State of Missouri, Respondent, v. Tommy Pickett, 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. Tommy Pickett, Appellant. Case Number: 64827 Handdown Date: 02/10/1998 Appeal From: Circuit Court of the City of St. Louis, Hon. Daniel T. Tillman Counsel for Appellant: Dave Hemingway Counsel for Respondent: Cheryl A. Caponegro Opinion Summary: In State v. Pickett, 926 S.W.2d 872 (Mo.App.E.D. 1996) (Pickett I), Tommy Pickett appealed his sentences as a Class X offender, section 558.019, RSMo 1996, of a life term for assault in the first degree, section 565.050, and a consecutive term of thirty years for burglary in the first degree, section 569.160. He contended the trial court: (1) erred in overruling his Batson motion because the state's offered explanation for striking a black venireperson was pretextual; (2) clearly erred in sentencing Pickett as a Class X offender because the state's evidence did not establish that all three prior convictions occurred at different times and places; and (3) the motion court clearly erred in finding that his counsel was not ineffective for failing to object to Pickett's sentence as a Class X offender. As to his first point, we found that the trial court erred in overruling Pickett's Batson motion prior to allowing Pickett to make an offer of proof that the state's proffered reasons for the strike were merely pretextual and, in fact, racially motivated. We remanded the cause to the trial court for an evidentiary hearing on the issue and entry of an appropriate order. With regard to Pickett's second point on appeal, we held that if the trial court found against Pickett on the Batson issue on remand and we affirmed that decision, Pickett's sentence would be vacated and the state would be permitted to present evidence to establish Pickett's status as a Class X offender because the inference that these crimes occurred at different times or in different places was not clear. In light of our disposition of Pickett's first two points, we did not address his third point.

On remand, the trial court found there was a sufficient non-racial basis for making the strikes and that there was sufficient evidence to establish that Pickett was a Class X offender and resentenced Pickett accordingly. We set aside the trial court's sentence of Pickett as a Class X offender. Pickett appeals, contending the trial judge clearly erred in: (1) refusing to consider the evidence Pickett offered from other trials in which the prosecutor, Don Tyson, demonstrated a pattern of using demeanor hunches to exclude black but not white venire members and (2) upholding the prosecutor's excuses for striking the black venire members where his reasons were shown under the totality of the circumstances to be pretextual excuses to cloak his violation of Pickett's and the excluded venirepersons' 14th Amendment equal protection rights. AFFIRMED AS TO BATSON MOTION, REMANDED WITH DIRECTIONS. Division Four holds: We affirm the trial court's denial of defendant's Batson motion. The trial judge did not clearly err in: (1) refusing to consider the evidence defendant offered from other trials in which prosecutor Don Tyson demonstrated a pattern of using demeanor hunches to exclude black but not white venire members and (2) upholding the prosecutor's excuses for striking black venire members. The cause is remanded to the trial court for a resentencing hearing consistent with our opinion in Pickett I. Citation: Opinion Author: Paul J. Simon, Judge Opinion Vote: AFFIRMED AS TO BATSON MOTION, REMANDED WITH DIRECTIONS. Pudlowski, P.J. and Hoff, J., concur. Opinion: In State v. Pickett, 926 S.W.2d 872 (Mo.App.E.D. 1996) (Pickett I), Tommy Pickett appealed his sentences as a Class X offender, Section 558.019 (RSMo 1996) (all references shall be to RSMo 1996 unless otherwise indicated), of a life term for assault in the first degree, Section 565.050, and a consecutive term of thirty years for burglary in the first degree, Section 569.160, in the Circuit Court of the City of St. Louis. For a detailed recitation of the facts, see Pickett I, 926 S.W.2d at 872-874. In Pickett I, defendant contended that the trial court: (1) erred in overruling his Batson motion because the state's offered explanation for striking a black venireperson was pretextual; (2) clearly erred in sentencing defendant as a Class X offender because the state's evidence did not establish that all three prior convictions occurred at different times and places; and (3) the motion court clearly erred in finding that his counsel was not ineffective for failing to object to defendant's sentence as a Class X offender.

