State of Missouri, Respondent v. Ronald Hampton, Jr., Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: State of Missouri, Respondent v. Ronald Hampton, Jr., Appellant. Case Number: ED83318 Handdown Date: 09/28/2004 Appeal From: Circuit Court of St. Louis County, Hon. Melvin W. Wiesman Counsel for Appellant: Craig A. Johnston Counsel for Respondent: Evan J. Buchheim Opinion Summary: Ronald Hampton, Jr., appeals from his judgment of conviction, after a jury trial, of first-degree murder, section 565.020, RSMo 2000, and of armed criminal action, section 571.015, RSMo 2000. He was sentenced to consecutive sentences of life imprisonment without probation or parole for the murder conviction and of life imprisonment for the armed criminal action conviction. AFFIRMED. Division Three holds: The court did not err (1) in overruling Hampton's Batson challenge to the state's removal of an African-American venireperson from the venire panel; (2) in permitting the victim's girlfriend to testify about acts of vandalism that occurred prior to the murder; (3) in refusing to grant a mistrial when a detective testified that a co- defendant's photograph was not available to show the witnesses because the co-defendant had never been arrested; and (4) in admitting into evidence letters written by defendant to his co-defendant while they were both incarcerated. Citation: Opinion Author: William H. Crandall, Jr., Judge Opinion Vote: AFFIRMED. Rhodes Russell, P.J., and Ahrens, J., concur. Opinion:

Defendant, Ronald Hampton, Jr., appeals from his judgment of conviction, after a jury trial, of first degree murder, section 565.020 RSMo 2000, and of armed criminal action, section 571.015 RSMo 2000. He was sentenced to consecutive sentences of life imprisonment without probation or parole for the murder conviction and of life imprisonment for the armed criminal action conviction. We affirm. Defendant does not challenge the sufficiency of the evidence. Viewed in the light most favorable to the verdict, the evidence established that Daryl Chatman (the victim), his girlfriend, Demonica Miller, and her two children moved into a new house at 6209 Wagner in Wellston, Missouri. Defendant lived across the street. From the time he moved into the house, the victim encountered problems with defendant. Defendant and his acquaintances, including Sam Williams, always congregated in front of defendant's house and there was a large amount of vehicular traffic. The victim and defendant engaged in several verbal altercations. The victim's house was vandalized on two occasions. On February 15, 2002, after she and the victim had lived on the street for about six months, Miller called the police about 7:30 p.m. to report gambling on the outside of defendant's house. The police came and broke up a dice game. After the police left, the victim got into an argument with some people at defendant's house, including defendant and Williams. As defendant drove away, he threatened to "get" the victim. Sometime later, defendant got an automatic pistol and Williams got a revolver. After attending a dance at the high school, defendant returned with some friends to the house at 6210 Wagner. After the argument on February 15, the victim also left his house in his vehicle. Shortly after 11:00 p.m., he returned home. When Miller heard the garage door open, she went to the door leading from the house to the garage. She stood in the doorway as the victim pulled in. Then, defendant ran up the driveway and ducked under the closing garage door. As he ran, he shot a gun at the victim. Miller shut the door and locked herself inside the house. After the shooting, defendant left the scene. The victim was shot three times and died as a result of his wounds. There were 11 spent .40 caliber gunshot shells, all fired from the same gun, found at the scene. Although Miller and her son were not able to identify defendant as the shooter, they later picked defendant out of a photo lineup and identified him as the person who had argued with the victim earlier that evening. Williams testified at trial against defendant. He stated that defendant's uncle had blamed the shooting on him. He was charged with murder in the second degree and armed criminal action. While he was incarcerated on those charges, he received letters from defendant. In essence, the letters asked Williams to keep his mouth shut; and told him that if he

