                In the Missouri Court of Appeals
                        Eastern District
                                              DIVISION THREE

STATE OF MISSOURI,                                  )    ED106450
                                                    )
           Respondent,                              )    Appeal from the Circuit Court
                                                    )    of Lincoln County
                                                    )    17L6-CR00428
v.                                                  )
                                                    )
SHAAMAR R. STEELE,                                  )    Honorable David H. Ash
                                                    )
           Appellant.                               )    FILED: April 16, 2019

                                                Introduction

           Shaamar R. Steele (Steele) appeals from a sentence and judgment entered pursuant to a

jury verdict convicting him of unlawful possession of a weapon, assault of law enforcement

officers, resisting arrest, and possession of drug paraphernalia. He asserts the trial court erred in

granting the State’s motion in limine and in overruling his Batson 1 challenge. We affirm.

                                                Background

           The State charged Steele as a prior and persistent offender in an amended information

with one count of possession of a controlled substance (Count I), one count of unlawful

possession of a weapon (Count II), two counts of assault of a law enforcement officer in the

second degree (Counts III and IV), one count of resisting arrest (Count V), and one count of



1
    Batson v. Kentucky, 476 U.S. 79 (1986).
misdemeanor possession of drug paraphernalia (Count VI). In brief summary, the following

evidence was adduced at the January 2018 trial, as relevant to the issues raised on appeal. Both

Officer Jason Maskey and Officer Sean Hendel of the City of Louisiana, Missouri Police

Department testified as follows. On October 23, 2016, they questioned Steele pursuant to an

ongoing investigation. As Officer Hendel questioned Steele, Officer Maskey noticed a bulge in

Steele’s waistband that appeared to be a weapon. When asked what was in his waistband, Steele

began sweating and acting nervously. The officers requested to perform a pat down, and Steele

ran away. Officer Maskey announced Steele was under arrest, and both Officers Maskey and

Hendel gave chase, eventually cornering Steele against a chain-link fence. When cornered,

Steele reached into his waistband, drew out a large knife that he raised above shoulder level, and

started towards the officers. Fearing physical harm, Officer Hendel announced “Taser” three

times and tased Steele. The Taser prongs were later removed from Steele’s back. Officer

Hendel submitted a use-of-force report in accordance with Louisiana Police Department policy.

A jury convicted Steele of unlawful possession of a weapon, assault of law enforcement officers,

resisting arrest, and possession of drug paraphernalia, as charged in Counts II-VI. 2 Steele does

not challenge on appeal the sufficiency of the evidence supporting his convictions.

Taser Certification

           The State filed a pretrial motion in limine to prohibit argument or testimony regarding the

Taser certification of the two law enforcement officers involved Steele’s arrest. The trial court

granted the State’s motion in limine after a hearing. At trial, Steele reasserted his objection to

the motion in limine and made an offer of proof presenting Officer Hendel’s testimony and

documents regarding his Taser certification. Officer Hendel submitted a certificate of Taser



2
    The jury acquitted Steele of the charge in Count I.

                                                          2
training from the Mineral Area College Law Enforcement Academy dated May 11, 2012 ; a

certificate of Taser training from Byrnes Mill Police Department—which is where he worked

prior to the Louisiana Police Department—dated January 30, 2015 ; and a certificate of Taser

training from the Louisiana Police Department dated August 23, 2017. Officer Hendel agreed he

was trained and certified in operating a Taser, he had to recertify his training and certification

once a year, and he was “not able to produce any certification” showing he was certified or

recertified to use a Taser on October 23, 2016. Moreover, he further agreed that when he joined

the Louisiana Police Department from the Byrnes Mill police department, he was not required to

take a Taser class before he was issued a Taser. Steele argued that the jury should hear that

Officer Hendel “was not certified” to use the Taser at the time he used it on Steele, because it

was relevant to Officer Hendel’s overall credibility. The trial court denied the offer of proof as

irrelevant.

         Further, Steele made an offer of proof of the testimony of April Epperson (Chief

Epperson), the Chief of Police and Custodian of Records for the City of Louisiana, to the

following. The Louisiana Police Department policy was that no officer was authorized to carry a

firearm or a less lethal weapon unless he or she was certified with that weapon by a certified

instructor. After the initial Taser certification, it was recommended but not required to be

recertified every year. She agreed she could not produce a Taser certification for Office Hendel

“through her department” that was valid on October 23, 2016. The trial court denied the offer of

proof.

Batson Challenge

         During voir dire, the State asked the venire panel if there was anyone who did not trust

the police in general, further clarifying that the case involved an incident between two white



                                                  3
police officers and one black defendant. In response, Venireperson Number 26 volunteered that

she might not be able to trust the police, stemming from some issues her father, who is black,

had had with the police in Lincoln County in 2014, and her belief that race played a factor in

their interaction.

