                     In the Missouri Court of Appeals
                             Eastern District
                                        DIVISION THREE

STATE OF MISSOURI,                            ) No. ED106127
                                              )
       Plaintiff/Respondent,                  ) Appeal from the Circuit Court
                                              ) of St. Charles County
vs.                                           )
                                              )
ANTONIO DAMON COURTNEY,                       )
                                              ) Honorable Deborah J. Alessi
                                              )
       Defendant/Appellant.                   ) Filed: July 23, 2019


                                            Introduction

       Antonio Damon Courtney (Appellant) appeals the trial court’s judgment following a jury

trial convicting him of class B felony assault in the first degree, unclassified felony armed

criminal action, class D felony unlawful use of a weapon, class C felony unlawful possession of

a firearm, and class B felony burglary in the first degree, for which he was sentenced as a prior

and persistent offender to a total of 25 years’ imprisonment. We affirm.

                                       Factual Background

       On December 10, 2015, Kenneth Strong (Strong), a small business owner, was returning

home from the barber shop with his two-year-old son. Strong brought his son into the garage

and returned to his car to retrieve a package. When he returned to the garage, he encountered a

man wearing a mask over half his face and holding a gun. Strong lunged for the gun, and a

struggle ensued. The man struck Strong in the head with the gun several times, causing
lacerations that would require staples. During the struggle, the gun fired; a bullet was later found

lodged in Strong’s house. The man then fled through Strong’s and neighbors’ backyards.

           Strong and several neighbors each called 911, and law enforcement responded. A crime

scene investigator processed the scene, collecting 20 blood samples from the area. Near the

blood, investigators found a Bluetooth device, which they sent to a lab for blood swabs and DNA

testing. The blood samples in the area belonged to Strong. The DNA found on the Bluetooth

device belonged to Appellant.

           A short time later, law enforcement received a tip Appellant was at his girlfriend’s home

in St. Louis County. Officers responded to the location, and several officers approached the

front door to demand entry, while others surrounded the home to cover other exits. As the

officers knocked loudly on the door, they heard a male voice within tell someone not to open the

door. Eventually, Appellant’s girlfriend answered the door. As she answered, Appellant slipped

out from a second story window, jumped to the ground, and fled.

           Officers pursued Appellant for several blocks before they caught up to him when he

attempted to hide under a bush. Two detectives tried to pull Appellant out, and he began to

struggle, thrash, and kick. Officers subdued Appellant as he fought, administering some knee

strikes, one or more of them hitting Appellant’s face. Detectives searched the bushes where

Appellant was found, locating a cellphone. Appellant was handcuffed and returned to his

girlfriend’s home to be questioned.

           Upon arriving back at his girlfriend’s home, Appellant was read his Miranda rights.1

Appellant stated he understood his rights. A detective asked Appellant whether he had discarded

any firearms as he fled. Appellant replied the officers would find what they were looking for



1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                                   2
where they had arrested him. When asked why he would throw his phone away, Appellant

replied, “Because they can get me in trouble,” and, “I’m done, I’m f—ked, I’ll die in prison,

bro.”

        Law enforcement obtained a warrant and searched Appellant’s cellphone. They found a

video depicting two men surveilling Strong’s home from a car while discussing plans to rob

Strong. When showed this video, Strong recognized one of the voices as belonging to James

Scott, an acquaintance of his. Strong knew James Scott because Strong had sold him a car, and

later repossessed it due to nonpayment on the loan. Also visible in the video was a decal of a

rose on the window of the car, which was the same decal as one on Appellant’s girlfriend’s car.

James Scott later confessed to police he had been in the car with Appellant surveilling Strong’s

home, but Appellant was the individual who attacked Strong.

        Appellant was tried before a jury and convicted of first degree assault, armed criminal

action, unlawful use of a weapon, unlawful possession of a firearm, and first degree burglary.

Additional facts will be adduced as necessary.

                                         Points Relied On

        Appellant makes three points on appeal. Point I claims the trial court plainly erred by

allowing into evidence statements Appellant made to police officers shortly after his arrest.

Point II claims the trial court plainly erred by overruling Appellant’s Batson challenge made

after the State used a peremptory challenge to strike an African-American juror. Point III claims

the trial court abused its discretion by overruling Appellant’s objection to the State questioning

jurors about small business owners making cash deposits, which inaccurately characterized the

facts of the case.




