author: VICTOR C. HOWARD, Judge. Judge ELLIS JOSEPH M. ELLIS, Judge,

text:
    Christopher M. KUEHNE, Appellant, v. Susan L. HOGAN, Respondent.
    No. WD 71130.
    Missouri Court of Appeals, Western District.
    June 8, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      Christopher Kuehne, Appellant pro-se.

      Kathleen R. Robertson, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.
   VICTOR C. HOWARD, Judge.

Christopher Kuehne appeals the trial court’s judgment dismissing his legal malpractice action. On appeal, Kuehne contends that the trial court erred in dismissing his petition because it stated a claim for malpractice against his post-conviction attorney. The judgment of the trial court is affirmed.

Factual and Procedural Background

In 1998, Christopher Kuehne was charged with the first degree statutory rape and first degree statutory sodomy of his daughter (“Daughter”). At trial, Connie Guerrero, Kuehne’s ex-girlfriend and Daughter’s mother (“Mother”), testified that Daughter had told her that Kuehne had been sexually abusing her. Daughter, who was ten years old at the time of the trial, testified regarding the abuse that had occurred when she was six or seven years old.

Kuehne’s defense at trial was that Mother and Daughter’s allegations were false. He sought to convince the jury that Mother had a history of making false allegations of sexual abuse and that Mother had fabricated the current allegations and influenced Daughter to falsely accuse Kuehne. In support of this theory, Kuehne’s trial counsel elicited testimony from Mother in which she admitted that she had made previous allegations of sexual abuse against Kuehne and that the Division of Family Services had found her allegations to be unsubstantiated.

The jury convicted Kuehne of the charges. This court affirmed Kuehne’s convictions on direct appeal. See State v. Kuehne, 37 S.W.3d 298 (Mo.App. W.D.2000). Kuehne then filed a Rule 29.15 motion for post-conviction relief in which he asserted that his trial counsel provided ineffective assistance of counsel by failing to call four witnesses that would have supported Kuehne’s defense theory. The motion court denied the motion without an evidentiary hearing.

On appeal, this court reversed and remanded Kuehne’s Rule 29.15 motion for a hearing on the issue of whether his trial counsel was ineffective for failing to call the four witnesses. See Kuehne v. State, 107 S.W.3d 285, 301 (Mo.App. W.D.2003). In his motion, Kuehne alleged that, if called to testify, Greg Guerrero, Mother’s ex-husband, would have testified that Mother had previously falsely accused him of sexually abusing his and Mother’s daughter, Carly Guerrero. Kuehne further alleged that Carly Guerrero would have testified that Mother continually insisted Carly’s father or Kuehne had touched her inappropriately although Carly told her that nothing inappropriate had occurred.

Kuehne also alleged that his trial counsel should have called Daughter’s guardian ad litem to testify because she would have testified regarding Mother and Daughter’s failure to attend a meeting in which a therapist was to observe Kuehne’s interactions with Daughter. Finally, Kuehne alleged that his trial counsel should have called Kuehne’s former criminal attorney to testify. His former attorney would have testified that Mother provided police officers with a videotape that allegedly contained evidence of Kuehne abusing Daughter but that, after viewing the video, the police ceased their investigation of Kuehne.

This court found that, if these four witnesses testified as Kuehne said they would, their testimony would impeach Mother’s credibility and support Kuehne’s defense that Mother had fabricated the sexual abuse allegations against him. Thus, the case was remanded for a hearing on whether Kuehne’s trial counsel was ineffective in failing to present the testimony of the four witnesses. On remand, Susan Hogan, a public defender, served as Kuehne’s post-conviction counsel. At the hearing, Hogan presented the testimony of Kuehne and Kuehne’s trial counsel and did not call any of the four witnesses to testify. The motion court denied Kuehne’s Rule 29.15 motion, finding that Kuehne’s testimony as to what the four witnesses’ testimony would be was speculative and insufficient to prove his allegations of ineffective assistance of counsel. This court affirmed the motion court’s denial of Kuehne’s Rule 29.15 motion. See Kuehne v. State, 182 S.W.3d 266 (Mo.App. W.D.2006).

After the denial of his Rule 29.15 motion was affirmed, Kuehne filed a petition against Hogan, claiming that she had committed legal malpractice by not calling the four witnesses to testify at the Rule 29.15 motion hearing. Kuehne alleged that, based on his instructions and the ruling of this court which remanded his Rule 29.15 case for a hearing, Hogan had a duty to call the four witnesses to testify at the hearing. He contends that, but for Hogan’s failure to call the witnesses, he would have won his Rule 29.15 hearing. Kuehne seeks both compensatory and punitive damages.

Hogan filed a motion to dismiss Kuehne’s petition, arguing that Kuehne failed to state a claim for legal malpractice and that she was protected by the doctrine of official immunity. The trial court granted the motion and dismissed the case with prejudice. This appeal by Kuehne followed.

Standard of Review

“The standard of review for a trial court’s grant of a motion to dismiss is de novo.” Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). Where, as here, the trial court does not indicate why it dismissed the petition, we will presume it was for a reason stated in the motion to dismiss and will affirm if dismissal was appropriate on any ground stated therein. Costa v. Allen, 274 S.W.3d 461, 462 (Mo. banc 2008).

A motion to dismiss for failure to state a claim “‘is solely a test of the adequacy of the plaintiffs petition.’ ” Le-Blanc v. Research Belton Hosp., 278 S.W.3d 201, 204 (Mo.App. W.D.2008) (quoting Pikey v. Bryant, 203 S.W.3d 817, 821 (Mo.App. S.D.2006)). When reviewing the dismissal of a petition for failure to state a claim, we treat all facts alleged in the petition as true “and liberally grant[] to plaintiff all reasonable inferences therefrom.” Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002). However, we must disregard conclusions which are not supported by the facts pled. Ford Motor Credit Co. v. Updegraff, 218 S.W.3d 617, 621 (Mo.App. W.D.2007). If the plaintiffs petition “sets forth any set of facts that, if proven, would entitle the plaintiff[ ] to relief, then the petition states a claim.” Lynch, 260 S.W.3d at 836. Thus, the petition is reviewed “to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Reynolds, 79 S.W.3d at 909.