        The State used a peremptory strike against Venireperson Number 26, and Steele

challenged the strike under Batson v. Kentucky, asserting the strike was an improper attempt to

exclude Venireperson Number 26 on the basis of race. The trial court took judicial notice that in

her questionnaire, Venireperson Number 26 identified herself as black. After arguments, the trial

court overruled Steele’s Batson challenge, concluding the State had stated an appropriate, neutral

reason for its strike.

        Following the jury’s convictions on Counts II-VI, the trial court sentenced Steele as a

prior and persistent offender to concurrent terms of fifteen years’ imprisonment in the Missouri

Department of Corrections on Counts III and IV, consecutive to five years’ imprisonment on

Count II, and concurrent to one-year terms in the county jail on Counts V and VI each, for a total

sentence of 20 years’ imprisonment. This appeal follows.

                                             Discussion

                                               Point I

        In his first point on appeal, Steele argues the trial court abused its discretion in excluding

Officer Hendel’s and Chief Epperson’s testimony regarding Officer Hendel’s Taser certification

on October 23, 2016, because impeaching him on his Taser certification was logically and

legally relevant to the theory of defense, which was to attack the credibility of the officers’ story.

We disagree.




                                                  4
       A trial court has broad discretion to admit or exclude evidence at trial, and we review its

decision regarding the exclusion or admissibility of evidence for an abuse of that broad

discretion. State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc 2016). An abuse of discretion

occurs when the trial court’s ruling clearly offends the logic of the circumstances or is so

arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful

consideration. Id. Our review is for prejudice, not mere error, and we will reverse only if the

defendant demonstrates that the error was so prejudicial as to deprive him of a fair trial and there

was a reasonable probability the trial court’s ruling affected the outcome of the trial. Id.; see

also State v. Anderson, 76 S.W.3d 275, 277 (Mo. banc 2002).

       To be admissible, evidence must be both logically and legally relevant. Blurton, 484

S.W.3d at 777. “Evidence is logically relevant if it tends to make the existence of a material fact

more or less probable.” Id. (citation omitted). Likewise, evidence is legally relevant when the

probative value of the evidence outweighs its costs, such as unfair prejudice, confusion of the

issues, misleading the jury, undue delay, waste of time, or cumulativeness. Id.; Anderson, 76

S.W.3d at 276. Thus, even logically relevant evidence can be excluded if its costs outweigh its

benefits. Anderson, 76 S.W.3d at 276.

       Steele’s theory of defense was that he did not brandish a knife at the officers, contrary to

the statements of Officer Hendel and Officer Maskey that he did. Steele sought to admit

testimony from Officer Hendel and Chief Epperson that Officer Hendel was not certified to use

a Taser, in order to impeach Officer Hendel’s veracity and credibility. Specifically, Steele

argued that Officer Hendel’s lack of certification showed “his disregard for the regulations

governing peace officers’ use of less-than-lethal weapons and accordingly tends to erode his

veracity and credibility as a witness.”



                                                  5
        In general, the credibility of a witness is always a relevant issue, and witnesses may be

impeached on their character for truthfulness and veracity. Mitchell v. Kardesch, 313 S.W.3d

667, 676-77 (Mo. banc 2010). However, depending on the circumstances, the trial court may

still exercise its discretion to limit the admission of evidence when the prejudicial effect

outweighs the probative value of the evidence. See id. at 679; see also State v. Watts, 813

S.W.2d 940, 943 (Mo. App. E.D. 1991) (trial court may “limit or exclude the use of

impeachment evidence whose prejudicial effect far out-distances its value to the jury as an aid

for determining credibility”) (citation omitted).

        Here, the impeachment evidence of Officer Hendel’s Taser certification or recertification

was of negligible probative value and was outweighed by its likelihood to confuse or mislead the

jury. The evidence Steele sought to admit did not, in fact, serve to make Officer Hendel less

credible by demonstrating “his disregard for regulations.” Rather, in Steele’s offers of proof,

Officer Hendel submitted Taser certifications from his law enforcement academy, dated May 11,

2012, and from the Byrnes Mill Police Department, dated January 30, 2015; and Chief Epperson

testified that department policy did not require annual recertification. In sum, the evidence was

that Officer Hendel was certified to use his Taser and he was not required to recertify every year,

thus demonstrating he was in compliance with regulations. 3 For Steele to use this evidence to

argue that Officer Hendel was not in compliance with regulations in order to impeach his overall

veracity and credibility, was both disingenuous and potentially confusing to the jury. The trial

court did not abuse its discretion in excluding this evidence.




3
  To the extent Officer Hendel testified that he was required to be recertified every year, this assertion was not
supported by any reference to a regulation, and, rather, was contradicted both by Chief Epperson’s testimony and the
fact that he was issued a department Taser with only his January 2015 certification.

