STATE OF MISSOURI,                                  )
                                                    )
        Plaintiff-Respondent,                       )
                                                    )
v.                                                  )        No. SD33318
                                                    )
MAURICE D. JONES,                                   )        Filed: May 13, 2015
                                                    )
        Defendant-Appellant.                        )

               APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                              Honorable Calvin R. Holden, Circuit Judge

AFFIRMED

        Maurice D. Jones ("Defendant") appeals his convictions, following a jury trial, for

first-degree assault and armed criminal action perpetrated against a male victim. See sections

565.050 and 571.015.1 Defendant claims he should receive a new trial because the trial court

clearly erred in overruling his gender-based Batson2 challenges to two peremptory strikes

used by the State to eliminate female panel members. Deferring to the trial court's superior

position to detect bias, we find no clear error and affirm.

                              Standard of Review and Governing Law

        A party may not exercise a peremptory strike to remove a potential juror solely on the

basis of gender. State v. Marlowe, 89 S.W.3d 464, 468 (Mo. banc 2002). "[T]he substance

1
  Statutory references are to RSMo 2000 unless otherwise specified. Rule references are to Missouri Court Rules
(2014).
2
  Batson v. Kentucky, 476 U.S. 79 (1986).


                                                        1
and procedures established by the Batson line of cases are equally applicable to challenges

made to peremptory strikes based on gender bias." State v. Hayden, 878 S.W.2d 883, 885

(Mo. App. E.D. 1994). We review the denial of a Batson challenge for clear error.3 State v.

Thurman, 887 S.W.2d 411, 412 (Mo. App. W.D. 1994). A finding is clearly erroneous if we

are definitely and firmly convinced that a mistake has been made. Id. We accord the trial

court great deference on its findings of fact as they largely depend upon first-hand evaluations

of credibility and demeanor. State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc 2010).

         A Batson challenge must proceed as follows:

         First, the defendant must raise a Batson challenge with regard to one or more
         specific venirepersons struck by the state and identify the cognizable . . .
         group to which the venireperson or persons belong. The trial court will then
         require the state to come forward with reasonably specific and clear [gender]-
         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 [gender] motivated.

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

omitted).

         A legitimate basis to exercise a peremptory strike may include the prosecutor's class-

neutral observations, past experiences, and common sense. See State v. Weaver, 912 S.W.2d

499, 509-10 (Mo. banc 1995). Additionally, counsel may make "a subjective determination



3
  Respondent unpersuasively argues that Defendant is entitled only to plain error review under Rule 30.20
because he did not sufficiently challenge the prosecutor's proffered reasons for striking the venirepersons at the
time he made his Batson challenge, citing State v. Washington, 288 S.W.3d 312, 314 (Mo. App. E.D. 2009), and
State v. Clark, 280 S.W.3d 625, 628 (Mo. App. W.D. 2008). In the cited cases, the reviewing courts resorted to
plain error review because the defendant either made no attempt to challenge the prosecutor's proffered reasons,
Washington, 288 S.W.3d at 314, or added new claims of error on appeal. Clark, 280 S.W.3d at 628. Here,
Defendant's response to the prosecutor's stated reasons was sufficient to preserve those particular arguments for
our review. To the extent that Defendant now attempts to expand those prior arguments, he does not do so with
an accompanying request for plain error review, and we decline such review. See State v. Irby, 254 S.W.3d 181,
188 (Mo. App. E.D. 2008) ("objection cannot be broadened by arguing a new theory on appeal"), and State v.
Morgan, 366 S.W.3d 565, 586 (Mo. App. E.D. 2012) (no request for plain error review and exercise of such
discretionary review declined).


                                                        2
based upon a wide variety of character and personality traits, including 'hunches.'" State v.

Martin, 291 S.W.3d 269, 277 (Mo. App. S.D. 2009). "A legitimate reason is not one that

makes sense but one that does not deny equal protection." Weaver, 912 S.W.2d at 509.

       In challenging the proffered reasons as pretextual, the defendant must present

evidence or a specific analysis that discredits the State's explanation; he cannot rely on mere

conclusory allegations. State v. Johnson, 930 S.W.2d 456, 460 (Mo. App. W.D. 1996).

"There is rarely a simple litmus test for examining pretext. Rather, the trial court should take

'into account a variety of factors' '[i]n determining whether the defendant has carried the

burden of proof and established the existence of purposeful discrimination.'" Bateman, 318

S.W.3d at 690 (quoting Parker, 836 S.W.2d at 939).

