            SUPREME COURT OF MISSOURI
                                       en banc



STATE OF MISSOURI,                           )    Opinion issued August 23, 2016
                                             )
                             Respondent,     )
                                             )
v.                                           )    No. SC95221
                                             )
ROSCOE R. MEEKS,                             )
                                             )
                             Appellant.      )


        APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
                   The Honorable Margaret M. Neill, Judge

       Roscoe Meeks was tried on charges of first-degree assault and armed criminal

action. Following voir dire, Meeks challenged one of the prosecutor’s peremptory strikes

under Batson v. Kentucky, 476 U.S. 79 (1986). The trial court overruled this challenge,

the case went to trial, and the jury found Meeks guilty on both counts. On appeal, Meeks

argues that the trial court erred in denying his Batson challenge. This Court has

jurisdiction. Mo. Const. art. V, § 10. Because the prosecutor failed to offer a

race-neutral explanation for the strike, Batson requires that Meeks’ convictions be

vacated and his case remanded.
      I.     Background

             A.     Factual Allegations

      Meeks’ alleged victim (“Victim”) is a Mexican native. At the time of alleged

crime, Victim was living in the City of St. Louis in an apartment he shared with two

roommates (“Roommates”). On the morning of July 4, 2012, Roommates invited Victim

to visit friends in the apartment next door. Roommates left the apartment and waited

outside for Victim to join them. While they waited, a man (later identified as Meeks)

approached them and said he was looking for the man who took his girlfriend.

      When Victim stepped out of the apartment carrying a can of beer, Meeks accosted

him and said Victim was the man he was looking for. Victim said he did not know who

Meeks was looking for and turned to walk away. Meeks then took a gun from behind his

back and pointed it at the back of Victim’s head. Seeing Meeks’ gun, Roommates ran

back into the apartment. This alerted Victim, who turned and tried to take the gun away

from Meeks. During the struggle, Meeks shot Victim in the lower abdomen. As Meeks

was preparing to shoot again, Victim threw the beer can at him and tried to get away.

Meeks then shot Victim a second time and fled the scene.

      Police interviewed several witnesses at the scene who gave a description of

Victim’s assailant. These witnesses also led police to a young woman (“CC”), who had

been Meeks’ girlfriend and who had spent time at Victim’s apartment complex because

she had friends who lived there. When the police relayed the witnesses’ description of

Victim’s assailant to CC, she agreed that it described Meeks. Following Meeks’ arrest,

police conducted an in-person lineup in which both Victim and one of the Roommates


                                            2
were able to identify Meeks. Meeks was charged with one count of assault in the first

degree under section 565.050 1 and one count of armed criminal action under section

571.015.

                B.     Voir Dire

        After the prosecutor concluded her voir dire of the venire, 2 defense counsel asked

whether anyone would have difficulty presuming that Meeks was innocent. Venireperson

A responded:

               [VENIREPERSON A]: Statistically speaking, we live in the seventh
        most dangerous city in the United States. And I hate to go into race here.
        But statistically, we’re in St. Louis; he’s black. There’s more into it, but I
        don’t know those facts. But it’s more than likely he did something. I’m
        not saying – what’s the word. It’s more likely he’s guilty.
               ….
              However, I personally don’t believe there’s evidence backing that
        up. There is no weapon, there is no –
               [DEFENSE COUNSEL]: You don’t know. We haven’t gotten into
        the evidence yet.
               ….
        And I don’t want to open a can of worms the Judge doesn’t want to open at
        ten to five with a few things said there. But does anyone share any of those
        sentiments, or is everyone able to do what the Judge is asking of them and
        required in the instruction and presume that [Meeks] is innocent because
        you haven’t heard any evidence yet? Is everyone able to do that? [No
        responses indicated.] All right. Thank you.

        At the conclusion of voir dire, the venire was excused and the trial court heard

motions to strike for cause. Among other motions, the prosecutor moved to strike



1
    Unless otherwise noted, all statutory references are to RSMo 2000.
2
   The venire consisted of 33 white venirepersons, 12 African-American venirepersons, and
three venirepersons who declined to state their race.


