes: FN1. Criminal nonsupport is defined as a Class A misdemeanor pursuant to Section 568.040.4, but is elevated to a Class D felony if the person obligated to pay child support commits the crime of nonsupport in each of six individual months within any twelve-month period or the total arrearage is in excess of five thousand dollars. See section 568.040.1. All statutory references are to RSMo 2000 unless otherwise indicated. FN2. See Sections 558.016 and 557.036. FN3. These numbers were determined by a review of the transcript, as well as assertions in the parties' briefs; however, we note that the gender of several members of the venire was indeterminable based solely on their printed names. Therefore, we are unable to state conclusively how many males served on Appellant's jury or how many males were in the original venire panel. FN4. Appellant exercised his peremptory strikes to remove four females and three males and five people were stricken from the panel for cause. FN5. We note that the jury questionnaires were not included in the record on appeal, therefore we have no information regarding the ages and occupations of the venirepersons. However, we do note that in our review of the proceedings we fail to find a single instance where any of the seven male jurors at issue were asked a question, gave a response, or were referenced in any individual manner. FN6. Ultimately, the burden of persuasion lies with and never shifts from the defendant. Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248 (1981); Antwine, 743 S.W.2d at 63. Separate Opinion: Dissenting opinion by Kenneth W. Shrum, Judge:

In my view, the majority has increased the state's burden at the second stage of the Parker procedure beyond what is mandated by State v. Parker, 836 S.W.2d 930 (Mo.banc 1992), or Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Under Parker and Batson , the prosecutor's obligation at the second stage is to provide an explanation that is "race-neutral, reasonably specific and clear, and related to the particular case to be tried." Parker , 836 S.W.2d at 934[5]. See also Batson , 476 U.S. at 98, 106 S.Ct. at 1724 n.20 ("[T]he prosecutor must give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges") (citing Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981)). The underlying rationale for this second stage explanation "was meant to refute the notion that a prosecutor could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith." Purkett v. Elem , 514 U.S. 765, 769, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). "At the second stage, the state's explanation for the strike only has to be facially gender-neutral, and unless a discriminatory intent is inherent in

the explanation, the court must deem such to be gender-neutral, even if it is not persuasive or plausible." State v. Koenig , 115 S.W.3d 408, 411-12[7] (Mo.App. 2003) (citing Elem , 514 U.S. at 768, 115 S.Ct. at 1771). Batson used the phrase "clear and reasonably specific" in referring to the prosecutor's explanation of reasons for exercising peremptory challenges without requiring an explanation for each particular venireperson. Until this case, neither Batson, Parker , nor any of their progeny explicitly held that a prosecutor, as part of his or her second stage response, had to give a "clear and reasonably specific explanation" for each venireperson who was peremptorily challenged by the State. Yet, that appears to be the requirement the majority has added to the Parker procedure. I can find no authority for such an expansion of the procedure, and therefore, I cannot join with the majority in remanding for a Batson hearing. (FN1) Here, the prosecutor gave the following second stage response to Defendant's objection: "I [struck] some based on age and some of them based on some of their occupations and the way they either spoke in the courtroom or that they didn't speak and their body language." The prosecutor's explanation for the strikes was facially gender-neutral and no discriminatory intent was inherent in the explanation. Koenig , 115 S.W.3d at 411-12[7]. This was sufficient. It is only at the third stage of the Parker procedure that the prosecutor must identify certain characteristics with certain individual jurors to justify his or her strikes. This follows because, at the second stage, implausible and non- persuasive reasons must be accepted by the court as long as the explanation is not inherently discriminatory. Parker, 836 S.W.2d at 934; Koenig , 115 S.W.3d at 411-12[7]. "It is only at the third stage that 'implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.'" Id. at 412[8] (quoting Elem , 514 U.S. at 768, 115 S.Ct. at 1771). Implausible or fantastic justifications can generally only be determined vis- a-vis an individual juror, i.e., what may be an implausible reason to strike one person may not be implausible as applied to another. In my view, the prosecutor's explanation was "clear and reasonably" specific as that term is used in Batson . It exceeded the self-serving explanations expressly rejected by the Batson court and its progeny. Batson , 476 U.S. at 97-98, 106 S.Ct. at 1723-24. At that point, Defendant could have informed the court (1) whether he accepted the explanation as gender-neutral, but claimed it was a pre-textual explanation or (2) whether he claimed the explanation was not gender-neutral. State v. Wright , 972 S.W.2d 305, 308 (Mo.App. 1998). (FN2) Instead, Defendant stated: "[W]e still object just that it's all male jurors that were struck." Because Defendant "simply relie[d] on general or conclusory allegations about the State's reasoning, no effective [gender] Batson challenge [was] made, and nothing is preserved for appeal." State v. Williams, 24 S.W.3d 101, 121 (Mo.App. 2000).

I would hold that Defendant failed to preserve his claim for our review and abandoned his gender-Batson challenge. (FN3) Footnotes: FN1. In fact, I believe contrary authority exists. See, e.g., State v. Winters , 949 S.W.2d 264, 269 (Mo.App. 1997) (stating that summary declaration that age was the reason two jurors were struck was not sufficient, but the prosecutor's belief that younger people had different approaches to the prosecution of drug offenses was clear and specific for second stage); State v. Norton , 904 S.W.2d 265, 268-70 (Mo.App. 1995) (finding sufficient second stage explanation that two jurors "were not paying attention, rolling their eyes, snickering, and laughing during voir dire[]" without specifically identifying actions of either); State v. Boyce , 887 S.W.2d 447, 451-52 (Mo.App. 1994) (two jurors struck because they "were either married to or had several children by men who had 'been in considerable felony trouble'"); State v. Tankins , 865 S.W.2d 848, 852-53 (Mo.App. 1993) (four jurors struck because "'the common theme for all of the strikes . . . is that they have family members [who have] either been charged or convicted of a crime'"). The import of these cases is that a prosecutor, at the second stage, can give an explanation without specifically identifying how it applies to an individual juror . FN2. If Defendant did not understand the explanation because it was not reasonably clear and specific, then a third option might have been for Defendant to ask the court to force the prosecutor to clarify his position. Otherwise, there is nothing to prevent a defendant from sandbagging, i.e., remaining silent, taking his chances with the jury, and then raising the alleged error on appeal if he loses. FN3. My opinion is limited to the question presented on appeal, namely, whether the prosecutor is required to individualize his or her reasoning for striking a particular juror at the second stage. I intimate no opinion whether a sufficient reason could be found in a general explanation that a strike was based on "age" or "demeanor" without further explanation. That question has not been presented to this court on appeal nor was it presented to the trial court. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.