State v. Bruce , 1987 Mo. App. LEXIS 5019 ( 1987 )

MANFORD, Judge,

dissenting.

I must respectfully dissent.

There is no disagreement with the disposition by the majority opinion relative to appellant’s claim of error in the admission of his out-of-court statement. Proper disposition of that alleged error is made under State v. Brown, 654 S.W.2d 290, 291 (Mo.App.1983).

Exception is taken, however, to the disposition of appellant’s second point, that being his challenge to the striking of black venire persons by the prosecution.

This dissent is based upon the same rationale expressed by this writer in his dissent in State v. Smith, 737 S.W.2d 731, 735 (Mo.App.1987), and the views set forth in Smith, supra are incorporated herein. What Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Smith, supra; and the present case continue to illustrate is the hypocrisy in the law today. This hypocrisy arises from the hue and cry and repeated assertion that the law is color blind or race neutral; but then on the other hand, Batson and other rulings provide a constitutional safeguard limited by the race of the accused. As stated in Smith, 737 S.W.2d at 742, the only thing separating the various defendants and a right versus the denial of a right to challenge particular venire persons, is the color of their skin. So, as long as Batson, Smith, and other cases follow such reasoning, discrimination will never be eliminated from jury selection.

Of late, this writer has come to the conclusion that the initial purpose of the jury has been reduced to a secondary function in our legal system. At inception, the jury was a method by which a designated number of citizens were selected to listen to facts introduced into evidence from which certain deductions were made; and if those deductions determined a criminal act had occurred and the accused was guilty as defined by the law, the jury would make a finding of guilty. Absent such findings, the jury would direct an acquittal.

At the present time, however, the prominent feature in jury selection is to insure to an accused that persons of his or her race are not purposefully excluded from serving as potential jurors. This writer has heard that the justification for such practice is that persons of the same ethnic or racial status (as the accused) can more readily understand the acts and conduct of the accused. This is not only pure nonsense but, even more seriously, underminds the real purpose of the jury, that being to listen to the evidence and from those facts and under proper instruction upon the law, determine guilt or innocence. Stated another way, it is not a juror’s function to decide guilt or innocence because of the color of the skin of the accused or whether the accused is from the same general neighborhood as prospective jurors, or any other racial or social relationship which might actually or potentially interrelate an accused with a prospective juror.

Having deviated from the original purpose and intent of the jury function, the system not only permits, but in fact, encourages and emphasizes the selection of jurors which will be most favorable to one side of a case, be it the prosecution or defense, as opposed to encouraging and emphasizing and, in fact, demanding the selection of jurors who display the required intelligence to listen to the evidence, make the necessary deductions therefrom, and who will follow the instructions upon the law.

Once again, this writer emphasizes that the elimination of peremptory challenges in criminal cases will aid in the return of the jury process to its original purpose.

Correspondingly, the elimination of the peremptory challenges in criminal cases will remove the practice of juror selection because of racial, social, or any other favorable relationships between an accused and potential jurors. Favoritism for or against one side or the other, be in prosecutorial or defense, has no place in our legal system, yet Batson, Smith, and the present case continue to at least encourage, if not demand, such favoritism.