                                                3
Venireperson A. Defense counsel did not object, and the motion was sustained. Later, in

proceedings held off the record, the prosecutor and defense counsel made their

peremptory strikes.

               C.      Meeks’ Batson Challenge

       After the prosecutor and defense counsel announced their peremptory strikes, 3 the

trial court went back on the record to hear Meeks’ Batson challenge.

              THE COURT: Go ahead. [Defense counsel,] you indicated you
       have a Batson motion?
               [DEFENSE COUNSEL]: Yes, your Honor. The State is moving to
       strike [Venireperson C.]
               THE COURT: Okay.
              [DEFENSE COUNSEL]: And it just appeared to me that there were
       similarly situated individuals who also only said what they do for work.
       [Venireperson W] sitting behind her [and Venireperson N].

The trial court then asked the prosecutor to respond:

               [PROSECUTOR]: The reason I struck [Venireperson C] is that when
       [Venireperson A] made very racist statements in the box, there was a huge
       outcry behind me. I struck [Venireperson H]; I’ve struck [Venireperson C].
       The rest of the row was struck already for cause. That leaves
       [Venireperson D], who I could pretty much place my bets on the defense
       will likely strike her. So to make sure I don’t start out the case where there
       is a person of Mexican descent and African-American descent upset about
       racial issues, I feel better if no one in that row directly behind me is



3
   In a felony trial, both the state and the defense are entitled to six peremptory challenges, plus
an additional peremptory challenge for use only against the alternate juror pool. §§ 494.480,
494.485. The state must exercise its peremptory strikes first, and then the defendant exercises
his. § 494.480.4. On appeal, the parties stipulate that the prosecutor exercised three peremptory
strikes against white venirepersons, three peremptory strikes against African-American
venirepersons, and one strike of a venireperson in the alternate juror pool who declined to state
his race. Defense counsel exercised six peremptory strikes against white venirepersons, and one
strike against a white venireperson in the alternate juror pool.


                                                 4
      serving. So I made my bets the defense is more likely to strike
      [Venireperson D] than [Venireperson C], and I chose [Venireperson C].
             THE COURT: Well, the Court will agree that [Venireperson A’s]
      statements were definitely racist, and the Court finds that the State’s
      reasoning for striking [Venireperson H] and [Venireperson C] are racially
      neutral. Because that what [Venireperson A] had to say was quite offensive
      to the Court and I’m sure everyone else in the courtroom. Did you have a
      Batson motion on [Venireperson H]? I guess not.
            [DEFENSE COUNSEL]: No, your Honor. I didn’t know when that
      happened exactly who expressed some sort of disgust. I think like ten
      people in the courtroom made a gasp when that happened. It was hard to
      pinpoint it was [Venireperson C].
               [PROSECUTOR]: I would agree most of the courtroom gasped.
      There was someone directly behind me who yelled, “let’s open that can,”
      and it was a woman’s voice. But I didn’t want to spin around, and the
      statement was over. And there’s a difference between being offended,
      which I think we all were, most of the courtroom gasped, including my
      table, and a difference of yelling that and interjecting that into a case. And
      I feel like, “let’s open that can” is different than just being offended.
               THE COURT: Anything further?
               [DEFENSE COUNSEL]: No, your Honor, that was is [sic] it.
               THE COURT: All right.

      Thereafter, the trial court dismissed the remainder of the venire, and the

jury was sworn and seated. The jury consisted of ten white jurors, one

African-American juror, and one juror who declined to state his race. The

alternate juror was African-American. Ultimately, this jury found Meeks guilty on

both counts.

      II.      Analysis

      In his first point on appeal, Meeks claims that the trial court clearly erred in

denying his Batson challenge because the prosecutor failed to offer a race-neutral




                                             5
explanation for striking Venireperson C. The Court need not address Meeks’ other two

points on appeal because this point is dispositive.