stood by defendant, he would get out of the situation. The jury found defendant guilty of first degree murder and armed criminal action. The court sentenced defendant to consecutive sentences, respectively, of life imprisonment without the possibility of parole or probation and life imprisonment. Defendant appeals. In his first point, defendant contends that the trial court erred in overruling his Batson (FN1) challenge to the State's use of one of its peremptory strikes to remove African-American Venireperson Jones from the venire panel because the explanations for her removal were mere pretext for removing her on the basis of her race. The use of peremptory strikes to exclude potential jurors from service based upon race, ethnic origin, or gender is prohibited as a violation of the Equal Protection Clause. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S.Ct. 1419, 1430, 128 L.Ed.2d 89 (1994); Batson, 476 U.S. at 89, 106 S.Ct. at 1719; State v. Marlowe, 89 S.W.3d 464, 468 (Mo. banc 2002). In Purkett v. Elem, 514 U.S. 765, 767-69, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), the Supreme Court set out a three-step test for determining the validity of a Batson challenge: (1) the defendant must object that the strike was made on an improper basis, such as race; (2) the burden then shifts to the State to offer a race-neutral explanation for the strike; and (3) if the State does so, then the burden shifts to the defendant to show that the given reason is pretextual. Id. In State v. Cole, 71 S.W.3d 163 (Mo. banc 2002), the Missouri Supreme Court applied the test, as follows: After the defendant objects to the state's peremptory strike and identifies the protected class to which the prospective juror belongs, the state must provide a reasonably specific and clear, race-neutral explanation for the strike. If the state articulates a facially neutral explanation, the burden shifts to the defendant to demonstrate the state's explanation was pretextual and that the strike was actually motivated by race. Id. at 172 (citations omitted). Cole also set out the standard by which this Court reviews a determination that a strike was not discriminatory, stating: "A trial judge's determination that a peremptory strike was made on racially neutral grounds is entitled to great deference on appeal and will only be overturned if shown to be clearly erroneous leaving the reviewing court with the definite and firm impression that a mistake was made." Id. Here, defendant objected to the State's strike of Venireperson Jones, arguing that it was based on the fact that she was African-American. The prosecutor denied that, asserting that he struck Jones because she indicated during voir dire that she had been a witness who had been subject to cross-examination and did not care for it. In response, defense counsel argued that this explanation was pretextual, because the prosecutor failed to strike a similarly situated white juror, Venireperson Sestrich, and because Jones did not indicate that the experience would prevent her from being fair and impartial in the present case. The court disallowed the State's strike of Jones for the reason that the prosecutor did not

strike a similarly situated white venireperson. The prosecutor countered that he would be willing to strike a similarly situated white venireperson along with Jones. The court permitted the State to strike Sestrich, who was replaced by another white person; and the court allowed the peremptory strike against Jones to stand as non-pretextual. Defendant argues that the court's action "left the racial composition [of] the jury the same because the prosecutor was allowed to remove one white juror and replace that juror with another white juror, while Jones was still excluded." A key factor to be considered in determining pretext is "[t]he existence of similarly situated white jurors who were not struck . . . ." State v. Parker, 836 S.W.2d 930, 940 (Mo. banc 1992). In the case before us, once the prosecutor became aware that another juror arguably was similarly situated, he agreed to use a peremptory strike to remove that person. The prosecutor's failure to recognize that prospective juror Sestrich was not similarly situated was reasonable, in light of the fact that during voir dire Sestrich did not clearly establish either that she had been a witness at another trial or that she had been subject to cross-examination. Sestrich merely relayed an incident where she had received a traffic ticket and had gone to court to plead guilty. She did not say that she had been a witness. When the court disallowed the prosecutor's strike of Jones because of a similarly situated venireperson, the prosecutor corrected the situation by excluding Sestrich. Thus, the prosecutor's action indicated that the proffered reason for the strike of Jones was not pretextual, because it was applied equally to a similarly situated white venireperson. The trial court did not err in denying defendant's Batson challenge to the State's strike of Jones. Defendant's first point is denied. In his second point, defendant charges error in the court's permitting the victim's girlfriend, Miller, to testify about two prior acts of vandalism to the house she shared with the victim. During defense counsel's cross-examination, Miller testified that she regretted moving into the house. She stated that the "people across the street" spray painted her garage door orange and left the water on the side of her house running for a whole day. Defendant argues that this testimony constituted evidence of other crimes or misconduct and was irrelevant because the acts of vandalism were not connected to the crime for which he was on trial. First, Miller's testimony did not directly tie defendant to the acts of vandalism she mentioned. Miller identified the perpetrators as the "people across the street." To violate the rule prohibiting evidence of other crimes or misconduct by the defendant, the evidence must show that the defendant committed, was accused of, was convicted of, or was definitely associated with, the other crimes or misconduct. State v. Ponder, 950 S.W.2d 900, 911-912 (Mo. App. S.D. 1997). Miller's vague reference to the "people across the street" was not sufficient to definitely associate defendant with the acts of vandalism. Assuming that Miller's comments were sufficient to connect defendant with the acts of vandalism, her testimony would