As to his first point, we found that the trial court erred in overruling defendant's Batson motion prior to allowing the defendant to make an offer of proof that the state's proffered reasons for the strike were merely pretextual and, in fact, racially motivated. We remanded the cause to the trial court for an evidentiary hearing on the issue and entry of an appropriate order. With regard to defendant's second point on appeal, we held that if the trial court found against defendant on the Batson issue on remand and we affirmed that decision, defendant's sentence would be vacated and the state would be permitted to present evidence to establish defendant's status as a Class X offender because the inference that these crimes occurred at different times or in different places was not clear. In light of our disposition of defendant's first two points, we did not address his third point. On remand, the trial court found there was a sufficient non-racial basis for making the strikes and that there was sufficient evidence to establish that defendant was a Class X offender and resentenced defendant accordingly. On June 30, 1997, we set aside and held for naught the trial court's sentence of defendant as a Class X offender on September 6,

1. Defendant appeals, contending that the trial judge clearly erred in: (1) refusing to consider the evidence defendant

offered from other trials in which the prosecutor, Don Tyson, demonstrated a pattern of employing demeanor hunches to exclude black but not white venire members and (2) upholding the prosecutor's excuses for striking the black venire members where his reasons were shown under the totality of the circumstances to be pretextual excuses to cloak his violation of defendant's and the excluded venirepersons' 14th Amendment equal protection rights as articulated in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We affirm the trial court's denial of defendant's Batson motion and pursuant to our directions in Pickett I, 926 S.W.2d at 875, remand the cause to the trial court for a resentencing hearing. At the Batson hearing, the defendant presented the testimony of the public defender, Talot Bashir, who represented defendant during jury selection and trial of this case. Mr. Bashir testified that he took notes concerning the race and gender of the venire members during voir dire. Using the notes to refresh his recollection, Bashir testified to the race and gender of the members of the venire panel. After he testified, defendant's counsel argued that the prosecutor's strike of Ervin Calliom, a black male, for being nervous and not responding to a question about being arrested was pretextual in that the prosecutor struck Calliom who had been convicted of a misdemeanor involving a hit and run accident, but did not strike James Welton, a white male, who was convicted of misdemeanor tax evasion in federal court and stated during voir dire that the system treated him unfairly. The prosecutor responded that Calliom did not volunteer any information about his prior arrest and conviction despite the fact that it happened only a year before the trial in this case and Welton voluntarily spoke about his conviction for a federal misdemeanor which had occurred seven or eight

years earlier. Further, the prosecutor noted that Welton had served on a grand jury since his prior conviction. The trial judge found that there was no basis for the defendant's Batson challenge and there was sufficient legal basis other than race for the prosecution to strike this person. Defendant's counsel next argued that the prosecution's strike of Michelle Evans, a black female, because she "more or less avoided contact with me throughout my voir dire" was pretextual in that the prosecutor made no record at any time during the trial about this venireperson being inattentive and there were several other white people on the venire who responded to "just a few questions like this venire member." Further, defense counsel argued that there were several other similarly situated white people on the jury who did not respond to any questions at all and to just a few questions like this venire member. In support of his position, defense counsel stated that the following jurors and venirepersons were similarly situated to Michelle Evans: (1) David C. Grace, a white male, who responded to no questions asked by the prosecutor, responded to one question by the trial judge during voir dire as to why he had a St. Louis County zip code on the jury list, and was roughly the same age as Evans; (2) Tiffany Wright, a white female, whose only responses were that she had been arrested and pleaded guilty to misdemeanor trespassing as a minor (it was defendant's position that he was guilty of trespassing) and that she worked as a dental assistant; (3) Steve Boelling, a white male, whose only response during voir dire was to say that he was a sales representative and did not respond to the prosecutor's questions about whether anyone had been a victim of crime, even though the jury questionnaire indicated that he reported to have been the victim of crime and had prior jury duty in a civil trial; (4) James Welton, a white male, who testified that he had been "set up" and that he was unfairly convicted of a federal tax crime; and (5) Raymond Braddum, a white male, who admitted that he had a brother who was arrested for assault, one of the charges that was going to be heard by this jury. Further, defense counsel attempted to offer the files from three previous cases as evidence of the prosecutor's using hunches such as no eye contact to exclude black jurors. The prosecutor objected to the introduction of anything from another trial as irrelevant. Before ruling on the prosecutor's objection, the trial judge noted that defense counsel asked the court to take judicial notice of three cases out of an estimated one hundred fifty tried by the prosecutor and that the prosecutor had been in the circuit attorney's office "a long time." The trial judge ruled that the files were irrelevant, but allowed defense counsel to make an offer of proof. During his offer of proof, defense counsel first pointed out the white venirepersons struck by the prosecutor in this case: (1) Mr. Kohoutek, a white male, who stated during voir dire that he felt he was treated unfairly by the police; (2) John Wolf, a white male, who indicated his wife had been treated unfairly by the police and perhaps the court; and (3) Patrick

