Opposition Brief — Vincent v. Missouri

Severe Court, |

FILBI

JAN 26

No. 88-797 mer

_———

In the Supreme Court of the United States

OCTOBER TERM, 1988

RUSSELL VINCENT,

Petitioner,

vs.

STATE OF MISSOURI,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME

CouRT OF THE STATE OF MISSOURI

BRIEF OF RESPONDENT IN OPPOSITION

TO THE PETITION

WILLIAM L. WEBSTER

Attorney General

State of Missouri

JoHn M. Morais, III*

Assistant Attorney General

State of Missouri

Scott L. TEMPLETON

Assistant Attorney General

State of Missouri

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Counsel for Respondent

*Counsel of Record

E. L. MenpenwmALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-305

"BEST AVAILABLE COPY

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QUESTIONS PRESENTED

WHETHER A TRIAL COURT MUST SUA SPONTE,

MAKE INQUIRY OF THE PROSECUTING ATTOR-

NEY TO EXPLORE THE POSSIBILITY OF PUR-

POSEFUL DISCRIMINATION IN THE USE OF PER-

EMPTORY CHALLENGES TO REMOVE VENIRE

MEMBERS OF THE CRIMINAL DEFENDANT’S

OWN RACE AFTER THE STATE SETS FORTH

EXPLANATIONS FOR ITS STRIKES.

WHETHER THE MISSOURI COURT OF APPEALS

ERRED IN DETERMINING THAT THE PETI-

TIONER DID NOT HAVE STANDING TO CLAIM

A VIOLATION OF HIS RIGHT TO EQUAL PRO-

TECTION OF THE LAW CONCERNING THE

STATE’S USE OF PEREMPTORY CHALLENGES

UNDER CIRCUMSTANCES WHERE FIVE MEM-

BERS OF PETITIONER’S OWN RACE REMAINED

TO SIT ON THE FINAL JURY PANEL.

II

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................

TABLE OF CONTENTS 0.ccccccsccssiasus

TABLE OF AUTHORITIES ......................

OPINION BELOW ............. ee Re re)

STATEMENT OF THE CASE .............

ARGUMENT—

I. No Affirmative Fact Finding Inquiry on the

Part of the Trial Court Is Required

A. Neither the Decision Below nor the

Factual Record Raises the Question Pre-

sented in the Petition ........

B. The Hearing Conducted Met and Ex-

ceeded the Factual Inquiry Require-

ments of Batson v. Kentucky

II. A Showing of Prejudice Is Required Under

Batson

CONCLUSION

III

TABLE OF AUTHORITIES

Cases

Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221,

31 L.Ed.2d 536 (1972)

Batson v. Kentucky, 476 U.S. , 106 S.Ct. 1712,

90 L.Ed.2d 69 (1986) ... ecitaaea eplanedy

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,

17 L.Ed.2d 705 (1967) ) umeneeie

Delaware v. Van Arsdale, 475 U.S. 673, 106 S.Ct.

1431, 89 L.Ed.2d 674 (1986) , as

Illinois v. Gates, 459 U.S. 1028, 103 S.Ct. 436, 74

L.Ed.2d 595 (1982)

Mapp v. Ohio, 367 U.S. 463, 81 S.Ct. 1684, 6 L.Ed.2d

1081 (1961) le cseasueanigeae

Satterwhite v. Texas, US. , 108 S.Ct. 1792,

100 L.Ed.2d 284 (1988)

State v. Blackmun, 744 S.W.2d 482 (Mo.App., S.D.

1988) . oe

State v. Butler, 731 S.W.2d 265 (Mo.App., W.D.

ka eee pes

State v. Crump, 747 S.W.2d 193 (Mo.App., E.D.

| Fa REV CLE ERODE U PORE

State v. Payton, 747 S.W.2d 290 (Mo.App., E.D.

1988) |

State v. Reliford, 753 S.W.2d 9 (Mo.App., W.D.

I, Se scsteantonaia 7 : , :

State v. Tolliver, 750 S.W.2d 624 (Mo.App., S.D.

1988)

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No. 88-797

In the Supreme Court of the United States

OCTOBER TERM, 1988

RUSSELL VINCENT,

Petitioner,

VS.

STATE OF MISSOURI,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME

COURT OF THE STATE OF MISSOURI

BRIEF OF RESPONDENT IN OPPOSITION

TO THE PETITION

OPINION BELOW

The opinion of the Missouri Court of Appeals af-

firming petitioner’s conviction of possession of a con-

trolled substance has been reported as State v. Vincent,

755 S.W.2d 400 (Mo.App., E.D. 1988).

STATEMENT OF THE CASE

Petitioner, Russell Vincent, was convicted of posses-

sion of a controlled substance in violation of § 195.020

RSMo. 1986. The facts related to this offense are sum-

marized in the opinion of the Missouri Court of Appeals,

Eastern District, State v. Vincent, 755 S.W.2d 400 (Mo.

