# 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 j udgment following a jury trial convicting him of class B felony assault in the first deg ree, 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 burgl ary in the first degree, for which he was sentenced as a prior and persistent offender to a tot al of 25 years’ imprisonment. We affirm. Factual Background On December 10, 2015, Kenneth Strong (Strong), a small busines s owner, was returning home from the barber shop wit h his two-year-o ld son. Strong br ought his son into the garage and returned to his car to retri eve a package. When he returne d to the garage, he encountered a man wearing a mask over half his face and holding a gun. Stron g lunged for the gun, and a struggle ensued. The man str uck Strong in the head with the gu n several times, causing2 lacerations that would require staples. During the struggle, t he gun fired; a bulle t was later found lodged in Strong’s house. The m an then fled through Strong’s a nd neighbors’ backyards. Strong and several neighbors each called 911, and law enforcem ent responded. A crime scene investigator processe d the scene, col lecting 20 blood sam ples from the area. Near the blood, investigators found a Bluet ooth device, which they sent to a lab for blood swabs and DNA testing. The blood samples in th e area belonged to Strong. Th e DNA found on the Bluetooth device belonged to Appellant. A short time later, law enforcem ent received a tip Appellant w as at his girlfriend’s home in St. Louis County. Officers re sponded to the location, and s everal 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 wi thin tell someone not to open the door. Eventually, Appellant’s gi rlfriend answered the door. A s she answered, Appellant slipped out from a second story window , jumped to the ground, and fled. Officers pursued Appellant for several blocks before they caug ht up to him when he attempted to hide under a bush. T wo detectives tried to pull A ppellant out, and he began to struggle, thrash, and kick. Offi cers subdued Appellant as he f ought, administering some knee strikes, one or more of them hitting Appellant’s face. Detecti ves searched the bushes where Appellant was found, locating a cellphone. Appellant was handc uffed and returned to his girlfriend’s home to be questioned. Upon arriving back at his girlfrie nd’s home, Appellant was rea d his Miranda rights. 1 Appellant stated he understood his rights. A detective asked A ppellant whether he had discarded any firearms as he fled. Appella nt replied the officers would find what they were looking for

1 Miranda v. Arizona, 384 U.S. 436 (1966).3 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 wa rrant and searched Appellant’s ce llphone. They found a video depicting two men surveilli ng Strong’s home from a car wh ile discussing plans to rob Strong. When showed this vide o, Strong recognized one of the v oices as belonging to James Scott, an acquaintance of his. S trong knew James Scott because Strong had sold him a car, and later repossessed it due to nonpayment on the loan. Also visib le in the video was a decal of a rose on the window of the car, whi ch was the same decal as one on Appellant’s girlfriend’s car. James Scott later confessed t o police he had been in the car wi th Appellant surveilling Strong’s home, but Appellant was the ind ividual who attacked Strong. Appellant was tried before a jur y and convicted of first degree assault, armed criminal action, unlawful use of a wea pon, unlawful possession of a fire arm, and first degree burglary. Additional facts will be adduced as necessary. Points Relied On Appellant makes three points on appeal. Point I claims the tr ial court plainly erred by allowing into evidence statemen ts Appellant made to police offi cers shortly after his arrest. Point II claims the trial cour t plainly erred by overruling App ellant’s Batson challenge made after the State used a peremptory challenge to strike an Africa n-American juror. Point III claims the trial court abused its d iscretion by overruling Appellant’s objection to the State questioning jurors about small business owne rs making cash deposits, which inaccurately characterized the facts of the case.4 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 involuntar y due to the physical force used by police to apprehend him . No ruling on this motion appe ars in the record. At trial, the State introduced as evidence A ppellant’s statements to police. Appellant made no objection when these statements we re introduced at trial. Motions to suppress evidence ar e interlocutory, and a contempo raneous 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-st ep process. First, we consider whether Appellant’s point of error facially establishes s ubstantial grounds for believing a manifest injustice or a miscarriage of justice has occurred. S tate 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 determ ine whether a miscarriage of justice or manifest injustice will result from the error remain ing uncorrected. Id. “All prejudicial error... is not plai n error[;] plain errors are tho se 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 w hy we must reverse the judgmentof 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. 