still be admissible to establish a motive for the murder. Generally, evidence of uncharged crimes or misconduct is inadmissible for the purpose of showing the defendant's propensity to commit such crimes; but evidence of defendant's prior misconduct is admissible if it is both logically and legally relevant. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). Evidence is logically relevant if it has some legitimate tendency to prove the defendant's guilt of the crimes for which he is on trial, and evidence is legally relevant if its probative value outweighs its prejudicial effect. Id. Miller's testimony established that prior to the altercation between the victim and defendant on the night of the murder, a conflict already existed between the victim and the people who congregated across the street, one of whom was defendant. The victim and Miller were not happy about the activity across the street and had called the police several times before the night of the murder. The acts of vandalism to the victim's house were designed to harass the victim and were part of an on-going dispute between the victim and defendant's group of friends. Miller's testimony was relevant on the issue of defendant's motive to murder the victim. The probative value of evidence regarding a motive for the victim's murder outweighed any prejudicial effect that resulted from the testimony about the two prior acts of vandalism to the victim's home. The court did not err in allowing Miller to testify about the acts of vandalism. Defendant's second point is denied. In his third point, defendant claims the trial court erred in refusing to grant a mistrial when a detective testified that although he showed Miller a photographic lineup containing defendant's photo, he could not show her Williams's photograph for the reason that Williams "had never been arrested before." Defendant argues that the detective's answer allowed the implication that defendant had been arrested before because his photo was available to the detective. During defense counsel's cross-examination of the detective, she inquired about a picture of Williams, who was arrested as an accomplice in the murder, and the following exchange occurred: [Defense counsel]: Did you ever show [Miller] a photo that evening of Sam Williams? [Detective Wheeler]: No, because Sam [Williams] had never been arrested before. He didn't have a photo on file. Defense counsel moved for a mistrial, which the court declined to grant. At defense counsel's request, the court did give a curative instruction admonishing the jury to disregard the detective's answer. In most cases in which the prejudicial error is elicited in response to a question by defense counsel, the courts hold that a mistrial is not required because a defendant "is not entitled to complain about matters brought into the case by his own questions or to take advantage of self-invited error." State v. Burgin, 633 S.W.2d 124, 125 (Mo. App. 1982). This rule makes good policy sense. If a mistrial were required whenever defense counsel elicited inadmissible testimony about other crimes, it would tempt counsel to elicit such testimony if the trial was not going well for the defendant. By limiting the circumstances in which a mistrial is declared to those in which the prosecutor has elicited or taken advantage of the