Turner, a white male, who had a DUI charge, a restraining order against him, and a rape charge filed against him two years before this case. Next, defense counsel again asked the court to take judicial notice of the transcripts in three prior trials conducted by the prosecutor in an attempt to prove that he only, or disproportionately, used the excuse of inattentiveness and failure to respond against black venire members to strike them from juries. Defense counsel noted the case of State v. Charles Matthews, cause number 911-10008. In Matthews, the prosecutor excluded a black venireperson, Carnes, for his failure to respond. In his only response to the prosecutor's questions on voir dire, Carnes, stated that he was self-employed as a painter. Defense counsel pointed out that there were four or five other similarly situated white persons who, like Carnes, did not respond to the prosecutor's questions on voire dire either. Defense counsel's second case was State v. Aaron Taylor, cause number 931-1000. In Taylor, the prosecutor struck Vernon Hemphill, who responded to the prosecutor's only question to him by stating that he was a security guard, because he felt he was very quiet. The prosecutor further reasoned that there was an extensive family in St. Louis with the name Hemphill and any time he saw the name attached to a criminal case it gave him "the willys." The trial judge noted that the prosecutor never asked Hemphill if he had any relatives who had criminal cases in St. Louis, found the strike to be pretextual and disallowed it. Defense counsel argued that "this is evidence of a pattern of [the prosecutor] coming up with demeanor excuses consistently to exclude black venire members whereas white jurors are struck only when there's obvious reasons why they would have a potential bias against the state." The prosecutor responded that he left one white person on the panel who had been convicted of a misdemeanor and struck another who had been convicted of a misdemeanor. The prosecutor reasoned that this was prima facie evidence of his using hunches about white venire persons as well. Further, he stated that although other persons didn't answer many questions, Evans was the only person who specifically avoided eye contact with him. In response to the prosecutor's remarks, defense counsel stated that the hunches used to strike white jurors were not based on demeanor. Although defense counsel never presented a third case, he finished his offer of proof by asking the court to take judicial notice of three cases tried by the prosecutor, where he struck black venire members on "demeanor hunches." After defense counsel had finished his offer of proof, the trial judge found there was a sufficient non-racial basis for striking Evans. Defense counsel next argued that the prosecutor's strike of Donetta Williams, a black female, was pretextual strike based on race in that the prosecutor struck Williams because she had two brothers serving time in the penitentiary, but did not strike Welton who had prior federal convictions and stated that he was treated unfairly. Defense counsel

further argued that the prosecutor's strike of Williams was pretextual because she was similarly situated to the victim in this case because she lived in the same neighborhood and her parents were assaulted in the same manner as the victim in this case. At trial, the prosecutor reasoned that he struck Williams because "she said that she didn't think it would affect her, but... [was] concerned that it might cause [her] to be less conviction prone." Defense counsel also claimed that juror Braddum, a white male who had a brother arrested for assault, was similarly situated to Williams and also allowed to remain on the jury. Defense counsel's final contention was that the prosecutor's strike of Betty McAfee was pretextual given the prior circumstances which would indicate the prosecutor's pattern of relying on hunches, specifically demeanor hunches against black venire members only. The prosecutor noted that McAfee had a brother who was in prison after being convicted of second degree burglary and that she recognized the defendant. In response to defense counsel's arguments, the prosecutor stated that Williams and another venire person, Betty McAfee, were the only two people serving on the venire who had relatives in prison serving felony convictions at the time of voir dire. The prosecutor noted that Welton was convicted of misdemeanors, was not sentenced to prison, and had served on a grand jury after his convictions. Further, the prosecutor stated that although Braddum had a brother who was arrested for assault, his brother was not found guilty and Braddum thought his brother was treated fairly. He further noted that McAfee knew the defendant. The trial judge found there was a sufficient non-racial basis for striking Williams and McAfee, and concluded that the trial court did not err in its ruling. ain Following the Batson hearing, the trial judge conducted a resentencing hearing. The prosecutor presented a court file containing an indictment and signed plea agreement as evidence that defendant was indicted and later pleaded guilty to a crime that occurred on April 28, 1981, and was sentenced to twenty-five years in prison. Next, the prosecutor presented a second court file, which provided evidence that defendant had pleaded guilty to first degree armed robbery for an incident occuring on January 7, 1977. The Circuit Clerk's Office was unable to find a copy of the third court file involving defendant and the prosecution presented xerox copy of the circuit attorney's file as the best evidence of defendant's third conviction. The xerox copies established that defendant pleaded guilty to a third felony, attemped robbery and armed criminal action, that occured on February 2, 1977. The trial court found that there was sufficient evidence to establish that defendant was a Class X offender. On May 23, 1997, defendant filed a motion to consolidate his appeal after the Batson hearing with his prior appeal to this court. On June 2, 1997, this court issued an order directing the parties to file memorandums with this court addressing whether all actions after the Batson hearing, including the resentencing are void. The parties submitted