2017.5 because the police used physical force in apprehending him, and thus any waiver of his Miranda rights is rendered i nvoluntary and void. A ppellant provides no citation for this argument. “The test for voluntariness is whether, under the totality of the circumstances, the defendant was deprived of fr ee choice to admit, to deny, or to refuse to answer and whether physical or psychological coerci on was of such a degree that th e 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-ar rest statements be excluded when police employ force to arrest him. There is no indication in t he record before us to show of ficers used any more force than was reasonable to apprehend Appe llant, who was fleeing and stru ggling with police, and was wanted on suspicion of committing violent armed robbery. Addit ionally, Appellant was questioned at his girlfriend’s home, blocks from where he was a rrested, by a different detective than those involved in his pursuitand 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 cou rt to determine whether his statements were made voluntar ily because, alth ough he filed a m otion to suppress those statements, no ruling on that mo tion appears in the record. Insupport 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 disti nguishable from the instant cas e, and unhelpful to Appellant. Edwards involved a criminal de fendant who challenged the admis sibility of his prior statements via oral motion on t he morning of trial. Id. at 229 . The trial court refused to hear the motion before the beginning of tri al, to which t he defendant ob jected. Id. When the State introduced the defendant’s state ments, the defendant again obje cted. Id. At the close of6 evidence, the trial court announ ced it had considered the defen dant’s motion, and was overruling it in its entirety. Id. On appeal, the defendant claime d the trial court had not affor ded him due process in overruling his motion. Id. Specifi cally, the defendant compla ined 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 th e trial court had accepted th e defendant’s motion to suppress it was obligated to hear the motion out side the presence of the jury to determine whether the complained-of statements were made voluntarily. Id. at 230. B ecause the trial c ourt failed to do so, the case was remanded for a post-trial h earing on the issue of whether the defendant’s statements were voluntary. Id. at 231. The circumstances are very diffe rent in the instant case. Her e, Appellant sought to suppress his statements via pret rial motion. Moreover, from th e record it appears that, unlike Edwards, there was a hearing on A ppellant’s motion outside of t he hearing of the jury. Although no ruling on this motion appears in the record, this does not e ntitle Appellant to remand for a rehearing. From the current st andpoint, it is immaterial wheth er the trial court granted or denied Appellant’s pretrial motion, b ecause Appellant did not object t o the statement’s introduction at trial. As it was explained by the court in State v. Lassen: The rule requiring a contempor aneous objection is not a mere te chnical 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 th e court’s ruling on a motion to suppress is interlocu tory. By the tim e the evidenc e is offered, the testimony received may have made the evidence admissible, and i n any event, the trial court should be given an opportu nity to reconsider its ru ling. 679 S.W.2d at 368 (citations omitted).7 As stated above, it is immateri al whether the trial court gran ted or denied Appellant’s motion to suppress because that ru ling was interlocutory and su bject to change once the statements were offered at tr ial. And, unlike the defendant inEdwards, Appellantfailed to object to the complained-of statement s when they were offered, leaving the issue unpreserved for review. Appellant fails to facially estab lish 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 o verruling Appellant’s Batson 3 challenge to the State perempto rily striking Juror 11, the only African-American juror on the panel. During voir dire, the State aske d the panel if anyone felt pol ice 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 pr ison. Juror 11 indicated he di d, stating his son had been prosecuted for robbery and had b een treated unfairly by law enf orcement. After voir dire, the State used a peremptory str ike 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 reas on for its strike. After some discussion, the trial court overruled Appellant’s objection. Appellant did not include this objectio n in his motion for a new trial, thus leaving the issue unpreserved. A ppellant 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).8 Appellant argues the trial court plainly erred by overruling h is 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 juro rs it had struck for the sa me 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 gen der, ethnic origin, or race.” State v. Marlowe, 89 S.W.3d 464, 468 (Mo. banc 2002), citing U.S. v. Mar tinez-Salazar, 528 U.S. 304, 315 (2000). If one party believes th e other is striking a juro r on the basis of race, they may challenge the strike in a three -step procedure: first, a party challenges the s trike as being done on the basis of race; second, the ot her party must supply a race-n eutral reason for t he strike; third, the challenging party must prove t he given race-neutral reasons