improper testimony, this situation is avoided while defendant's right to a fair trial is protected. In this case, however, there is a question whether defense counsel can be considered to have invited the response she received from the detective. Defense counsel asked the detective if he showed Miller a photograph of Williams. Defense counsel reasonably may have believed that the witness would not refer to defendant's prior arrest in response to her question. Therefore, for purposes of this appeal, we will treat the answer as one volunteered by the witness without invitation by defense counsel. In analyzing the prejudicial effect of an uninvited reference to other crimes, the courts generally examine five factors: (1) whether the statement was, in fact, voluntary and unresponsive to the prosecutor's question or whether the prosecution deliberately attempted to elicit the comments; (2) whether the statement was singular and isolated, and whether it was emphasized or magnified by the prosecution; (3) whether the remarks were vague and indefinite, or whether they made specific reference to crimes committed by the accused; (4) whether the court promptly sustained defense counsel's objection to the statement and instructed the jury to disregard the volunteered statement; and (5) whether in view of the other evidence presented and the strength of the State's case, it appeared that the comment played a decisive role in the determination of guilt. State v. Smith, 934 S.W.2d 318, 320 (Mo. App. W.D. 1996). We will analyze the application of each factor in turn. First, the detective's statement was voluntary and not deliberately elicited by the prosecution. The circumstances of this case indicate that the witness was not invited to mention defendant's prior arrest. The witness's response was unsolicited. When asked if he had displayed Williams's photograph to Miller, the witness voluntarily expanded upon the reason why no photograph of Williams was available. Moreover, the response was elicited during cross-examination by defense counsel and was not solicited by the prosecution. Second, the statement was singular and isolated. The prosecutor did not take advantage of it. Third, the remark was vague and indefinite. It did not make a specific reference to any crime committed by defendant. The detective's comment did not directly state that defendant had been arrested. The detective stated that he did not have a photo of Williams on file because Williams had never been arrested. Thus, it can only be inferred from the detective's statement that he had defendant's photograph because defendant had been arrested. Fourth, the court promptly took corrective measures regarding the statement. Although the trial court overruled the motion for a mistrial, at defense counsel's request, the court gave the jury a curative instruction, admonishing them to disregard the detective's answer. The final factor—the strength of the State's case—also concerns the potential prejudice caused by the improper

remark. If we conclude that the improper evidence may have played a decisive role in the jury's verdict, then we are far more likely to find an abuse of discretion than we would be if the other evidence of guilt was strong or overwhelming. Smith, 934 S.W.2d at 321. Here, the evidence that defendant shot and killed the victim was strong. Under these circumstances and considering all of the factors set out above, we cannot say that the single comment by the detective played a decisive role in the verdict or that any error in the admission of the comment was not cured by the instruction given to the jury. We therefore conclude that the trial court did not abuse its discretion in denying defendant's request for a mistrial. Defendant's third point is denied. In his fourth point, defendant challenges the trial court's admission into evidence of letters defendant wrote to Williams after they were arrested and while they were incarcerated pending trial. Defendant alleges that the letters "contained irrelevant, bad character evidence of racial animosity that [defendant] had toward white people" and were not probative of the murder because the murder was not racially motivated. The trial court is vested with broad discretion over questions concerning the relevancy and admissibility of evidence. State v. Seiter, 949 S.W.2d 218, 222 (Mo. App. E.D. 1997). Such discretion shall not be disturbed on appeal absent a clear abuse of discretion. Id. As stated above, evidence of uncharged crimes or misconduct generally is inadmissible for the purpose of showing the defendant's propensity to commit such crimes; but evidence of defendant's prior misconduct is admissible if it is both logically and legally relevant. Bernard, 849 S.W.2d at 13. Although defendant's letters to Williams did contain racially-biased references to white people, the letters were relevant because they established evidence of defendant's consciousness of guilt. Invoking their bond of friendship and the importance of a united front against the "white folks," defendant's letters implored Williams to keep quiet and to not implicate defendant in the shooting. Defendant also stated in the letters that he wouldn't let Williams "go down" with him and that he knew he was going "to have to stand up to get [Williams] out of trouble." The content of these letters were probative of defendant's consciousness of guilt. The trial court did not abuse its discretion in admitting the letters into evidence. Defendant's fourth point is denied. In his fifth point, defendant contends that the trial court erred in allowing the State to question its witnesses about defendant's courtroom attire. In his sixth point, defendant charges error in the trial court's refusal to grant a mistrial when the prosecutor yelled for defendant's mother to be removed from the courtroom. In his seventh point, defendant avers that the trial court erred in failing to grant a mistrial when the State played a tape-recording of a witness's prior inconsistent statement to the police about the witness's presence at the shooting. We have reviewed these points on appeal and find that no jurisprudential purpose would be served by a written

opinion. Defendant's remaining points are denied pursuant to Rule 30.25(b). The judgment of the trial court is affirmed.

Footnotes: FN1. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.