memorandums and on June 30, 1997, we held the trial court's "sentence and judgment of September 6, 1996 is set aside and held for naught." Further, we directed the parties to file briefs as to the Batson hearing on September 6, 1996. In his first point on appeal, defendant contends that the trial court clearly erred in refusing to consider the evidence defendant offered from other trials in which the prosecutor demonstrated a pattern of employing demeanor hunches to exclude black but not white venire members. In assessing the use of a peremptory challenge, the trial judge must consider both his personal experiences with the prosecutor and any evidence offered by a defendant to show a pattern or practice of a prosecutor using peremptory challenges in a racially discriminatory manner. State v. Antwine, 743 S.W.2d at 51, 65 (Mo. banc 1987). However, the trial court has broad discretion in ruling on the admissibility of evidence when the issue is relevancy. State v. McMillan, 783 S.W.2d 82, 100 (Mo. banc 1990). Here, the trial judge considered the number of cases presented by defense counsel as evidence of a pattern by the prosecuting attorney to employ demeanor hunches to exclude black venire members in relation to the number of cases tried by the prosecutor during his long tenure at the Circuit Attorney's Office. In the three cases offered by defense counsel, there was only one disallowance of a peremptory strike by the prosecutor, and this is insufficient to establish a pattern. Based on the evidence, we cannot conclude that the trial court clearly erred. Point denied. In his second point on appeal, which contains four subpoints, defendant contends that the trial court clearly erred in upholding the prosecutor's excuses for striking the black venire members where his reasons were shown under the totality of the circumstances to be pretextual excuses to cloak his violation of defendant's and the excluded jurors' 14th Amendment equal protection rights as articulated in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically defendant contends: (A) [the prosecutor's] alleged reliance on Michelle Evans' failure to respond and make eye contact is clearly pretextual given the prosecutor's retention of white jurors who said the same or less on voir dire, including Tiffany Wright who revealed she was charged but not convicted of trespass (which appellant told police was all he had done in this case), David Grace who confirmed his residence in the city, Steve Boelling who only responded to identify his job and failed to respond to questions about prior jury duty and the crimes to which he was the victim as indicated on the juror sheets. Nor did [the prosecutor] explain why Ms. Evans' eyes and few answers warranted greater concern than white venire member Welton who stated he was "set up" and unfairly convicted of a federal tax crime. (B) [the prosecutor's] alleged reliance on Donetta Williams' brothers in prison for burglary is pretextual given his retention of white juror Braddum whose brother was arrested for assault and white juror Welton (who maintained he was unfairly prosecuted and convicted for federal tax crime) whereas Ms. Williams' was the juror most likely to empathize with the victim since her parents were pistol whipped and burglarized just like the victim in the case on trial. (C) [the prosecutor's] alleged reliance on Betty McAfee's unconfirmed belief that [defendant] may have purchased doughnuts at the shop where she worked and her brother's conviction of murder is pretextual given that [the prosecutor] did not explain why McAfee's belief that her brother was fairly convicted was

less credible than white venire member Welton's assertion he would not be unfair to the state despite his belief he was unfairly prosecuted and convicted or why Ms. McAfee (herself a burglary victim) would be more sympathetic to defendant that Tiffany Wright who herself got off with a trespass (the only offense of which defendant claimed guilt). (D) [the prosecutor's] reliance on Mr. Calliom's nervousness and failure to reveal his prior arrests fails to explain why the prosecutor was more concerned about his failure to speak up in comparison to white juror Steve Boelling who failed to respond to questions about his prior jury service and the crimes to which he was a victim. The standard for appellate review of a Batson issue was established by our Supreme Court in State v. Antwine, supra, 743 S.W.2d at 66: A finding of discrimination, or a finding of no discrimination, is a finding of fact. In a Batson context, the trial judge's findings will largely turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference. Findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm impression that a mistake has been committed. Thus, if the trial court's action is plausible under review of the record in its entirety, an appellate court may not reverse it although had it been sitting as the trier of fact it would have weighed the evidence differently. (Citations omitted)