Discussion

In his sole point on appeal, Kuehne contends that the trial court erred in dismissing his petition because he stated a claim for legal malpractice against his post-con-vietion attorney. He claims that his petition contained allegations sufficient to establish each element of legal malpractice and that Hogan is not entitled to official immunity.

In order to survive a motion to dismiss, a plaintiff must allege facts sufficient to support the following four elements of a legal malpractice claim: (1) the existence of an attorney-client relationship; (2) negligence or a breach of contract by the attorney; (3) proximate causation of the plaintiffs damages; and (4) damages to the plaintiff. See Fox v. White, 215 S.W.3d 257, 260 (Mo.App. W.D.2007). Therefore, the plaintiff must allege facts demonstrating “a causal connection between his or her attorney’s negligence and the resulting injury.” Collins v. Mo. Bar Plan, 157 S.W.3d 726, 732 (Mo.App. W.D.2005). In the context of a malpractice action, the plaintiff must establish causation by alleging that, “ ‘but for the attorney’s negligence, the result of the underlying proceeding would have been different.’ ” Id. (quoting Rodgers v. Czamanske, 862 S.W.2d 453, 458 (Mo.App. W.D.1993)).

Although there are no Missouri cases addressing whether a plaintiff may maintain a malpractice cause of action against his post-conviction attorney, there are several Missouri cases which address the elements a plaintiff must prove in a malpractice action against his trial counsel. See, e.g., State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498 (Mo.App. E.D.1985). In O’Blennis, the court found that, where the plaintiff had been convicted of a crime and thereafter sued his trial counsel for malpractice, factual innocence of the criminal charge was an indispensable element of his cause of action. Id. at 503. Such cases also require the plaintiff to “allege and establish that the actions or omissions by [the trial attorney] prevented [the plaintiffs] acquittal.” Johnson v. Schmidt, 719 S.W.2d 825, 826 (Mo.App. W.D.1986).

While Missouri cases rejecting malpractice claims against á criminal defendant’s trial counsel have been decided, in part, based on the principles of collateral estop-pel, those cases also emphasize public policy concerns associated with such claims. For instance, in O’Blennis, the court concluded that to permit the continuation of the malpractice claim without requiring a showing of innocence would allow the convicted criminal ‘“to profit by his own fraud, or to take advantage of his own wrong, or to found a claim upon his iniquity, or to acquire property by his own crime.’” O’Blennis, 691 S.W.2d at 504 (quoting McCallop v. Laspy (In re Estate of Laspy), 409 S.W.2d 725, 728 (Mo.App.1966)). As such, the court found that it was “against public policy for the suit to continue in that it ‘would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.’” Id. (quoting Laspy, 409 S.W.2d at 737).

In light of the aforementioned cases, Hogan argues that, because Kuehne’s claim is premised on a challenge to the factual basis of his conviction, Kuehne must allege that he is actually innocent of the charges in order to prove causation and damages. Kuehne contends that cases such as O’Blennis and Johnson do not apply to his claim in that he is attempting to maintain a malpractice claim against his post-conviction counsel, rather than his trial counsel. Kuehne asserts that, in order to withstand a motion to dismiss his malpractice claim against his post-conviction counsel, he must allege only that, but for Hogan’s negligence, he would have won his Rule 29.15 hearing.

Although there are no Missouri cases dealing with the specific issues raised in this appeal, we find the reasoning of a recent Wisconsin case addressing a similar issue to be persuasive. See Tallmadge v. Boyle, 300 Wis.2d 510, 730 N.W.2d 173 (2007). In Tallmadge, the Wisconsin Court of Appeals addressed the question of whether a convicted defendant was required to prove actual innocence when pursuing a malpractice claim against an attorney he hired to file a writ of habeas corpus. Id. at 525.

After the defendant was convicted of fifteen counts of sexual assault and the convictions were affirmed on appeal, he retained an attorney to file a writ of habe-as corpus to secure post-conviction relief. Id. at 514-16. When the attorney failed to file a federal or state writ, the defendant filed an action against the attorney alleging legal malpractice. Id. at 517-18. The defendant argued that, because the attorney failed to file a writ of habeas corpus, the defendant lost his opportunity to file a writ, which prevented him from prevailing on the writ and obtaining a new trial. Id. at 523. The defendant also argued that he did not have to prove actual innocence because he was suing his post-conviction attorney rather than his trial counsel. Id. at 525.

The Wisconsin Court of Appeals nevertheless held that the defendant had to prove that he was actually innocent of the underlying criminal charges, noting that the actual innocence requirement is not limited to only criminal defendants who sue their former trial attorneys for malpractice. Id. The court listed several public policy considerations in support of its finding, including the concerns that permitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to be indirectly rewarded for his crimes and would shock the public- conscience. Id.

We similarly find that the public policy concerns underlying the actual innocence requirement in the context of a malpractice suit against a criminal trial attorney apply equally to cases involving a criminal defendant’s post-conviction counsel. Therefore, Kuehne’s innocence of the criminal charges for which he was convicted is essential to satisfy the causation element of his claim. Although Kuehne asserted in his petition that he is an innocent man, his allegation is merely a bare conclusion without factual support. The fact of his guilt was previously determined when he was convicted of the criminal charges, and Kuehne is therefore barred from asserting a collateral civil claim where actual innocence is an essential element.

Kuehne argues that to prevail in his cause of action he need only prove that, absent his attorney’s negligence, he would have won his Rule 29.15 motion and received a new trial. That is a proposition that is hard to swallow since it could lead to a quite unhandy and repugnant scenario where a convicted inmate wins a damage award from the confines of his jail cell without ever establishing his innocence. In a case where a criminal defendant sues his post-conviction attorney for malpractice, success means not merely obtaining a new trial, but being acquitted of the charges at a new trial. Kuehne has not sufficiently alleged facts to support the element of causation where he cannot show that, but for his post-conviction attorney’s actions, he would have been acquitted at a new trial. The four witnesses that Kuehne claims should have been called purportedly would have impeached Mother’s credibility and, therefore, could have, at best, caused the motion court to find that Kuehne’s trial counsel was ineffective, grant his Rule 29.15 motion, and order a new trial. Even so, that does not equate to an acquittal at the new trial. Kuehne did not allege in his petition that he would have won the new trial if one had been ordered. Ultimately, even if Kuehne had made such a claim, and we take his allegations of negligence as true, any assertion that he would have been acquitted at a new trial but for Hogan’s actions is purely speculative.

