State of Missouri, Respondent, v. Vernon Brown, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State of Missouri, Respondent, v. Vernon Brown, Appellant. Case Number: No. 73575 Handdown Date: 09/12/1997 Appeal From: Circuit Court of the City of St. Louis, Hon. Michael Godfrey and Hon. David Mason Counsel for Appellant: Loyce Hamilton Counsel for Respondent: John M. Morris Opinion Summary: Brown was convicted of first degree murder and sentenced to death. During jury selection the prosecutor used ten of twelve peremptory strikes to remove women from the jury panel. The defendant objected, but the trial court refused to allow a hearing on whether the potential jurors were eliminated solely on the basis of their gender. REMANDED. Court en banc holds: (1) This case was tried three years before the Supreme Court of the United States extended Batson to gender challenges. Nevertheless, Batson and its progeny apply retroactively to all cases pending on appeal when the new rule is announced.(2) Standing alone, a motion to quash the jury panel is not an appropriate objection. However in this case, the defense counsel specifically identified potential jurors belonging to a protected group who were stricken by the state and asserted that denial of a hearing regarding the strikes violated the fourteenth amendment. This was sufficient to raise the Batson claim.(3) The case is remanded to the trial court for a hearing to determine whether the prosecutor used the state's peremptory strikes to remove members solely on the basis of gender. Citation: Opinion Author: PER CURIAM Opinion Vote: REMANDED WITH DIRECTIONS. Benton, C.J., Price, Limbaugh, Robertson, Covington, Holstein, JJ., and McHenry, Sr. J., concur. White, J., not sitting. Opinion:

In 1991, appellant Vernon Brown was convicted of first degree murder and sentenced to death. A motion for post- conviction relief was filed and overruled. This Court has jurisdiction of the appeal. Mo. Const. art. V, sec. 3. During the jury selection process, the state used ten of its twelve peremptory strikes to remove women from the jury panel. Defense counsel objected to the state's use of its strikes to eliminate women from the venire. The trial court refused to allow a hearing on whether the state removed these venirepersons solely on the basis of their gender. The Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. Batson v. Kentucky, 476 U.S. 79 (1986). In 1994, the United States Supreme Court expanded Batson 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 (1994). Brown unsuccessfully raised a gender based Batson challenge in 1991, three years before J.E.B. The state concedes Batson and its progeny apply retroactively to all cases pending on appeal when the new rule is announced. See Griffith v. Kentucky, 479 U.S. 314 (1987). In the present case, defense counsel moved to quash the entire jury panel based on both racial and gender Batson violations. Because quashing the jury panel will not "really correct the error," such motion is not an appropriate objection. State v. Parker, 836 S.W.2d 930, 936 (Mo. banc), cert. denied, 506 U.S. 1014 (1992). Cases decided by the court of appeals since Parker have held that a motion to quash the entire panel is ineffective to preserve the Batson challenge. State v. Sutherland, 859 S.W.2d 801, 803 (Mo. App. 1993); State v. Tims, 865 S.W.2d 881, 884 (Mo. App. 1993); State v. Shelton, 871 S.W.2d 598, 599-600 (Mo. App. 1994); Christensen v. State, 875 S.W.2d 576, 578-579 (Mo. App. 1994). However, this case was tried prior to Parker. In Parker, this Court exercised discretion to consider the Batson issue preserved for appeal despite the absence of defendant seeking any relief other than a motion to quash the jury panel. Moreover, as the following exchange indicates, the defense objection in this case went further and was more specific: [Defense Counsel]: . . . I am also moving on the grounds that the strikes were done in a way as to discriminate against women as well, I'm not saying that Batson deals specifically with the issue of gender but I'm saying that I'm making that objection as well. THE COURT: Very well. [Prosecutor]: I'm asking that that be ruled out of this discussion, the part about gender, since that has nothing to do with Batson. THE COURT: I'll sustain that, that will be a point that if necessary the defendant can urge on appeal. [Defense Counsel]: Okay. The Court's failure to allow me to make a record with regard to the State discriminating in terms of gender violates my client's rights to due process [and] equal protection, . . . . THE COURT: Very well. Overruled.

The defense counsel then identified, by name and gender, ten women who had been stricken by the state. The prosecutor stipulated to the identity and gender of the venirepersons he had stricken. Defense counsel's specific identification of venirepersons belonging to a protected group that were stricken by the state and asserting that denial of a hearing regarding the strikes violated the Equal Protection Clause was sufficient to raise the Batson claim. Parker, 836 S.W.2d at 939. Certainly neither the prosecutor nor the trial judge were misled by any lack of specificity in the gender Batson objection. Having asked for relief and objected to the trial court's handling of the problem, the issue was preserved for appeal. State v. Grim, 854 S.W.2d 403, 416 (Mo. banc), cert. denied, 114 S.Ct. 562 (1993). As was the case in Parker, supra, this case is remanded to the trial court for a hearing to determine whether the prosecutor used the state's peremptory strikes to remove members solely on the basis of gender. Upon completion of that hearing, the record of the proceeding shall be certified to this Court. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.