Defendant's first subpoint is that the prosecutor's reliance on Michelle Evans' failure to respond and make eye contact is clearly pretextual given the prosecutor's retention of white jurors who said the same or less on voir dire, including Tiffany Wright who revealed she was charged but not convicted of trespass, David Grace who confirmed his residence in the city, Steve Boelling who only responded to identify his job and failed to respond to questions about prior jury duty and the crimes to which he was the victim as indicated on the juror sheets, and venire member Welton who stated he was "set up" and unfairly convicted of a federal tax crime. Here, the record demonstrates that Evans was the only person who presented the combination of few responses to the prosecutor's questions with poor eye contact. The trial court found that "there was sufficient non racial basis for making the strike" and we find no clear error. Defendant's second subpoint is that the prosecutor's reliance on Donetta Williams' brothers in prison for burglary as his rationale for exercising a peremptory strike is pretextual given his retention of white juror Braddum whose brother was arrested for assault and juror Welton who stated he was unfairly convicted of a tax crime. Here, the record establishes that Williams had two brothers in prison for burglary at the time of voir dire and, although Braddum's brother was arrested for assault, his brother was not convicted and never served time in jail.

Venireperson Welton is unlike Williams in that he was convicted of a misdemeanor federal tax crime for which he received no prison sentence and had served on a grand jury since his conviction, whereas the crimes Williams' brothers were charged with were similar to the ones at issue in this case. We find no clear error in the trial court's ruling. Defendant's third subpoint is that the prosecutor's reliance on Betty McAfee's belief that she would recognize the defendant as someone who may have purchased doughnuts at the shop where she worked and her brother's conviction of murder is pretextual given that the prosecutor did not explain why McAfee's belief that her brother was fairly convicted was less credible than white venire member Welton's assertion he would not be unfair to the state despite his belief he was unfairly prosecuted and convicted or why McAfee would be more sympathetic to defendant that Tiffany Wright who pleaded guilty to trespassing. Here, the record establishes that the prosecutor used a peremptory strike against McAfee because she was the only person on the venire besides Williams who had a family member serving time in prison at that time. Also, McAfee's brother, like Williams' brothers, was serving time for burglary, one of the charges against defendant in this case. Venire member Welton's situation was different from McAfee because neither he, nor any member of his family were serving, or had served time in prison. With regard to defendant's new claims that Tiffany Wright was not struck from the venire despite being similarly situated to venireperson McAfee, defendant did not make this argument at the Batson hearing and this contention will not be addressed. See State v. Plummer, 860 S.W.2d 340, 346 (Mo.App.E.D.1993). Defendant's final subpoint is that the prosecutor's reliance on Mr. Calliom's nervousness and failure to reveal his prior arrests fails to explain why the prosecutor was more concerned about his failure to speak up in comparison to white juror Steve Boelling who failed to respond to questions about his prior jury service and the crimes to which he was a victim. Here, the record establishes the the prosecutor struck venireperson Calliom because he did not volunteer any information about his prior arrest and conviction which occured approximately one year before the trial and that Calliom, when confronted with the information, did not want to talk about it because he was nervous. As noted earlier, defense counsel argued that Calliom was similarly situated to venireperson James Welton, a white male, who the prosecutor did not strike even though he had been convicted of misdemeanor tax evasion and, during voir dire, he stated that he had been treated unfairly by the judicial system. The prosecutor responded that Calliom did not volunteer any information about his prior arrest even though it happened only a year before the trial and Welton voluntarily spoke about his conviction for a federal misdemeanor which had occurred seven or eight years earlier. Further, the prosecutor noted that Welton had served on a grand jury since his conviction. In any event, defense counsel's contention on appeal that

Calliom is similarly situated to white juror Steve Boelling was not presented to the trial court at the Batson hearing, therefore we do not address this contention. See Plummer, 860 S.W.2d at 346. Since we have affirmed the trial court's rulings on the Batson motion, defendant's sentence is vacated and the cause is remanded to the trial court for a resentencing hearing pursuant to our instructions in Pickett I, supra, 926 S.W.2d at 875. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.