For these reasons, Kuehne has failed to state a legal malpractice claim against his post-conviction attorney. Because we find that Kuehne failed to state a claim for malpractice, we do not reach the issue of official immunity. The judgment of the trial court is affirmed.

Judge WELSH concurs.

Judge ELLIS

concurs in separate concurring opinion.

JOSEPH M. ELLIS, Judge,

concurring.

I concur in the result reached by the majority, namely, affirming the trial court’s dismissal of Kuehne’s petition with prejudice. I am troubled, however, by the majority’s adoption of an actual innocence standard for malpractice cases brought by criminal defendants. The effect is to carve out what I perceive to be an unnecessary exception to long and well-settled tort law relating to professional negligence by attorneys and to create the potential for absurd results. It is my view that there is no need for such an exception because public defenders, such as Susan Hogan in this case, are shielded from liability for damages by the doctrine of official immunity.

While the issue of whether public defenders are protected from malpractice claims by official immunity has been touched on in at least two prior Missouri cases, the question remains a matter of first impression in this State. In Johnson v. Schmidt, 719 S.W.2d 825 (Mo.App. W.D.1986), the plaintiffs malpractice action against a public defender who represented him in his criminal case was found to be premature and “the question of whether respondent [public defender] is protected from such claims by the doctrine of official immunity is neither reached nor ruled.” Id. at 826. In addition, this Court addressed the subject in an earlier appeal of our companion case today, Costa v. Allen, No. W.D. 71055, 2008 WL 34735 (Mo.App. W.D. Jan. 2, 2008); but after opinion in this Court, the Missouri Supreme Court accepted transfer, rendering this Court’s opinion in that case for naught and of no precedential value. Philmon v. Baum, 865 S.W.2d 771, 774 (Mo.App. W.D.1993).

Nevertheless, I would be remiss if I did not mention that the opinion issued by this Court in that first Costa case held that the doctrine of official immunity did not extend to public defenders. That opinion suggests that the result it reached was consistent with the majority of foreign jurisdictions. However, a careful review of case law from around the country leads me to the conclusion that the vast majority of jurisdictions extend immunity to public defenders in one form or another, whether it be judicial immunity, statutory immunity, official immunity, or some variation thereof. Moreover, some of the case law relied on in our prior opinion is mischaracterized. For instance, the opinion quotes a Pennsylvania Supreme Court decision, Reese v. Danforth, 486 Pa. 479, 406 A.2d 735 (1979), as supporting its holding. But Pennsylvania denied immunity to public defenders strictly because that state’s official immunity doctrine established by common law only applies to policy-making officials and does not extend to “mere public employees.” Id. at 737. Since Missouri common law extends immunity to employees, Reese is not remotely on point. Suffice it to say that my research leads me to the conclusion that our prior withdrawn opinion addressing the issue was incorrect. In the analysis that follows, I comment on virtually all of the arguments made in the original Costa opinion without further express reference to that opinion.

The United States Supreme Court has left the question of immunity to the states, noting that “when state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law.” Fern v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355 (1979). In Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984), while holding that public defenders have no immunity from § 1983 liability for intentional conspiratorial misconduct, the Supreme Court observed that the states may well provide immunity to public defenders against tort claims arising under state law and may even provide protection for intentional acts. After noting that few state appellate courts had yet addressed the general issue of public defender immunity, the Supreme Court further stated:

Immunities in this country have regularly been borrowed from the English precedents, and the public defender has a reasonably close ‘cousin’ in the English barrister. Like public defenders, barristers are not free to pick and choose their clients. They are thought to have no formal contractual relationship with their clients, and they are incapable of suing their clients for a fee. It is therefore noteworthy that English barristers enjoyed in the 19th century, as they still do today, a broad immunity from liability for negligent misconduct.

467 U.S. at 921, 104 S.Ct. at 2825 (internal citations omitted).

While immunity has not been specifically granted to public defenders, Missouri recognizes two different forms of immunity for public employees in general. “[T]he public duty doctrine along with the official immunity doctrine are two distinct yet related common law doctrines, firmly entrenched in Missouri law, which impose obstacles to civil recovery against public officials.” Green v. Missouri Dep’t of Transp., 151 S.W.3d 877, 881 (Mo.App. S.D.2004) (internal quotation omitted).

“The public duty doctrine shields public officers, and the governmental bodies that employ them, from liability for injuries or damages resulting from the officers’ breach of a duty owed to the general public and does not shield public officials from liability resulting from the breach of a duty owed to particular individuals.” Id. “ ‘By the public duty doctrine, a public employee is not civilly liable — even for breach of a ministerial duty — if that duty is owed to the general public rather than to a particular individual.’ ” Id. at 882 (quoting Jungerman v. City of Raytown, 925 S.W.2d 202, 205 (Mo. banc 1996)). Because all of the allegations contained in Kuehne’s petition related only to duties owed to him personally and not to the public in general, the public duty doctrine provides no protection in this case and would ordinarily be inapplicable to any malpractice claim.

Hogan relies instead on the defense of official immunity. “The judicially-created doctrine of official immunity ‘protects public employees from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.’ ” Boever v. Special Sch. Dist. of St. Louis County, 296 S.W.3d 487, 491 (Mo.App. E.D.2009) (quoting Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008)). Thus, it does not matter whether the duty relates to the public in general or to an individual member of the public so long as the acts involved are discretionary in nature.

“Whether an act can be characterized as discretionary depends on the degree of reason and judgment required.” Southers, 263 S.W.3d at 610. “A discretionary act requires the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued.” Id. “Official immunity is intended to provide protection for individual government actors who, despite limited resources and imperfect information, must exercise judgment in the performance of their duties.” Id. at 611.

On the other hand, “[a] ministerial function is one ‘of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed.’ ” Boever, 296 S.W.3d at 492 (quoting Southers, 263 S.W.3d at 610). “In addition, in order to prescribe a ministerial duty, the statute or regulation must be mandatory and not merely directory.” Id. “Absent allegations averring the existence of a statutory or departmentally-mandated duty and a breach of that duty, a petition fails ‘to state a claim that is not barred by the doctrine of official immunity as a matter of law.’ ” Id. (quoting State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 446 (Mo. banc 1986)).