               A.      Standard of Review

       In reviewing a trial court’s findings on a Batson challenge, the standard of review

is for clear error. State v. Marlowe, 89 S.W.3d 464, 470 (Mo. banc 2002). The trial

court’s findings are clearly erroneous if “the reviewing court is left with the definite and

firm conviction that a mistake has been made.” State v. Bateman, 318 S.W.3d 681, 687

(Mo. banc 2010). “The trial court’s findings on a Batson challenge will be set aside if

they are clearly erroneous ….” State v. McFadden, 216 S.W.3d 673, 675 (Mo. banc

2007). 4




4
   Disparate treatment of similarly situated jurors is a highly relevant consideration in
determining whether a defendant has carried his or her burden in step three to show that the
prosecutor’s race-neutral explanation for a strike was pretextual, and the weight that a trial court
gives such evidence in a particular case is entitled to some deference on appeal. But step two is
very different. Disparate treatment plays no role in determining whether the prosecutor has
carried the burden under step two to provide a reasonably specific and clear race-neutral
explanation for the strike. See Hernandez v. New York, 500 U.S. 352, 362 (1991) (“disparate
impact should be given appropriate weight in determining whether the prosecutor acted with a
forbidden intent, but it will not be conclusive in the preliminary race-neutrality step of the Batson
inquiry”); see also State v. Carter, 415 S.W.3d 685, 689 (Mo. banc 2013) (“At [the second]
stage, the proffered explanation will be deemed race-neutral if it is not inherently discriminatory,
even if it has a disparate impact on venirepersons of a particular race group.”). As a result, even
though appellate courts normally will defer to a trial court’s determination under step three as to
whether the prosecutor’s objectively race-neutral explanations were pretextual because that
decision will be based on an assessment of the credibility of the prosecutor’s explanation and the
inferences to be drawn from disparate treatment of similarly situated venirepersons, Hernandez,
500 U.S. at 365, an appellate court need not give such deference to a trial court’s determination
under step two on the question of whether the prosecutor satisfied the burden to offer an
objectively race-neutral explanation. Id. at 359 (“In evaluating the race neutrality of an
attorney’s explanation, a court must determine whether, assuming the proffered reasons for
peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of
law.”).

                                                 6
              B.      The Three-Step Procedure for a Batson Challenge

       The Equal Protection Clause in the United States Constitution prohibits parties

from using a peremptory challenge to strike a potential juror on the basis of race. State v.

Carter, 415 S.W.3d 685, 688 (Mo. banc 2013) (citing Batson, 476 U.S. at 89). In Batson,

the Supreme Court described a three-step, burden-shifting process for challenging a

peremptory strike on this basis. Batson, 476 U.S. at 96-98. The Supreme Court,

however, “decline[d] … to formulate particular procedures to be followed upon a

defendant’s timely objection to a prosecutor’s challenges.” Id. at 99. To fill that void,

this Court articulated a three-step procedure for trial courts to use in evaluating a Batson

challenge:

       First, the defendant must raise a Batson challenge with regard to one or
       more specific venirepersons struck by the state and identify the cognizable
       racial group to which the venireperson or persons belong. The trial court
       will then require the state to come forward with reasonably specific and
       clear race-neutral explanations for the strike. Assuming the prosecutor is
       able to articulate an acceptable reason for the strike, the defendant will then
       need to show that the state’s proffered reasons for the strikes were merely
       pretextual and that the strikes were racially motivated.

State v. Parker, 836 S.W.2d 930, 939 (Mo. banc 1992) (citations and footnote omitted).

       Resolution of Meeks’ appeal turns solely on the second step. The state argues that

Meeks failed to satisfy the first step of the Parker procedure because defense counsel

failed to identify Venireperson C’s race. The Court need not consider this argument

because the state concedes any such defect “dropped out” 5 when the prosecutor offered



5
  State v. Parker, 836 S.W.2d 930, 938 (Mo. banc 1992) (stating that the preliminary issue of
whether the defendant has satisfied step one becomes moot “[o]nce an explanation has been

                                               7
explanations for the strike and, in any event, is now moot because Meeks and the state

have stipulated on appeal that Venireperson C is African-American. Similarly, this Court

need not consider whether Meeks carried his burden under the third step to show that the

prosecutor’s race-neutral explanation was pretextual and, therefore, that her decision to

strike Venireperson C was motivated by race. The burden does not shift back to the

defendant to make such a showing unless and until the prosecutor offers “reasonably

specific and clear race-neutral explanations for the strike.” Id. Because the prosecutor

failed to offer such an explanation, the trial court erred in not sustaining Meeks’ Batson

challenge on that basis.