               Prior cases have identified a non-exclusive list of factors that may be
       relevant in any particular case. For example, a court also should look at "[t]he
       degree of logical relevance between the proffered explanation and the case to
       be tried in terms of the kind of crime charged, the nature of the evidence to be
       adduced, and the potential punishment if the defendant is convicted...."
       Parker, 836 S.W.2d at 940. The prosecutor's "patterns of practice," e.g.,
       questions and explanations and history of pretextual strikes, may be relevant,
       Miller–El [v. Dretke], 545 U.S. [231,] 233–34, 253 [(2005)]; Parker, 836
       S.W.2d at 940, as may both the prosecutor's "demeanor" while engaging with
       venirepersons, [State v.] Antwine, 743 S.W.2d [51,] 65 [(Mo. banc 1987)], and
       the demeanor of excluded venirepersons. Parker, 836 S.W.2d at 940.
       "Objective factors bearing on the state's motive to discriminate on the basis of
       [gender], such as the conditions prevailing in the community and the [gender]
       of the defendant, the victim, and the material witnesses, are also worthy of
       consideration." Id.

Id. at 690-91 (footnote omitted).

                             Facts and Procedural Background

       Defendant, who was accused of shooting Arjuna Green in the arm, does not challenge

the sufficiency of the evidence supporting his convictions. As a result, we recite only those




                                                3
facts relevant to the resolution of Defendant's points, and we present them in the light most

favorable to the State. See Martin, 291 S.W.3d at 273.

        Forty-five persons were empaneled as potential jurors. At the conclusion of voir dire,

the State used all six of its peremptory strikes on female venirepersons, and defense counsel4

made a gender-based Batson challenge.5 The prosecutor's initial response was that he "didn't

even put it together that the six people . . . were women[,]" and he asserted that gender "had

nothing to do with it."

        In regard to the two strikes challenged in Defendant's points relied on, the colloquy

related to Venireperson No. 1 ("No. 1") was as follows:

                 [Prosecutor]:              Your Honor, in asking the questions, just our
                                            observations of her and how she paid attention in court
                                            and reasons like that, just our general observations, we
                                            decided to strike her without thinking about her gender
                                            in any way, shape, or form, because –
                 THE COURT:                 From the defense side on No. 1?
                 [Defense counsel]:         I'm not sure, Judge, what they mean by just her
                                            demeanor in court.
                                                    Is there something specific? Did she frown at
                                            them? Did she roll her eyes? I mean, you could say that
                                            of everybody. I mean, everybody has a demeanor in
                                            court.
                                                    What specific reason was her demeanor used by
                                            the State to -- to use a peremptory strike on her?
                                                    Again, every juror has a demeanor. I – we just
                                            think that they should be required to tell us why they
                                            have stricken her with a peremptory strike with some
                                            specificity.
                 THE COURT:                 I think they did, as specific as they can be.

        The following constituted the colloquy related to Venireperson No. 17 ("No.

17"):



4
  Both the State and Defendant were represented by multiple attorneys. We refer to them generally as
"prosecutor" and "defense counsel."
5
  The prosecutor calculated that seven of the remaining panel members were female.


                                                      4
                    [Prosecutor]:               And [No.]17, chose to strike, retired military. She didn't
                                                answer any questions,[6] and it was her age and being
                                                younger. Those were all factors we looked at with her.
                                                        ....
                    THE COURT:                  Okay. From the defense side?
                    [Defense counsel]:          I believe they said because of her age? Does that mean
                                                that they struck her because -- was she older or younger?
                    [Prosecutor]:               Younger.
                    [Defense counsel]:          What about her age?
                    THE COURT:                  Younger.
                    [Defense counsel]:          Judge, there are several jurors that were younger that
                                                were not stricken, so I don't think that's a gender-neutral
                                                reason.

           After addressing each of the peremptory strikes, the prosecutor again stated that using

all six on females was purely coincidental, and he said the State was willing to change a strike

if asked to do so by the trial court. The trial court initially concluded that the State did not

present a gender-neutral reason for striking Venireperson No. 14. The State withdrew that

strike and struck a male venireperson instead. The trial court found that "there was a gender-

neutral reason" for striking both Nos. 1 and 17. Following Defendant's peremptory strikes,

the trial court identified the members of the jury by their numbers and also noted that it had

"dealt with all the attorneys in this courtroom for a long time" and had "never seen anything

discriminatory for [sic] any of the attorneys. It just turned out that [the State] struck six

women." 7 Defense counsel stated that he had no objection to the manner in which the Batson

hearing had been conducted.