Kuehne contends that, beyond the discretionary/ministerial distinction, official immunity, like the public duty doctrine and sovereign immunity, requires that the actions of the state employee be “of the essence of governing.” An almost identical argument was recently addressed and rejected in Richardson v. City of St. Louis, 293 S.W.3d 133, 140 (Mo.App. E.D.2009):

[T]o the extent [Appellant] argues that official immunity applies only to discretionary actions that are purely governmental in nature, this is not the law in Missouri. Missouri courts have routinely extended official immunity to discretionary acts even when the public official’s actions were not governmental in nature. See, e.g. State ex rel. St. Louis State Hosp. v. Dowd, 908 S.W.2d 738, 741 (Mo.App. E.D.1995) (supervisor at public hospital’s decision to turn on paper shredder was discretionary), abrogated on other grounds by Cain v. Mo. Highways and Transp. Comm’n, 239 S.W.3d 590 (Mo. banc 2007); Warren v. State, 939 S.W.2d 950, 954 (Mo.App. W.D.1997) (prison officials’ decision regarding the absence of a safety guard on a table saw was discretionary). Recently, our Supreme Court thoroughly discussed the scope of official immunity and did not restrict immunity only to those actions which “go to the essence of governing,” See Southers, 263 S.W.3d at 610-11. Moreover, in looking closely at the source of the “essence of governing” language quoted in Eli Lilly, we find that the phrase was originally used by the Supreme Court in its Jones decision when discussing the contours of sovereign immunity rather than official immunity and therefore is of limited utility as we consider the reach of official immunity under the circumstances presented here.

In light of Richardson, any argument that public defenders should not benefit from official immunity based on analogy to state employed physicians being subject to medical malpractice claims in reliance on State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761 (Mo.App. E.D.1981), is misplaced.

Public defender Hogan raised official immunity as an affirmative defense to Kuehne’s claims. Accordingly, the question is whether Hogan was entitled to official immunity from the claims asserted in Kuehne’s petition. In order for this to be established and dismissal to be appropriate, Hogan’s entitlement to immunity must be apparent when the allegations in the petition are viewed in the light most favorable to Kuehne. Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002). So viewed, it must be clear that Hogan is a state employee and that the allegedly negligent actions were discretionary in nature.

Kuehne acknowledges in his petition that Hogan, who was appointed to represent him, was employed by the Missouri Public Defender System. Public defenders in the Missouri Public Defender System are undeniably “public employees.” The Office of the State Public Defender is a department within Missouri’s judicial branch. § 600.019.1. A director, deputy directors, and public defenders are selected by the Public Defender Commission created by the legislature and comprised of individuals appointed by the Governor on advice and consent of the senate. § 600.015. Each public defender so appointed has the authority to then employ assistant public defenders, deputy public defenders, and other support personnel. § 600.021.1. “A complete budget for the state public defender system [is] provided through an annual appropriation subject to approval by the governor and the general assembly.” § 600.010.2. Furthermore, all public defenders and those employed by public defenders are entitled to all benefits provided for in the Missouri state employees’ retirement system. § 600.010.3.

Accordingly, we must next consider whether Hogan’s allegedly negligent acts were discretionary or ministerial in nature. In his petition, Kuehne claimed that Hogan was negligent in failing to secure the attendance of witnesses, necessary to support his claim for post-conviction relief despite Kuehne’s express instructions to do so.

“Whether an act can be characterized as discretionary depends on the degree of reason and judgment required.” Southers, 263 S.W.3d at 610. “A discretionary act requires the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued.” Id. Hogan’s decisions regarding which witnesses to call to testify at the post-conviction hearing clearly involve the exercise of professional judgment in light of the facts and posture of the case and are, therefore, discretionary in nature. No statute or regulation dictated that those witnesses must be called.

Thus, the only potential issue remaining is whether some compelling policy reason mandates that an exception be carved out of official immunity to render it inapplicable to public defenders. Having reviewed extensive case law on the subject and eon-sidered the policy concerns related to allowing public defenders to retain official immunity, I can only conclude that the reasons in favor of allowing public defenders to avail themselves of such immunity are far more compelling than those policy concerns that would favor excepting them from such immunity.

In Dziubak v. Mott, 503 N.W.2d 771, 777-78 (Minn.1993), the Minnesota Supreme Court convincingly summed up its policy reasons for stretching the common law doctrine of judicial immunity to cover public defenders, stating:

Immunity from suit for public defenders best serves the indigent population in preserving the resources of the defender’s office for the defense of the criminally accused. Immunity also aids in the recruitment of qualified attorneys to represent indigent clients in criminal proceedings. Immunity preserves the criminal justice system which relies upon the judge, prosecutor and public defender as essential participants. This serves the best interests of indigent defendants and of society as a whole.... Since justice demands that a defense be provided to criminal defendants who are not able to afford privately retained counsel, it is essential that a sufficient number of qualified attorneys be willing and able to provide this defense. Immunity will aid in the continued recruitment of attorneys to perform this service in our criminal justice system; such service is eagerly sought by most attorneys. The accused defendant is not the sole beneficiary. Society as a whole depends on the role of defense counsel to secure an ordered system of liberty and justice, as ordained by our Constitution. The extension of immunity to public defenders will ensure that the resources available to the public defender will be used for the defense of the accused, rather than diminished through the defense of public defenders against civil suits for malpractice. Immunity will conserve these resources to provide an effective defense to the greatest number of indigent defendants.