                                                         6
         Regardless, even if the trial court did abuse its discretion in excluding this impeachment

evidence, Steele was not prejudiced because there is not a reasonable probability the trial court’s

decision affected the outcome of the trial. Steele sought to impeach Officer Hendel’s credibility

to undermine his testimony that Steele brandished a knife. However, Officer Maskey also

testified that Steele displayed a knife in a threatening manner, causing Officer Maskey to fear for

his life and for Officer Hendel’s life. Steele did not likewise seek to impeach Officer Maskey’s

testimony on the basis of veracity and credibility. In light of the unchallenged, corroborating

evidence from Officer Maskey, Steele cannot meet his burden to show there was a reasonable

probability that the outcome of the trial would have been different had the trial court had

admitted the impeachment evidence of Officer Hendel. See Anderson, 76 S.W.3d at 277.

         Point denied.

                                                Point II

         In his second point on appeal, Steele argues the trial court clearly erred in overruling his

objection to the State’s peremptory strike of Venireperson Number 26 because the State did not

assert a facially race-neutral reason for its peremptory strike and the stated reason was a pretext

for discrimination. We disagree.

         This Court will set aside the trial court’s ruling with regard to a Batson challenge only if

it is clearly erroneous. State v. McFadden, 191 S.W.3d 648, 651 (Mo. banc 2006). A ruling is

clearly erroneous when the reviewing court is left with the definite impression that a mistake has

been made, considering the totality of the circumstances. Id. In the Batson context, because the

trial judge’s findings largely turn on an evaluation of credibility and demeanor, we give great

deference to the trial court’s findings. State v. Burnett, 492 S.W.3d 646, 653 (Mo. App. E.D.

2016).



                                                   7
       The State may not use a peremptory challenge to strike a venireperson solely on the basis

of race. See Batson v. Kentucky, 476 U.S. 79, 84 (1986). Missouri courts follow a three-step

process to analyze a Batson challenge. State v. Carter, 415 S.W.3d 685, 688-89 (Mo. banc

2013). First, a defendant must challenge one or more specific venirepersons struck by the State

and identify a cognizable racial group to which they belong. Second, the State must provide a

facially race-neutral reason that is more than a simple denial of discriminatory purpose. Third,

the defense must show that the State’s reason was a pretext for discrimination and that the true

reason for the strike was race. Id. One way the defense can show pretext is to present “side-by-

side comparisons” of venirepersons struck with those allowed to serve. If the stated reason for

striking an African-American venireperson applies to an otherwise-similar Caucasian

venireperson who was permitted to serve, that can establish discrimination. McFadden, 191

S.W.3d at 651. It is not required that the similarly situated Caucasian venireperson be identical

to the African-American venireperson, as that would leave Batson inoperable, but they must be

sufficiently similarly situated. See State v. Bateman, 318 S.W.3d 681, 689-90 (Mo. banc 2010);

State v. Clark, 407 S.W.3d 104, 107 (Mo. App. E D. 2013).

       Here, during voir dire, the State asked the venire panel if there was anyone who did not

trust the police in general, further clarifying that the case involved an incident between two white

police officers and one black defendant. In response, Venireperson Number 26 volunteered that

she might not be able to trust the police, stemming from some issues her father, who is black,

had had with the police in Lincoln County in 2014, and her belief that race played a factor in

their interaction. However, in response to questions from counsel for Steele, Venireperson

Number 26 stated she had reflected on her earlier comment and clarified it was “more of an

individual thing. It is not even so much … race, but I did want that to be known that even



                                                 8
whether it is white or it is black, I have seen unjust on both parts.” Counsel for Steele then asked

if she would be able to listen to the evidence presented and be fair and partial to both sides, and

she responded: “yes.”

       The State used a peremptory strike against Venireperson Number 26, and Steele

challenged the strike under Batson v. Kentucky, asserting the strike was an improper attempt to

exclude Venireperson Number 26, who was African-American, on the basis of race. The State

articulated it had struck Venireperson Number 26 “because of her stated answer wherein she

indicated that her father had had some negative interactions with law enforcement … [and] she

felt he was treated unfairly.”

       Steele responded the State’s articulated reason was a pretext for discrimination, in that

there were other similarly situated venirepersons who had recounted experiences with law

enforcement but were not struck. The trial court overruled Steele’s Batson challenge, concluding

the State stated an appropriate, neutral reason for its strike. The trial court noted Venireperson

Number 26 “was pretty clear in the beginning that she had a problem with law enforcement and

with their treatment of her father, who was black.” The court further concluded that because the

other venirepersons had not stated they had a family member who was treated unfairly by law

enforcement, they were not similarly situated to Venireperson Number 26. Although Steele

argued it was impossible for the other Caucasian venirepersons to similarly assert unfair

treatment on the basis of race, the trial court clarified the key issue was that no other

venirepersons had stated law enforcement had treated someone in their family unfairly.