6
    No. 17 did answer some questions during voir dire about prior juror service.
7
    The trial court also stated:

                     Going back to the Batson challenge, I'll note that the defense did strike four women
           in their strikes. I do want to make a clear record that I was not finding that I thought that the
           State has done anything as far as a discrimination against women in picking the jury. Out of
           an abundance of caution, I asked them to not -- that I wasn't going to allow them to strike No.
           14. They then selected another juror for their strike.

It is impossible to determine from the record the exact number of females who sat as jurors in this case.
It appears that at least three of the jurors may have been female based upon three traditionally female


                                                           5
                                                   Analysis

         In his first point, Defendant alleges the trial court erred in overruling his Batson

objection concerning No. 1 because the State failed to articulate a reasonably specific gender-

neutral reason for the strike. In his second point, Defendant argues that the trial court erred in

overruling his Batson objection concerning No. 17 because the prosecutor's stated

justifications were implausible. Both of Defendant's points fail for the same reason, and we

address them together.

         The second step of a Batson challenge "does not demand an explanation that is

persuasive, or even plausible. 'At this . . . step of the inquiry, the issue is the facial validity of

the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's

explanation, the reason offered will be deemed [gender] neutral.'" Purkett v. Elem, 514 U.S.

765, 767-68 (1995) (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)). The

Batson case's admonition that "the proponent of a strike 'must give a clear and reasonably

specific explanation . . . related to the particular case to be tried' . . . . was meant to refute the

notion that a prosecutor could satisfy his burden of production by merely denying that he had

a discriminatory motive or by merely affirming his good faith." Id. at 768-69 (quoting

Batson, 476 U.S. at 98 and n.20 (additional quotation omitted)).

         The prosecutor's statement that he struck No. 1 because of his general

observations of her demeanor and how she paid attention is facially valid. State v.

Miller, 162 S.W.3d 7, 16 (Mo. App. E.D. 2005) ("[i]nattentiveness, demeanor and


names given during the polling of the jury after the verdict and from comments made by the trial court
and the prosecutor about the number of women left on the panel before Defendant made his peremptory
strikes. Defense counsel did not contest the number of females left on the panel as stated by the
prosecutor. In any event, the presence of women on the jury does not control the analysis, as striking a
potential juror based solely upon his or her gender is impermissible. Cf. Parker, 836 S.W.2d at 940
("[t]he removal of even one African-American person from the venire for racial reasons constitutes a
violation of the equal protection clause regardless of the racial composition of the selected jury").


                                                       6
attitude are proper explanations for exercising a peremptory challenge"). The same is

true for the reasons of employment, attitude, and relative age as stated by the

prosecutor in addressing No. 17. State v. Winters, 949 S.W.2d 264, 268-69 (Mo. App.

S.D. 1997) (concerning age and prior employment in military); Miller, 162 S.W.3d at

16 (concerning attitude). Although a lack of detail or plausibility in a prosecutor's

facially valid explanation might later serve to undermine the persuasiveness of a

prosecutor's proffered rationale, persuasiveness is not yet at issue in this second step of

a Batson challenge. Purkett, 514 U.S. at 768-69.

       The third step of a Batson challenge places the burden upon the defendant to

present affirmative evidence that the prosecutor's facially valid reasons were actually

pretextual. State v. Davis, 894 S.W.2d 703, 707 (Mo. App. W.D. 1995). And the trial

court was not obligated to find that Defendant had "established the existence of

purposeful discrimination" as to either venireperson here, especially since Defendant

presented no evidence challenging or specific analysis discrediting the prosecutor's

statements concerning No. 1's "attention in court" or No. 17's status as "retired

military." See Bateman, 318 S.W.3d at 690, and Johnson, 930 S.W.2d at 460.

       Further, the trial court's statements that it had never before "seen anything

discriminatory for any of the attorneys" and that it "just turned out that they struck six

women" indicate it found "[t]he prosecutor's patterns of practice" relevant and

contrary to a finding of purposeful discrimination. See Bateman, 318 S.W.3d at 691

(quotation omitted). When we defer -- as we must -- to these factual findings of the

trial court, we are not definitely and firmly convinced that the trial court made a

mistake in rejecting Defendant's Batson challenge.




                                                7
     Defendant's points are denied, and his convictions are affirmed.


DON E. BURRELL, J. - OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. - CONCURS

GARY W. LYNCH, J. - CONCURS




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