While obviously addressing judicial immunity, rather than official immunity, and whether to extend that doctrine, these policy reasons are equally applicable to deciding whether to except public defenders from our established official immunity doctrine. This opinion was shared by the Supreme Court of Vermont which found the policy arguments set forth in Dziubalc persuasive in its holding that public defenders were state employees entitled to statutory immunity for negligence while acting in within the scope of their employment just like any other state employee. Bradshaw v. Joseph, 164 Vt. 154, 666 A.2d 1175, 1178 (1995). The Vermont Supreme Court further noted:

The apparent paradox of having the government support and pay for a constitutionally adequate system of legal representation for those charged by the government with criminal offenses was inherent in the public defender system from the outset. It is a variant of numerous interbranch conflicts that inhere in our system of separation of powers, including the clear paradox of having the judicial branch decide constitutional challenges to legislative enactments whereas the Legislature appropriates the funds that sustain the judicial branch. The Legislature acknowledged the potential problem by providing in 13 V.S.A. § 5253(a) that “no other official or agency of the state may supervise the defender general or assign [the defender general] duties in addition to those prescribed by this chapter.”
Categorizing public defenders as state employees for the purposes of § 5602 is not likely to exacerbate potential conflicts, and given the generally scarce resources with which defenders’ offices operate, may actually promote a vigorous and independent defense. As one court stated, quoting the public defender’s brief in that case:
The most probable result of ... a decision [not to grant immunity] would be the exact opposite of what the courts want. Both the Court and the Public Defender’s Office [seek] adequate representation of defendants in criminal proceedings .... however, if a civil rights suit from unsatisfied clients is a constant threat to the Attorney involved, then there would be a chilling effect upon Defense Counsel’s tactics. Defense Counsel would be caught in an intrinsic conflict of protecting himself and representing his client.
Brown v. Joseph, 463 F.2d 1046, 1049 (3d Cir.1972) cert. denied, 412 U.S. 950, 93 S.Ct. 3015, 37 L.Ed.2d 1003 (1973). As the Dziubalc court pointed out in a related context, “Immunity also aids in the recruitment of qualified attorneys to represent indigent clients in criminal proceedings. Immunity preserves the criminal justice system which relies upon the judge, prosecutor and public defender as essential participants. This serves the best interests of indigent defendants and of society as a whole.” 503 N.W.2d at 777.

Id. (internal quotation omitted).

I find the rationale of the Dziubalc and Bradshaw courts compelling. In addition, the majority of jurisdictions addressing the issue, either judicially or legislatively, have extended immunity of some type to public defenders. See Bradshaw, 666 A.2d at 1178; Dziubalc, 503 N.W.2d at 777; Dontigney v. Connecticut Chief Pub. Defender’s Office, No. CV0840172465, 2009 WL 1706905, at *5-6, 2009 Conn.Super. LEXIS 1426 at *17 (Conn.Super.Ct. May 29, 2009) (noting that Connecticut has extended its sovereign immunity statute to provide immunity for public defenders); Browne v. Robb, 583 A.2d 949, 951 (Del.1990) (stating that Delaware has “recognized that a public defender is protected by qualified immunity under the State Tort Claims Act,” holding that public defenders were state employees and “approvingly cited a decision of the United States Supreme Court which presented arguments in favor of granting immunity to public defenders based upon the traditions of the common law”); Johnson v. Halloran, 194 Ill.2d 493, 252 Ill.Dec. 203, 742 N.E.2d 741, 744 (2000) (“The Public and Appellate Defender Immunity Act provides that public defenders and their assistants and the persons or entities employing them are not liable ‘for any damages in tort, contract, or otherwise, in which the plaintiff seeks damages by reason of legal or professional malpractice, except for willful and wanton misconduct.’ ”); Morgano v. Smith, 110 Nev. 1025, 879 P.2d 735, 736-37 (1994) (quoting NRS 41.032(2)) (holding Nevada provides official immunity to public defenders and their deputies or assistants for malpractice arising out of discretionary decisions made pursuant to his or her duties as a public defender because, by statute, no action may be brought against an officer of the state which is “[biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the state or any of its agencies or political subdivisions or of any officer, employee or immune contractor of any of these, whether or not the discretion involved is abused”); Collins v. Tabet, 111 N.M. 391, 806 P.2d 40, 51 (1991) (“[I]n New Mexico the legislature has decided that a public defender shall not be liable for the performance or nonperformance of his or her services.”); Thorp v. Strigari, 155 Ohio App.3d 245, 800 N.E.2d 392, 401 (2003) (noting that Ohio has held that public defenders, as employees of a political subdivision, are immune from claims of negligence under its Political Subdivision Tort Liability Act, which provides that a public employee is “immune from liability in performing his job unless (1) his acts or omissions are manifestly outside the scope of his employment; (2) his acts or omissions are malicious, in bad faith, or wanton or reckless; or (3) liability is expressly imposed upon the employee by another statute.”); Mooney v. Frazier, 693 S.E.2d 333, 338 (W.Va.2010) (noting that West Virginia’s Public Defender Services Act of 1989 provides immunity for public defenders “from liability arising from that representation in the same manner and to the same extent that prosecuting attorneys are immune from liability”); Tennessee Code Annotated § 8-U-209 (affording immunity to public defenders and their employees acting in their official capacity) & Tennessee Code Annotated § 9-8-307(h) & § 8-H.-208 (providing immunity for personnel of the public defender system under the general statute providing immunity to state employees for acts or omissions within the scope of their employment except for willful, malicious, or criminal acts).

The few cases I have found from other jurisdictions denying immunity to public defenders address the application of judicial immunity or a form of common law immunity that was specifically limited to governmental policy-making officials. Florida, for example, has refused to extend its judicial immunity doctrine to public defenders because:

Considerations which require that a judge and prosecutor be immune from liability for the exercise of duties essential to the administration of justice, do not require that the same immunity be extended to the public defender. While the prosecutor is an officer of the state whose duty it is to see that impartial justice is done, the public defender is an advocate, who once appointed owes a duty only to his client, the indigent defendant. His role does not differ from that of privately retained counsel.

Schreiber v. Rowe, 814 So.2d 396, 898 (Fla.2002) (internal quotation omitted). The court further noted Florida has, by statute, “extended the waiver of sovereign immunity to public defenders, thereby exempting public defenders and their employees from personal liability.” Id. at 399.

New Jersey has also determined that absolute judicial immunity should not be extended to public defenders because, unlike judges and prosecutors, public defenders were not serving the interests of society as a whole and that public defenders are, therefore, subject to liability for malpractice. P.T. v. Richard Hall Cmty. Mental Health Care Ctr., 364 N.J.Super. 546, 837 A.2d 427, 432-33 (N.J.Super. Ct. Law Div.2000). Moreover, the New Jersey Tort Claims Act does not shield public defenders because it only protects public employees “for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature.” Delbridge v. Office of the Pub. Defender, 238 N.J.Super. 288, 569 A.2d 854, 861 (N.J.Super. Ct. Law Div.1989). Thus, the nature of the immunities created by New Jersey statutory and common law are significantly different from those existing in this State.