       Steele argues on appeal that the State did not assert a facially race-neutral reason for its

peremptory strike of Venireperson Number 26. The State’s articulated reason for its strike was

that her father had had some negative interactions with law enforcement and she believed he had



                                                  9
been treated unfairly. Steele argued, however, that because Venireperson Number 26 believed

her father’s race played a factor in the unfair treatment, race was inextricably intertwined with

the State’s peremptory strike. Steele’s argument is unavailing.

       While the State cannot strike a venireperson because of his or her race, Batson does not

require that the State’s articulated reason for its strike be “unrelated to race.” See State v.

Rollins, 321 S.W.3d 353, 366 (Mo. App. W.D. 2010) (quoting Hernandez v. New York, 500 U.S.

352, 375 (1991) (O’Conner, J., concurring)). In Rollins, the Western District found that the

State’s explanation for striking an African-American venireperson who had been the victim of

racial discrimination by the police was race-neutral on its face, because the reason for the strike

was that he had had an experience that negatively influenced the way he perceived police

officers. Rollins, 321 S.W.3d at 367. Venirepersons of any race or ethnicity may be struck on

the ground that they have experienced discrimination from a police officer. Id. Even if race has

been mentioned by the venireperson, we look to the State’s explanation for whether it objectively

or facially relied on race in its strike. See State v. Mosley, 534 S.W.3d 879, 885 (Mo. App. W.D.

2017). Here, similar to Rollins, the State explained it struck Venireperson Number 26 because of

her negative experience with law enforcement, in that she believed they had treated her father

unfairly, which is a facially race-neutral reason for the peremptory strike.

       As for Steele’s argument that the State’s reason for striking Venireperson Number 26 was

not facially race-neutral because she rehabilitated herself by clarifying that regardless of race she

had seen people on both sides be unjust, and by saying she could be fair and impartial,

rehabilitation does not prove a Batson claim in the context of peremptory strikes. While a

venireperson’s statement that he or she can set aside a prior experience and be fair and impartial

is important in the context of a challenge for cause, the justification for a peremptory strike can



                                                  10
be any non-discriminatory reason regardless of rehabilitation. See Rollins, 321 S.W.3d at 367-68

(“A venireperson’s statement that he or she can set aside a prior experience and be “fair and

impartial” does not resolve the issues in a Batson context where the party seeking to strike the

venireperson might have reason to think otherwise”); see also State v. Kempker, 824 S.W.2d

909, 911 (Mo. banc 1992) (when making peremptory challenges, “[p]rosecutors may still use

horse sense and play hunches, so long as the factors they rely on are racially neutral”).

        Steele next argues the State’s explanation was a pretext for discrimination because there

were similarly situated jurors who testified to prior personal experience with law enforcement

but were not struck. Specifically, Steele pointed to Venireperson Number 28, 4 who stated she

had a cousin who was a retired bailiff and a close friend whose husband was a sheriff, but who

also stated: “I had a boyfriend once who went to trial for DWI, and I saw the police try to lie, and

then they tried to lie, so both sides were full of bologna.” When asked if she could be fair and

impartial, she responded by referencing her cousin the retired bailiff, but she ultimately agreed

she would not be more favorable to one side or the other. Venireperson Number 28 served on

the jury.

        While the defense need not produce an “exactly identical” Caucasian juror to show

pretext, the compared juror must be sufficiently similarly situated. Clark, 407 S.W.3d at 107.

Here, Venireperson Number 26 stated she might not be able to trust the police because law

enforcement had treated her father unfairly. Venireperson Number 28 did not similarly state she

might not be able to trust the police. Comparing the statements of Venirepersons Number 26 and




4
  While Steele also argues on appeal that Venireperson Number 9 was similarly situated because she “had prior
personal experience with law enforcement,” our review of the record does not show that Venireperson Number 9
testified to experience with law enforcement. Rather, she stated only that when she worked in a store she had been
robbed by someone who said he had a gun, but she clarified she was not so emotionally affected by the experience
that she could not consider the evidence. She did not reference her experience with law enforcement.

                                                        11
28, they were not similarly situated, in that Number 26 explicitly stated she might not be able to

trust police based on her father’s negative experience, and Number 28 did not. The burden is on

the defense to show pretext, and Steele failed to meet his burden on the facts here to show the

State’s peremptory strike of Venireperson Number 26 was racially motivated. See Carter, 415

S.W.3d at 688-89. Thus, the trial court did not clearly err in denying Steele’s Batson challenge.

       Point denied.

                                            Conclusion

       The judgment of the trial court is affirmed.




                                                             ______________________________
                                                             Robin Ransom, J.

Sherri B. Sullivan, P.J., and
James M. Dowd, J., concur.




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