               C.      The Prosecutor Failed to Offer a Race-Neutral Explanation

       In reviewing whether the prosecutor’s trial court explanations 6 for striking

Venireperson C were sufficient to satisfy her burden under the second step of the Parker

procedure, this Court must consider the context of those explanations. This is not so that

the Court can determine whether a race-neutral explanation was genuine or pretextual,

however. That is the third step. Instead, context is important in the second step solely to

ensure that the explanation the prosecutor offered at trial was objectively race-neutral.



offered by the prosecutor or required by the court and the trial court has ruled on the ultimate
question of intentional discrimination”).
6
   Because the prosecutor has the burden of providing a race-neutral explanation under step two
of the Parker procedure, trial and appellate courts may consider only the explanations actually
offered by the prosecutor at trial. State v. Bateman, 318 S.W.3d 681, 690 (Mo. banc 2010) (“the
trial or appellate court is [not] permitted to peruse the record to find legitimate reasons why the
potential juror might have been stricken …. The trial and appellate courts cannot identify
additional reasons why the prosecutor could have stricken the venireperson but rather must look
at whether the reason or reasons given by the prosecutor are race-neutral ….”) (emphasis in
original).

                                                 8
Hernandez v. New York, 500 U.S. 352, 360 (1991) (“In evaluating the race neutrality of

an attorney’s explanation, a court must determine whether, assuming the proffered

reasons for peremptory challenges are true, the challenges violate the Equal Protection

Clause as a matter of law.”); Rice v. Collins, 546 U.S. 333, 338 (2006) (‘“The second step

of this process does not demand an explanation that is persuasive, or even plausible’; so

long as the reason is not inherently discriminatory, it suffices.”) (quoting Purkett v. Elem,

514 U.S. 765, 767-768 (1995)).

       Taking the explanation offered by the prosecutor in this case at face value, she was

concerned that the unidentified venireperson who responded to the overtly racist remarks

by Venireperson A with the statement “let’s open that can” should not serve on this jury.

Even though the prosecutor did not know which venireperson made this retort, she

believed that it was made by a woman seated in the row directly behind the prosecutor.

Only three female venirepersons remained in that row: Venireperson H (who identified

herself as white); Venireperson C (who the parties stipulate is African-American); and

Venireperson D (who the parties stipulate is white). By this time, the prosecutor had

already used four of her six peremptory strikes. She used her fifth strike to exclude

Venireperson H. The stage thus was set for the subject of Meeks’ Batson challenge, i.e.,

the prosecutor’s peremptory strike of Venireperson C.

       The prosecutor faced a clear dilemma at this point. Two female venirepersons

(i.e., Venireperson D and Venireperson C) remained in the row from which the

prosecutor believed the “let’s open that can” retort originated. The prosecutor wanted to

ensure that both venirepersons were excluded from the jury, but she only had one


                                              9
peremptory strike left with which to accomplish her goal. In other words, she could

either (a) strike Venireperson D and rely on Meeks to use one of his peremptory

challenges to strike Venireperson C or (b) strike Venireperson C and rely on Meeks to

strike Venireperson D. She could not strike both. When the prosecutor explained how

she made this choice, she stated: “So I made my bets the defense is more likely to strike

[Venireperson D] than [Venireperson C], and I chose [Venireperson C].”

       The trial court overruled Meeks’ Batson challenge after concluding that “the

State’s reasoning for striking [Venireperson H] and [Venireperson C] are racially

neutral.” This was clear error because it failed to focus on the strike that Meeks actually

challenged. Meeks does not challenge the prosecutor’s decision to use her fifth strike to

exclude Venireperson H from the jury. Instead, he challenges the prosecutor’s decision

to use her sixth and last strike to remove Venireperson C, and the statements offered by

the prosecutor to explain that decision were not race neutral.