I have previously noted that Pennsylvania has denied immunity to public defenders because that state’s official immunity doctrine established by common law only applies to policy-making officials and does not extend to “mere public employees.” Reese v. Danforth, 486 Pa. 479, 406 A.2d 735, 737 (1979). Virginia, on the other hand, denied governmental immunity to public defenders because that common law doctrine only applied to employees over whom the state exerted a high level of control and the State had almost no control over the pleadings or defense tactics of a public defender. Adkins v. Dixon, 253 Va. 275, 482 S.E.2d 797, 800-01 (1997).

None of these cases are relevant to Missouri’s common law doctrine of official immunity and offer no compelling policy reason for exempting public defenders from official immunity as it exists in this State.

For the foregoing reason, it is my view that public defenders are clearly immune from malpractice claims under the official immunity doctrine in that they are state employees utilizing discretion in the course of their employment. Since Hogan is a public defender employed by the Missouri Public Defender System and the errors and omissions about which Kuehne complains in his petition were discretionary in nature, I would affirm the dismissal of Kuehne’s petition on the basis of official immunity. Accordingly, I concur in the result reached by the majority but do not join in the majority’s rationale for that result.

      . Prior to his malpractice action, Kuehne also filed a federal habeas petition, which was denied.

      . Although Hogan makes arguments regarding a purported breach of fiduciary duty claim, it appears from Kuehne's petition and brief on appeal that his only claim is one of legal malpractice based on Hogan’s alleged negligence. Therefore, we do not address Hogan’s arguments regarding a breach of fiduciary duty claim.

      . This court reached the same conclusion in a case with similar facts which is handed down contemporaneously with this case. See Costa v. Allen, 323 S.W.3d 383, 387 (Mo.App. W.D.2010) (holding that a criminal defendant’s malpractice claim against his post-conviction counsel was barred by the presumption of guilt imposed by a final judgment of conviction).

      . The court in Tallmadge similarly held that the criminal defendant had presented insufficient evidence of causation where he could not show that, but for his post-conviction attorney's conduct, he would have been successful not only in obtaining a new trial, but in obtaining an acquittal at a new trial. See Tallmadge, 300 Wis.2d at 524-25 (finding that any assertion that, but for the post-conviction attorney's actions, the defendant "would be a free man [was] purely speculative.”).

      . My concern is equally applicable to the majority opinion in Costa v. Allen, No. WD 71055, (Mo.App.W.D.[date]), a case with similar facts being handed down contemporaneously with this case.

      . The question was also raised in a federal case involving application of Missouri law but was not decided as the court held that the underlying action was barred by the statute of limitations. Underwood v. Woods, 406 F.2d 910 (8th Cir.1969). A federal court decision on the issue would not have been binding on Missouri courts in any event. Scott v. Blue Springs Ford Sales, Inc., 215 S.W.3d 145, 167 (Mo.App. W.D.2006).

      . It is noteworthy that our Supreme Court's opinion after transfer decided the case solely on the basis that Costa's petition did not state a claim upon which relief could be granted in that it asserted “no claim for breach of fiduciary duty, constructive fraud, or otherwise.” Costa v. Allen, 274 S.W.3d 461, 463 (Mo. banc 2008). Indeed, the Court expressly stated that it was unnecessary to "decide if Allen effectively raised official immunity" because Costa denied his action invoked “tort principles measured by a standard of care.” Id. at 463 n. 4.

      . Official immunity was first recognized in 1854 and has been accepted policy in this State ever since. Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008) (citing Reed v. Conway, 20 Mo. 22 (1854)). The public duty doctrine, on the other hand, was not adopted until 1970. Id. at 611.

      . Official immunity is restricted to claims of negligence and does "not apply to conduct that is willfully wrong or done with malice or corruption.” Southers, 263 S.W.3d at 612.

      . Referring to State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761 (Mo.App. E.D.1981).

      . All statutory references are to RSMo 2000 unless otherwise noted.

      . As a practical matter, virtually any decision or action taken by an attorney during trial involves the exercise of professional judgment and is clearly discretionary in nature.


source: Caselaw Access Project

author: ROY L. RICHTER, Judge.

license: Public Domain

text:
    ST. LOUIS COUNTY, Respondent, v. David SKAER, Appellant.
    No. ED 94279.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 29, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 11, 2010.
    Application for Transfer Denied Oct. 26, 2010.

      Patricia Redington, Victor J. Melen-brink, Clayton, MO, for Appellant.
    David Skaer, St. Louis, MO, pro se.
   ROY L. RICHTER, Judge.

David Skaer (“Skaer”) appeals the trial court’s judgment finding him guilty of failing to have a waste management agreement in effect. We reverse.

I. BACKGROUND

Skaer was charged with violating Section 607.140 of the Revised Ordinances of St. Louis County requiring that residents have in effect a valid waste management agreement. Skaer argued that he produced no waste, and therefore should not be required to have a waste management agreement. At trial, following the presentation of the prosecution’s evidence, the prosecutor requested that the court take judicial notice that “a residence which is occupied will necessarily generate some possibly small amount of non-recyclable waste.” Over Skaer’s objection, the court took judicial notice “that it’s a common fact that people who live in houses generate waste.” The trial court found Skaer guilty and ordered that he pay a fíne of $50. Skaer appeals.

II. DISCUSSION

Because the Prosecution failed to carry its burden at trial, we reverse.

In reviewing a challenge to the sufficiency of evidence, this court accepts as true all of the evidence favorable to the verdict, including all reasonable inferences, and must disregard all inferences contrary to the verdict. State v. Williams, 803 S.W.3d 634, 635-36 (Mo.App. E.D.2010). Such review is limited to determining whether the evidence is sufficient for the fact-finder to find each element beyond a reasonable doubt.

Section 607.140 states:

If waste collection service is reasonably available for a premises where waste is generated, an agreement shall be in effect for the collection of waste generated on the premises with a waste collection service having waste vehicles licensed by the Director for the collection, transportation, and disposal of waste. It shall be the responsibility of the property owner and the person generating the waste to assure that an agreement for the collection of waste is in effect.