                                                 3
                                                 Point I

           Before trial, Appellant filed a motion to suppress statements he made to police after being

arrested, claiming his waiver of his Miranda rights was involuntary due to the physical force

used by police to apprehend him. No ruling on this motion appears in the record. At trial, the

State introduced as evidence Appellant’s statements to police. Appellant made no objection

when these statements were introduced at trial.

           Motions to suppress evidence are interlocutory, and a contemporaneous objection at trial

is required in order to preserve the issue for appellate review. State v. Lassen, 679 S.W.2d 363,

368 (Mo. App. S.D. 1984). Appellant acknowledges he failed to preserve this issue for review,

and asks instead for plain error review. Rule 30.20.2

           Plain error review is a two-step process. First, we consider whether Appellant’s point of

error facially establishes substantial grounds for believing a manifest injustice or a miscarriage of

justice has occurred. State v. McKay, 459 S.W.3d 450, 455 (Mo. App. E.D. 2014) (citation

omitted). If it does, we proceed to the second step and determine whether a miscarriage of

justice or manifest injustice will result from the error remaining uncorrected. Id. “All

prejudicial error... is not plain error[;] plain errors are those which are evident, obvious and

clear.” State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009) (citation and internal quotation

marks omitted).

           Appellant makes two arguments why we must reverse the judgment of the trial court on

this point. First, he argues the trial court plainly erred by not sua sponte excluding Appellant’s

statements because those statements were not made voluntarily. Appellant argues this is so




2
    Mo. R. Crim. P. 2017.

                                                    4
because the police used physical force in apprehending him, and thus any waiver of his Miranda

rights is rendered involuntary and void. Appellant provides no citation for this argument.

       “The test for voluntariness is whether, under the totality of the circumstances, the

defendant was deprived of free choice to admit, to deny, or to refuse to answer and whether

physical or psychological coercion was of such a degree that the defendant’s will was overborne

at the time he confessed.” State v. Greathouse, 559 S.W.3d 108, 111 (Mo. App. S.D. 2018),

quoting State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). We are aware of no per se rule

requiring all of a suspect’s post-arrest statements be excluded when police employ force to arrest

him. There is no indication in the record before us to show officers used any more force than

was reasonable to apprehend Appellant, who was fleeing and struggling with police, and was

wanted on suspicion of committing violent armed robbery. Additionally, Appellant was

questioned at his girlfriend’s home, blocks from where he was arrested, by a different detective

than those involved in his pursuit and apprehension. On review, we are unable to conclude the

trial court plainly erred by not sua sponte excluding Appellant’s statements to police.

       Appellant also argues we must remand his case to the trial court to determine whether his

statements were made voluntarily because, although he filed a motion to suppress those

statements, no ruling on that motion appears in the record. In support of his argument this

entitles him to remand, Appellant cites State v. Edwards, 30 S.W.3d 226 (Mo. App. E.D. 2000).

However, Edwards is easily distinguishable from the instant case, and unhelpful to Appellant.

       Edwards involved a criminal defendant who challenged the admissibility of his prior

statements via oral motion on the morning of trial. Id. at 229. The trial court refused to hear the

motion before the beginning of trial, to which the defendant objected. Id. When the State

introduced the defendant’s statements, the defendant again objected. Id. At the close of



                                                 5
evidence, the trial court announced it had considered the defendant’s motion, and was overruling

it in its entirety. Id.

        On appeal, the defendant claimed the trial court had not afforded him due process in

overruling his motion. Id. Specifically, the defendant complained he had not been able to

present his own testimony outside of the hearing of the jury as to the circumstances under which

he made his prior statements, due to the fact the defendant had not taken the stand. Id. This

Court agreed, holding that once the trial court had accepted the defendant’s motion to suppress it

was obligated to hear the motion outside the presence of the jury to determine whether the

complained-of statements were made voluntarily. Id. at 230. Because the trial court failed to do

so, the case was remanded for a post-trial hearing on the issue of whether the defendant’s

statements were voluntary. Id. at 231.

        The circumstances are very different in the instant case. Here, Appellant sought to

suppress his statements via pretrial motion. Moreover, from the record it appears that, unlike

Edwards, there was a hearing on Appellant’s motion outside of the hearing of the jury. Although

no ruling on this motion appears in the record, this does not entitle Appellant to remand for a

rehearing. From the current standpoint, it is immaterial whether the trial court granted or denied

Appellant’s pretrial motion, because Appellant did not object to the statement’s introduction at

trial. As it was explained by the court in State v. Lassen:

        The rule requiring a contemporaneous objection is not a mere technical rule of
        procedure. The reason for this rule, which has been variously stated, is that the
        real damage is not done until the evidence is introduced and the court’s ruling on
        a motion to suppress is interlocutory. By the time the evidence is offered, the
        testimony received may have made the evidence admissible, and in any event, the
        trial court should be given an opportunity to reconsider its ruling.