       To be sure, the prosecutor’s desire to exclude all of the female venirepersons in

the row from which she believed the “let’s open that can” retort originated would have

been a sufficiently clear and race-neutral explanation if Meeks had challenged her

decision to strike all three (or even the last) of Venireperson H, Venireperson C and

Venireperson D. But that is not the choice the prosecutor faced, and it is not the

challenge Meeks raised. Once the prosecutor used her fifth strike to exclude

Venireperson H, she was left with a very different choice. To ensure that neither

Venireperson C nor Venireperson D would serve on the jury, the prosecutor had to




                                            10
choose between striking Venireperson C and striking Venireperson D, 7 and she made this

choice based on which of these two venireperson she believed Meeks was more likely to

strike if the prosecutor struck the other. The prosecutor failed to satisfy the second step

of the Parker procedure because she did not offer “reasonably specific and clear race-

neutral explanations for [that] strike.” Parker, 836 S.W.2d at 939.

       To explain her decision to strike Venireperson C, the prosecutor first stated: “So to

make sure I don’t start out the case where there is a person of Mexican descent and

African-American descent upset about racial issues, I feel better if no one in that row

directly behind me is serving.” This might explain a decision to strike all of the female

venirepersons in that row, but it fails to explain the decision the prosecutor actually made,

i.e., to strike Venireperson C rather than Venireperson D. More importantly, this

statement cannot satisfy the prosecutor’s burden to offer a race-neutral explanation under

the second step of the Parker procedure because the statement explicitly refers to

Venireperson C’s race. 8


7
   Oddly, the prosecutor may never have faced this choice had she not argued successfully
against Meeks’ motion to strike Venireperson D before the question of peremptory strikes was
reached. Though several reasonable inferences may be drawn from this, one is that the
prosecutor’s stated objective to exclude all of the venirepersons from the suspect row was
pretextual under step three. The Court need not consider whether the trial court should have
determined that the prosecutor’s explanations were pretextual, however, because the Court holds
that neither of her statements carried the prosecutor’s burden to offer a race-neutral explanation
under step two.
8
   The state argues that, when the prosecutor referred to not wanting a “person of Mexican
descent and African-American descent upset about racial issues,” she was referring to Victim
and Meeks, respectively. This argument is not persuasive. The prosecutor made this statement
in the context of a Batson challenge and, specifically, as part of her explanation for her decision
to strike Venireperson C. There is no reason for the prosecutor to refer to Victim and Meeks in
that context because the prosecutor’s use of peremptory strikes could not alter Victim’s ethnicity
or Meeks’ race, nor could such strikes have any impact on whether Victim or Meeks (or both of

                                                11
       The state argues that this Court should disregard the prosecutor’s statement

explicitly referring to race and ethnicity and focus, instead, on her second statement

that (because the prosecutor was down to her last peremptory strike) she “made my bets

the defense is more likely to strike [Venireperson D] than [Venireperson C], and I chose

[Venireperson C].” Even viewed in isolation from the prosecutor’s explicitly race-based

rationale, as the state suggests, this statement fails to satisfy the prosecutor’s burden to

offer a race-neutral explanation for striking Venireperson C.

       There is no explicit reference to race in the prosecutor’s statement that she chose

to strike Venireperson C and rely on Meeks to strike Venireperson D because she

believed that Meeks would not strike Venireperson C if the prosecutor struck

Venireperson D. Unlike the prosecutor’s first statement, therefore, which failed to satisfy

the prosecutor’s burden under the second step of the Parker procedure because it did not

offer an explanation for the strike that was objectively not based on race, the prosecutor’s

second statement fails because it did not offer an explanation for the strike at all. The

statement merely attributes the prosecutor’s decision (i.e., to strike Venireperson C) to a

belief she formed at the same time (i.e., that Meeks would be more likely to strike

Venireperson D than Venireperson C). The statement does not offer any explanation (far



them) would “start out [the trial] … upset about racial issues.” Instead, because the prosecutor
made this statement in the context of explaining her decision to strike Venireperson C, her
reference to a “person of Mexican descent and African-American descent” likely was directed at
the ethnicity of Victim and the race of Venireperson C. In any event, it was the prosecutor’s
burden to provide “reasonably specific and clear race-neutral explanations for the strike,”
Parker, 836 S.W.2d at 939, and an explanation based explicitly on someone’s race does not
satisfy this standard merely because it is ambiguous as to which person’s race the prosecutor
was focused on in deciding whom to strike.