The prosecution has the burden of proof to prove each and every element of a criminal case. State v. Taylor, 126 S.W.3d 2, 4 (Mo.App. E.D.2003). Here, the prosecution was required to show both that Skaer did not have a waste management agreement, and that he produced waste. We find that the prosecution failed to carry its burden to show that Skaer produced waste.

Rather than present any evidence of waste produced by Skaer, the prosecution requested that the trial court take judicial notice that “a residence which is occupied will necessarily generate some possibly small amount of non-recyclable waste.” The trial court agreed.

Judicial notice of a fact normally dispenses with the necessity of establishing that fact by evidence. State v. Weber, 814 S.W.2d 298, 303 (Mo.App. E.D.1991). Since the fact judicially noticed may be established without supporting evidence, that fact must have independent reliability and trustworthiness. Id. In Missouri, judicial notice may be taken of a fact which is within the common knowledge of people of ordinary intelligence. Id.

We find that whether or not someone could live at a residence and recycle all his or her waste is not a matter of common knowledge, and should not be accepted as such. Therefore, to carry its burden, the prosecution was required to put on evidence at trial that Skaer in fact produced non-recyclable waste. Further, by taking judicial notice of a necessary element of the offense for which there was no eviden-tiary support, the court improperly shifted the burden to Skaer to prove his innocence. The burden of proof in a criminal case is on the State to prove a defendant guilty beyond a reasonable doubt. State v. Henton, 753 S.W.2d 19, 20 (MoApp. E.D.1988)

Because it was improper to take judicial notice that a residence which is occupied will necessarily generate some possibly small amount of non-recyclable waste, we find that the prosecution failed to carry its burden to show that Skaer produced waste. Therefore, we reverse.

III. CONCLUSION

The judgment is reversed.

KENNETH M. ROMINES, C.J., and THOMAS J. FRAWLEY, Sp. J., concur.

      . All further references are to the Revised Ordinances of St. Louis County, unless otherwise noted.


author: PER CURIAM:

text:
    Carl STASI, Appellant, v. TRUMAN MEDICAL CENTER, INC. and Karen Gaddis, Respondents.
    No. WD 71473.
    Missouri Court of Appeals, Western District.
    July 6, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.
    Application for Transfer Denied Oct. 26, 2010.
    Seth D. Shumaker, Kirksville, MO, for Appellant.
    Lloyd J. Bandy, Jr., Kansas City, MO, for Respondents.
    Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Carl Stasi appeals from the trial court’s judgment granting Truman Medical Center’s Motion for Summary Judgment and converting Karen Gaddis’s Motion to Dismiss into a motion for summary judgment and granting the same. Stasi filed suit against TMC and Gaddis for their alleged negligence in providing confidential information about his wife, Lisa Stasi, to serial killer John Robinson that led to her murder and the abduction of their child, Tiffany Stasi.

We affirm. Rule 84.16(b). A memorandum setting forth the reasons for this order has been provided to the parties.


author: JAMES M. SMART, JR., Judge.

text:
    STATE of Missouri, Respondent, v. Tommy ROLLINS, Jr., Appellant.
    No. WD 69814.
    Missouri Court of Appeals, Western District.
    July 13, 2010.
    As Modified Aug. 31, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.
    Application for Transfer Denied Oct. 26, 2010.

      S. Kate Webber, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and James B. Farnsworth, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, C.J., JAMES M. SMART, JR., and CYNTHIA L. MARTIN, JJ.
   JAMES M. SMART, JR., Judge.

Tommy Rollins, Jr., was convicted in Jackson County Circuit Court of first-degree assault of a law enforcement officer, armed criminal action, first-degree assault, and unlawful possession of a weapon. On appeal, he seeks a new trial on the ground that the court improperly overruled his objections to the State’s peremptory challenges in the jury selection. He also seeks a new trial on the ground that the court erred in refusing to give the instruction he requested as to abandonment or renunciation of criminal purpose. We affirm the convictions.

Background

In late May 2005, Rollins was angry that he had been discharged from his job as a custodian at an elementary school. Rollins decided he wanted to take revenge on the principal, Dred Scott, by killing Scott at his home. He looked up Scott’s address. He went to the internet and obtained directions to Scott’s house. Rollins purchased a semi-automatic handgun, loaded it, and also put together two firebombs consisting of gasoline in bottles with washcloths for wicks.

At approximately 2:00 a.m. on May 28, 2005, Rollins was en route from his residence in Grandview to Scott’s house in Independence, driving along 1-470 northbound toward the exit for Scott’s house, when his vehicle caught the attention of Missouri State Highway Patrolman Brandon Brashear. Trooper Brashear, noted that Rollins was speeding and decided to stop Rollins’ vehicle for speeding. As Brashear climbed out of his cruiser to walk toward Rollins’ car, Rollins drove away. Brashear got back into his patrol car and pursued Rollins. The chase began near the exit for Woods Chapel Road on 1-470 North. Several miles down the highway, near the Lakewood exit, Rollins pulled to the shoulder and stopped. Brashear again parked behind Rollins. Rollins emerged from his vehicle with the semi-automatic handgun. Brashear, who was exiting from his vehicle and in the process of unholster-ing his gun, yelled at Rollins to drop the weapon, but Rollins immediately commenced firing. Rollins, with his initial actions recorded on video by the police car’s dash camera, advanced toward Brashear, firing his handgun, hitting Brashear, and forcing Brashear to try to seek refuge behind his vehicle. Rollins followed Brashear while firing. He swore at the trooper and yelled, “You’re going to die, you’re going to die.” Brashear fell face first to the ground in the grass off the shoulder. Rollins walked up behind Brashear, as though to finish the execution, fired another shot into Brashear’s back and another shot at Brashear’s head. The shot into the back struck Brashear between the shoulders but missed the spinal column. The other shot struck the trooper’s jaw and lodged in his left cheek. Brashear, still conscious, heard Rollins get back in the car and drive away.

Almost immediately thereafter, an Independence police officer came upon the scene. Brashear was flown by helicopter to a hospital. Emergency personnel concluded Brashear had been hit with at least twelve bullets. Miraculously, Brashear survived. Moreover, though he underwent numerous surgeries and therapeutic procedures, and bears permanent residual effects from the shooting, Brashear was able eventually to return to duty as a state trooper.