App., E.D. 1988) (Petitioner’s Appendix D), and will

not be restated here.

Additional facts relevant to petitioner’s claims will

be stated in respondent’s Argument infra. Except as

otherwise noted, respondent does not dispute that peti-

tioner’s contentions were raised before the Supreme

Court of Missouri.

ARGUMENT

I. No Affirmative Fact Finding Inquiry on the Part

of the Trial Court Is Required.

A. Neither the Decision Below nor the Factual

Record Raises the Question Presented in the

Petition.

Petitioner claims for the first time that the trial

court failed to sua sponte question the Assistant Circuit

Attorney concerning the use of her peremptory chal-

lenges to strike black venirepersons. Following the dis-

closure of the State’s strikes, petitioner’s counsel objected

and called for the Assistant Circuit Attorney to explain

the reasons for her strikes. The State voluntarily com-

plied and petitioner’s counsel made an extensive record

by providing follow-up questions to each of the juror-

by-juror responses. The trial court then overruled the

objection. No exception was taken to the trial court’s

ruling on the objection without a further evidentiary

hearing or inquiry by the trial court. Similarly, the

issue was not considered by the Missouri Court of Ap-

peals.

Thus missing from this case is the essential factual

predicate of the Question Presented. This Court has

“consistently refused to decide federal constitutional

questions raised here for the first time on review of

State court decisions”. Illinois v. Gates, 459 U.S. 1028.

1029 n.2, 103 S.Ct. 436, 437 n.2, 74 L.Ed.2d 595 (1982).

It follows that any action taken would constitute an

impermissible advisory opinion. For this reason alone,

this failure to present the question to any court below

calls for denial of the petition.

4

B. The Hearing Conducted Met and Exceeded

the Factual Inquiry Requirements of Batson

v. Kentucky.

In Batson v. Kentucky, 476 US. —..... 106 S.Ct.

1712, 90 L.Ed.2d 69 (1986), this Court determined that

the criminal defendant must establish a prima facie case

of purposeful discrimination on the part of the prosecu-

tion. Upon making that showing, the burden passes to

the prosecution to come up with a neutral explanation

for the use of its peremptory challenge. From there,

the trial court “will have the duty to determine if the

defendant has established purposeful discrimination.” Id.

106 S.Ct. at 1724. This Court expressly declined to “for-

mulate particular procedures to be followed upon a de-

fendant’s timely objection to a prosecutor’s challenges.”

Id.

It is clear from Batson, that no specific mechanism

is required when the trial court carries out its duty to

determine if the defendant has established purposeful

discrimination. In the present case, petitioner’s trial

counsel carefully examined the Assistant Circuit Attor-

ney’s responses to support each of her six strikes. No

indication was made to the trial court that this method

of ascertaining the State’s motive was in any way consti-

tutionally deficient. It must be assumed that petitioner

and the trial court were satisfied with the procedure

undertaken to reach its conclusion that no discriminatory

motive was shown. As petitioner has failed to plead

facts indicating what additional questioning should have

taken place or what additional evidence would have been

adduced, it is wholly inappropriate at this final stage of

review, to suggest that further inquiry should have been

made.

II A Showing of Prejudice Is Required Under Batson.

Petitioner next challenges the Court of Appeals’ con-

clusion that he had no standing to bring a Batson chal-

lenge. The State utilized its peremptory challenges to

strike six blacks but nonetheless the venire panel was

made up of enough blacks that petitioner was tried be-

fore a jury consisting of five blacks and seven whites.

As the evidence against petitioner was overwhelming and

there was no racially sensitive issues present, the Court’s

ruling that no prejudice was alleged or shawn-is amply

supporied by the record and well within the confines

of Batson and previous decisions of this Court.

In the opinion below, the Court of Appeals deter-

mined that petitioner had no standing to bring the Batson

challenge as he had made no showing of prejudice as

a result of the jury selection procedures. The Court

noted the uncontroverted evidence against petitioner

stating that “it stretches the concept of prejudice to

the defendant beyond all reasonable limits to conclude

that a different result would ensue, where unanimity

by the jury is required, if the defendant had been al-

lowed six or more black jurors instead of five.” This

conclusion is amply supported by the factual record as

evidence established that three persons approached peti-

tioner while he was standing on a sidewalk, handed him

currency, and in return, petitioner handed each person

a small, shiny package. Later, the officers arrested peti-

tioner and seized a tin-foil packet containing cocaine and

one hundred and thirty dollars in currency. Petitioner’s

defense consisted of unfounded argument that the State

did not establish that petitioner had knowledge of the

nature of the substance found in his pocket. As such,

6

the jury was given absolutely no basis to acquit peti-

tioner.