                                               12
less a race-neutral explanation) for either her decision to strike Venireperson C or her

belief that Meeks would not do so.

       For all the prosecutor’s “explanation” tells us, she may have based her belief that

Meeks would be more likely to strike Venireperson D than Venireperson C on the fact

that both Meeks and Venireperson C are African-American. Or the prosecutor may have

based this belief on the fact that Meeks previously had tried (and failed) to have

Venireperson D stricken for cause, or some other consideration. Because the prosecutor

offered no explanation for why she believed Meeks would strike Venireperson D but not

Venireperson C, her statement that she based her decision to strike Venireperson C on

that belief explains nothing.

       If a prosecutor can satisfy the burden under the second step merely by

“explaining” that the decision to strike a vernireperson was based on some other belief or

conclusion without offering any explanation for that other belief or conclusion, then the

second step would serve no purpose. A prosecutor could respond to any Batson

challenge merely by stating: “I decided to strike Venireperson X because I believed that

was the best strategy.” Such statements do not satisfy the prosecutor’s burden in the

second step. Instead, the prosecutor must articulate “reasonably specific and clear race-

neutral explanations for the strike.” Parker, 836 S.W.2d at 939 (emphasis added).

“[T]here are any number of bases on which a prosecutor reasonably may believe that it is

desirable to strike a juror who is not excusable for cause. … [H]owever, the prosecutor

must give a clear and reasonably specific explanation of his legitimate reasons for




                                             13
exercising the challenges.” Batson, 476 U.S. at 98 n.20 (emphasis added) (quotation

marks omitted).

       Here, the prosecutor failed to offer a race-neutral explanation for her decision to

strike Venireperson C. Even though the prosecutor stated she struck Venireperson C

because she believed Meeks would not do so, this statement does not explain her basis for

that belief. If her belief was based on Venireperson C’s race, then the prosecutor’s

decision to strike Venireperson C also was based on race. Because the prosecutor failed

to offer any explanation (let alone a race-neutral explanation) for her belief that Meeks

was more likely to strike Venireperson D than Venireperson C, the trial court clearly

erred in determining that the prosecutor satisfied her burden under the second Parker step

to offer a race-neutral explanation for her decision to strike Venireperson C. In light of

this failure and the prosecutor’s other explanation based explicitly on race and ethnicity

(whatever its subjective meaning), Meeks’ Batson challenge should have been sustained. 9

       III.    Conclusion

       For the reasons set forth above, the trial court clearly erred in denying Meeks’

Batson challenge. Because the prosecutor failed to offer a “reasonably specific and clear




9
   The state relies on Howard v. Senkowski, 986 F.2d 24 (2d Cir. 1993), to argue that this Court
should apply a dual-motivation analysis if it determines that one of the prosecutor’s explanations
was race-neutral but the other was not. This Court expressly declined to follow this approach in
State v. McFadden, 191 S.W.3d 648, 657 (Mo. banc 2006) (“To excuse such obvious prejudice
because the challenged party can also articulate nondiscriminatory reasons for the peremptory
strike would erode what little protection Batson provides against discrimination in jury
selection.”). Moreover, there is no occasion to reconsider this question in the present case
because the Court holds that neither of the explanations the prosecutor offered in the trial court
was sufficient to satisfy her burden under the second step of the Parker procedure.

                                               14
race-neutral explanation[] for the strike,” Parker, 836 S.W.2d at 939, Meeks’ convictions

must be vacated and the case remanded.



                                                     _____________________________
                                                     Paul C. Wilson, Judge



All concur.




                                           15