679 S.W.2d at 368 (citations omitted).




                                                 6
           As stated above, it is immaterial whether the trial court granted or denied Appellant’s

motion to suppress because that ruling was interlocutory and subject to change once the

statements were offered at trial. And, unlike the defendant in Edwards, Appellant failed to object

to the complained-of statements when they were offered, leaving the issue unpreserved for

review.

           Appellant fails to facially establish a manifest injustice or miscarriage of justice has

occurred. Accordingly, Point I is denied.

                                                      Point II

           Appellant’s second claim is the trial court plainly erred by overruling Appellant’s Batson3

challenge to the State peremptorily striking Juror 11, the only African-American juror on the

panel.

           During voir dire, the State asked the panel if anyone felt police often used excessive

force. Juror 11 was among those who raised their hands. Later, the State asked whether anyone

on the panel had relatives in prison. Juror 11 indicated he did, stating his son had been

prosecuted for robbery and had been treated unfairly by law enforcement. After voir dire, the

State used a peremptory strike on Juror 11. Appellant objected, accusing the State of striking

Juror 11 on the basis of his race. The State argued the strike was not on the basis of race, citing

Juror 11’s responses as the reason for its strike. After some discussion, the trial court overruled

Appellant’s objection. Appellant did not include this objection in his motion for a new trial, thus

leaving the issue unpreserved. Appellant acknowledges this in his brief and asks we review this

claim for plain error.




3
    Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

                                                          7
         Appellant argues the trial court plainly erred by overruling his objection because after he

accused the State of striking Juror 11 on the basis of his race, the State was unable to rebut the

accusation by identifying other jurors it had struck for the same reasons it struck Juror 11.

Appellant’s argument is based on a misstatement of the law.

         “Under the Equal Protection Clause, a party may not exercise a peremptory challenge to

remove a potential juror solely on the basis of the juror’s gender, ethnic origin, or race.” State v.

Marlowe, 89 S.W.3d 464, 468 (Mo. banc 2002), citing U.S. v. Martinez-Salazar, 528 U.S. 304,

315 (2000). If one party believes the other is striking a juror on the basis of race, they may

challenge the strike in a three-step procedure: first, a party challenges the strike as being done on

the basis of race; second, the other party must supply a race-neutral reason for the strike; third,

the challenging party must prove the given race-neutral reasons are pretextual, and the true

motivation is the juror’s race. Id.

         Here, Appellant challenged the State’s striking Juror 11 as being on the basis of his race.

In response, the State supplied an adequate, race-neutral reason for its strike: Juror 11 had

indicated both his belief police often use excessive force and that law enforcement had treated

his son unfairly when he was prosecuted for robbery. These reasons are race-neutral, related to

the case, clear, specific, and legitimate. See State v. McFadden, 216 S.W.3d 673, 676 (Mo. banc

2007).

         At this point, the burden is shifted to Appellant to prove these reasons are pretextual.

Marlowe, 89 S.W.3d at 468. One way he may prove this is by successfully arguing the

explanation itself is deficient, in that it fails to articulate a plausible, legitimate, case-related

reason to strike the juror. McFadden, 216 S.W.3d at 676. But as stated above, the State’s given

reasons were legitimate, plausible, and related to the instant case. Juror 11 said he believed



                                                    8
police often used excessive force; Appellant believes excessive force was used to apprehend him.

Juror 11 also said law enforcement had treated his son unfairly when he was prosecuted for

robbery; Appellant was being tried for committing a similar crime. The reasons given by the

State for striking Juror 11 articulated an adequate, race-neutral reason for doing so.