The Court interpreted Batson as potentially pro-

tecting the equal protection rights of both the criminal

defendant and the individual jurors allegedly stricken

on account of their shared race. The Court concluded

that Batson was not intended to make the defendant

a vicarious guardian of rights other than his own, but

was limited in application to situations where actual or

implied prejudice has occurred in the defendant’s crim-

inal trial. The Court reasoned that the “overriding pur-

pose of Batson is to assure the defendant that he will

not be tried by a non-representative jury from which

his race has been purposefully and discriminatorily re-

moved.”

Although the opinion below does not limit Batson

to its facts, Batson presented an entirely different fac-

tual scenario. In Batson, this Court considered the most

extreme situation in which all blacks were stricken so

that the defendant was tried before an all white jury.

This Court expressly stated the purpose of its decision

was to determine on a case by case basis if permissibly

neutral selection criteria produced the “monochromatic

result.” Quoting Alexander v. Louisiana, 405 U.S. 625,

92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). This language

suggests that the absence of a monochromatic result

eliminates the need to make a Batson inquiry. Further,

it indicates a need to evaluate the final composition of

the jury in consideration of the equal protection claim.

Under the Missouri approach, one peremptory chal-

lenge could theoretically be utilized by the State to strike

a black juror, but the defendant could nonetheless be

7

tried by a jury consisting of twelve blacks. See State

v. Crump, 747 S.W.2d 193 (Mo.App., E.D. 1988). It is incon-

ceivable to suggest that even assuming an equal protection

violation as to that one strike, that a new trial would be re-

quired. To impose an absolute new trial requirement would

be akin to the exclusionary rule for illegally seized evidence.

See Mapp v. Ohio, 367 U.S. 463, 81 S.Ct. 1684, 6 L.Ed.2d

1081 (1961). Such a requirement would not serve to ensure

the plaintiff a fair trial, but would merely deter future

violations from taking place. In no way does Batson

indicate that such a rigid and far reaching penalty must

be imposed for an equal protection violation. Further,

it has been sufficiently impressed upon the prosecutors of

this State that the use of peremptory challenges to strike

minority members of the jury will not be tolerated. State

v. Payton, 747 S.W.2d 290 (Mo.App., E.D. 1988); State

v. Blackmun, 744 S.W.2d 482 (Mo.App., S.D. 1988):

State v. Tolliver, 750 S.W.2d 624 (Mo.App., S.D. 1988):

State v. Butler, 731 S.W.2d 265 (Mo.App., W.D. 1987):

State v. Reliford, 753 S.W.2d 9 (Mo.App., W.D. 1988).

It would serve no purpose to order a new trial on the

facts of this case where the State’s evidence was un-

contradicted, no racially sensitive issues were present,

and there is absolutely no indication that the jury was

anything other than impartial.

The Court of Appeals’ review for prejudice in the

present case constitutes, in essence, application of the

harmless error rule. Chapman v. California, 386 U.S.

18, 87 S.Ct. 824, 17 LEd.2d 705 (1967). This type of

judicial review “promotes public respect for the crim-

inal process by focusing on the underlying fairness of

the trial rather than on the virtually inevitable presence

of immaterial error.” Delaware v. Van Arsdale, 475

U.S. 673, 681, 106 S.Ct. 1431, 1436-37, 89 L.Ed.2d 674 (1986).

8

Application of this type of review has been limited by

this Court only to circumstances where the alleged con-

stitutional violations create “so much doubt on the fair-

ness of the trial process that, as a matter of law, they

can never be considered harmless.” Satterwhite v. Texas,

eae US. ......... 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284

(1988).

This is not a situation where the supposed constitu-

tional error permeated the entire judicial proceeding.

To suggest otherwise is to foster the discriminatory atti-

tude sought to be eliminated from criminal proceedings

in Batson. Given the premise that the error was in fact

harmless, a new trial in such situations would be ordered

solely to allow petitioner an opportunity to solicit one

black juror who would acquit him solely on account

of their shared race. This result must not be tolerated

as it encourages “ ‘litigants to abuse the judicial process

and bestirs the public to ridicule it.’” Delaware v. Van

Arsdale, supra, 106 S.Ct. at 1437. Both sides in criminal

prosecutions must be made to recognize that jurors are

jurors regardless of race. As there is no conflicting

case law which might indicate that the harmless error

rule does not apply in Batson cases, the petition for a

writ of certiorari must be denied.

CONCLUSION

In view of the foregoing, the respondent submits

that the Petition for Writ of Certiorari must be denied.

Respectfully submitted,

WiLLtiaM L. WEBSTER

Attorney General

State of Missouri

JOHN M. Morais, III

Assistant Attorney General

State of Missouri

Scott L. TEMPLETON

Assistant Attorney General

State of Missouri

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Counsel for Respondent