are pretextual, and the true motivation is the j uror’s race. Id. Here, Appellant challenged the State’s striking Juror 11 as be ing on the basis of his race. In response, the State supplied a n adequate, race- neutral reaso n 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 pros ecuted for robbery. These rea sons are race-neutral, related to the case, clear, specific, and legitimate. See State v. McFadd en, 216 S.W.3d 673, 676 (Mo. banc 2007). At this point, the burden is shi fted to Appellant to prove the se reasons are pretextual. Marlowe, 89 S.W.3d at 468. One way he may prove this is by suc cessfully arguing the explanation itself is deficient, in that it fails to articulate a plausible, legitimate, case-related reason to strike the juror. M cFadden, 216 S.W.3d at 676. But as stated above, the State’s given reasons were legitimate, plausibl e, and related to the instant case. Juror 11 said he believed9 police often used excessive for ce; Appellant believes excessive force was used to apprehend him. Juror 11 also said law enforcemen t had treated his son unfairly when he was prosecuted for robbery; Appellant was being tried for committing a similar cri me. The reasons given by the State for striking Juror 11 art iculated an adequate, race-neutr al reason for doing so. Appellant does not take issue w ith the substance of the State’ s given reasons for the strike, however. Rather, Appellantargues the reasons must be disingenuous because the State failed to point to other jurors i t struck on the same basis. I t is true an important factor the trial court must consider is whether other non-African-American juror s 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 incorrec tly places the bu rden of pointing to similarly situated jurors on the State. It is Appella nt’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 similarl y-situated white jurors who were not struck. Id. Once the State pr offers race-neutral reasons for its strike, it has no burden to identify other similarly situat ed jurors it also struck, especi ally when, as the Stat e points out in its brief, there were no other juro rs who indicate d they believed p olice often used excessive force
and had a family member who was tr eated unfairly by law enforcemen t when prosecuted for a similar crime. If the State we re required to prove its race-ne utral reasons by showing it struck other panel members for those sa me reasons, the State would nev er be able to strike a juror whose answers were unique from t hose of the rest of the panel. The State’s reasons for striki ng Juror 11 were legitimate and race-neutral. Appellant was unable to prove otherwise. The t rial court did not err, plainl y or otherwise, by overruling Appellant’s objection. P oint II is denied.10 Point III Appellant’s final claim relates to questions asked by the Stat e during voir dire. The State asked the panel whether anyone ow ned a small business, and whether any business owners feared being robbed when making c ash deposits for their busines ses. After the State asked several small business owners t he same question, counsel for Ap pellant asked to approach the bench. Counsel for Appellant objec ted to the line of questionin g because there was no evidence Strong was coming from his busin ess 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 subj ect. Appellant requested no r elief from the trial court. Later during voir dire, Appellant aga in brought up this line of quest ioning 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 c ure 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 cou rt was sufficient to preserve the issue for appellate review. We disagree. “Appellate courts ar e merely courts of review for trial errors, and there can be no revie w of a matter which has not be en 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 g rounds 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 pre sents itself at trial. Baumruk, 280 S.W.3d at 615.11 It is true Appellant objected at trial to the Sta te’s line of questioning. However, Appellant’s objection was susta ined, 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 prej udice that might have occurre d with his own voir dire. Not only did Appellant not request a m istrial, he affirmatively sta ted 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 c onvict 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 defend ant must go beyond a mere showing of demonstrable prejudice to show a manifest injustice affecting substantial rights.” Id., citing State v. Parker, 85 6 S.W.2d 331, 332 (Mo. banc 1993). “ Even if the argument is improper, a conviction will be reversed only if it is establish ed 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 St ate’s line of questions was so substantially mislead ing it may have caused s uch prejudice the jury was unable to make a determination based on the evidenc e, given that Strong is a sma ll business owner, and James Scott, Appellant’s accomplice, told police he made the down pay ment for the car he purchased from Strong in cash. However, chief ly we consider the abundant evidence of Appellant’s guilt, which we regard as likely to have affected the jury’s determina tion a great deal more than the State’s questions about sma ll business cash deposits.12 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.