        Appellant does not take issue with the substance of the State’s given reasons for the

strike, however. Rather, Appellant argues the reasons must be disingenuous because the State

failed to point to other jurors it struck on the same basis. It is true an important factor the trial

court must consider is whether other non-African-American jurors similarly situated to the struck

juror were also struck. State v. Thomas, 407 S.W.3d 190, 196 (Mo. App. E.D. 2013). However,

Appellant’s argument incorrectly places the burden of pointing to similarly situated jurors on the

State. It is Appellant’s burden to prove the State’s proffered reasons are pretextual. Marlowe,

89 S.W.3d at 468. One way it may do so is identifying similarly-situated white jurors who were

not struck. Id. Once the State proffers race-neutral reasons for its strike, it has no burden to

identify other similarly situated jurors it also struck, especially when, as the State points out in its

brief, there were no other jurors who indicated they believed police often used excessive force

and had a family member who was treated unfairly by law enforcement when prosecuted for a

similar crime. If the State were required to prove its race-neutral reasons by showing it struck

other panel members for those same reasons, the State would never be able to strike a juror

whose answers were unique from those of the rest of the panel.

        The State’s reasons for striking Juror 11 were legitimate and race-neutral. Appellant was

unable to prove otherwise. The trial court did not err, plainly or otherwise, by overruling

Appellant’s objection. Point II is denied.




                                                   9
                                               Point III

        Appellant’s final claim relates to questions asked by the State during voir dire. The State

asked the panel whether anyone owned a small business, and whether any business owners

feared being robbed when making cash deposits for their businesses. After the State asked

several small business owners the same question, counsel for Appellant asked to approach the

bench. Counsel for Appellant objected to the line of questioning because there was no evidence

Strong was coming from his business to make a cash deposit when Appellant robbed him, and so

the questions were misleading. At this, the State said it was finished with those questions and

intended to move on from the subject. Appellant requested no relief from the trial court. Later

during voir dire, Appellant again brought up this line of questioning to the trial court, stating on

the record that he did not want a mistrial, but wanted to make his objection continuing.

Appellant stated he hoped he could cure whatever prejudice may have resulted in his own voir

dire. Appellant’s objection to the State’s line of questioning was included in Appellant’s motion

for a new trial.

        In his brief, Appellant insists his objection to the trial court was sufficient to preserve the

issue for appellate review. We disagree. “Appellate courts are merely courts of review for trial

errors, and there can be no review of a matter which has not been presented to or expressly

decided by the trial court.” In re Adoption of C.M.B.R., 332 S.W.3d 793, 814 (Mo. banc 2011)

(internal quotations omitted), abrogated in part on unrelated grounds by S.S.S. v. C.V.S., 529

S.W.3d 811 (Mo. banc 2017). In order to preserve an issue for appellate review, a

contemporaneous objection is required at the time the issue presents itself at trial. Baumruk, 280

S.W.3d at 615.




                                                  10
        It is true Appellant objected at trial to the State’s line of questioning. However,

Appellant’s objection was sustained, and Appellant received all the relief he requested: the State

was no longer permitted to ask the offending line of questions, and the trial court granted

Appellant leeway to purge any prejudice that might have occurred with his own voir dire. Not

only did Appellant not request a mistrial, he affirmatively stated he did not want one. “A party

cannot fail to request relief, gamble on the verdict, and then, if adverse, request relief for the first

time on appeal.” State v. Bennett, 201 S.W.3d 86, 88 (Mo. App. W.D. 2006), citing State v.

McGee, 848 S.W.2d 512, 514 (Mo. App. E.D. 1993). We will not convict the trial court of error

for failing to grant a mistrial when Appellant announced he did not want one. Thus, we review

only for plain error.

        “To be entitled to relief under the plain error rule, a defendant must go beyond a mere

showing of demonstrable prejudice to show a manifest injustice affecting substantial rights.” Id.,

citing State v. Parker, 856 S.W.2d 331, 332 (Mo. banc 1993). “Even if the argument is

improper, a conviction will be reversed only if it is established that it had a decisive effect on the

jury’s determination.” Id.

        On consideration of the entire record, we cannot say the State’s questions had a decisive

effect on the outcome of the trial. It is not clear how the State’s line of questions was so

substantially misleading it may have caused such prejudice the jury was unable to make a

determination based on the evidence, given that Strong is a small business owner, and James

Scott, Appellant’s accomplice, told police he made the down payment for the car he purchased

from Strong in cash. However, chiefly we consider the abundant evidence of Appellant’s guilt,

which we regard as likely to have affected the jury’s determination a great deal more than the

State’s questions about small business cash deposits.



                                                  11
       Point III is denied.

                                           Conclusion

       The judgment of the trial court is affirmed.




                                                        SHERRI B. SULLIVAN, P.J.

James M. Dowd, J., and
Robin Ransom, J., concur.




                                                12