Back to Rollins and his actions on the date in question. Following the attack on Brashear, Rollins continued to the area where Mr. Scott lived with his wife and young child. He passed several exits, then exited the highway at Hidden Valley Road and turned right on 31st Terrace. He followed that street to Scott’s subdivision, which he had not previously been in. He found very winding, confusing streets. He drove around the neighborhood in the dark, perhaps without being able to identify Scott’s house. Sometime after entering the subdivision, he left the gun and the firebombs in the weeds in a lot in the subdivision. He said he threw them out of the window of his car. He then drove to a bar near the highway exit. He entered the bar and told the bartender that he had just shot a police officer and wanted to turn himself in.

The police arrived, entered, and arrested Rollins, who was unresponsive to commands and had to be physically restrained and handcuffed. At the police station, Rollins was advised of his rights and interviewed. He said he was angry with Scott for firing him and that he was on his way to “get” Scott. Rollins was also angry that he had been stopped by Trooper Brashear, and he thought the stop was a result of racism. Rollins said he tried to flee from Brashear. When the trooper chased him, Rollins said, he thought the stop might end in a shooting. He said he feared that Brashear would shoot him, and he said to himself, “I’ll give him a reason to shoot me.”

Rollins was charged in Jackson County Circuit Court with first-degree assault on a law enforcement officer under section 565.081, armed criminal action under section 571.015, first-degree assault (as an attempt) under section 565.050, and unlawful possession of an illegal weapon under section 571.020. Rollins entered a plea of not guilty, contending that he was not guilty by reason of mental disease or defect excluding responsibility.

After the trial in 2008, the jury found Rollins guilty on all counts. The jury recommended that Rollins be sentenced to life imprisonment for the first-degree assault of Trooper Brashear, life imprisonment for the associated armed criminal action, fifteen years of imprisonment for the first-degree assault (attempt) as to Scott, and seven years of imprisonment for possession of the firebombs. The court followed the jury’s recommendations in imposing sentence.

Alleged Instructional Error

We first take up Rollins’ second point on appeal, in which Rollins asks for a new trial on the basis that the trial court erred in refusing an instruction to the jury that would have allowed the jury to find, as a defense to the first-degree assault involving Mr. Scott, that Rollins had, after arriving at Scott’s neighborhood, abandoned his criminal purpose to assault Mr. Scott.

Claims of instructional error are reviewed de novo. Manon v. Marcus, 199 S.W.3d 887, 893 (Mo.App.2006). If the instruction is required or authorized by law and is material to the issues to be decided by the jury, and if the evidence supports the giving of the instruction, the trial court must give the instruction. Id. at 892-93 (citing Rule 70.02(a)).

Here, the defendant was charged with violation of section 565.050.1, which provides:

A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.

(Emphasis added.) We see from the statute that the crime of first-degree assault is committed by an “attempt” to kill or to cause serious physical injury (as well as, of course, by the completion of the act causing injury or death). Either way, attempted or completed injury, it is first-degree assault.

Voluntary Abandonment

The instruction Rollins sought was as follows:

As to count 3, if you find and believe from the evidence that the Defendant voluntarily abandoned his plan to assault Dred Scott by throwing the Molotov cocktails and firearm out of the window of his car, then you must find the Defendant not guilty of the first degree assault of Dred Scott as submitted in Instruction No_

The concept of “attempt” in Missouri is governed by section 564.011. State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc 1999). This includes the concept of attempt within the first-degree assault statute (section 565.050.1), as well as attempts to commit other offenses. Id.; see State v. Williams, 126 S.W.3d 377, 381 (Mo. banc 2004). Section 564.011.1 states:

A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A “substantial step” is conduct which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.

This statutory provision, borrowed from the Model Penal Code, became effective January 1, 1979. Withrow, 8 S.W.3d at 79. Prior to that time, Missouri employed the concept of attempt derived from the common law, which recognized abandonment of criminal purpose as a defense. Section 564.011 replaced the former section 556.150, which “contained a tougher test for attempt” in accordance with common law concepts. State v. Molasky, 765 S.W.2d 597, 600 (Mo. banc 1989). The “tougher language” of earlier law had required steps beyond “mere preparation” and required an action going also to “perpetration,” by “doing something bringing him nearer the crime he intends to commit.” Id. Also recognized was the common law doctrine of abandonment as a defense:

There is in every design or plan to commit a crime a place of repentance or locus -penitentiae whereby the one planning to commit it may abandon the idea and thus avoid criminal liability.

State v. Bailey, 383 S.W.2d 731, 734 (Mo.1964) (quoting 15A Am.Jur. Criminal Law, section 333 (1958)). Neither former section 556.150 nor current section 564.011 contains any provision related to the common law concept of abandonment or renunciation. It is theoretically conceivable that the concept could have survived the recodification of the law of attempt in section 564.011, since it was a common law concept. However, Appellant Rollins provides no authority to that effect, and we have been unsuccessful in locating any such authority. The authority we do find seems to be contrary. See, e.g., State v. Boschert, 693 S.W.2d 128, 129 (Mo.App.1985). We note that there is no Missouri Approved Instruction (MAI) as to abandonment of purpose.

In the 1990s, our courts in Missouri began to mistakenly conclude that there were two kinds of attempt offenses in Missouri: common law attempt offenses, and attempt offenses under section 564.011. In Withrow, in 1999, the Supreme Court overruled multiple decisions of the Court of Appeals adhering to the mistaken idea that common law attempt, with its traditional elements and issues (including abandonment as a defense), was still applicable to some criminal offenses. Withrow, 8 S.W.3d at 78-80. The Court held that our intermediate appellate decisions had gone wrong, because we had overlooked the fact that section 556.031 (which sets forth the scope of Missouri’s Criminal Code) specified a rule of construction applicable to all criminal offenses, whether or not defined within the Criminal Code:

[T]he Code governs construction of all criminal offenses whether the offense is defined inside or outside the Code in the absence of a specific exception.

Id. at 79. Accordingly, we now know that section 564.011 (statutorily defined attempt) governs the law of attempt in Missouri as to all offenses, including offenses like first-degree assault under section 565.050.1, that specify that an attempt to kill or seriously injure is to be treated the same, with the same penalty range, as a completed attack. See id. at 79-80.

Some American jurisdictions still recognize the concept of “abandonment of purpose” as a defense to an attempt charge. See H. Morley Swingle, Criminal Attempt Law in Missouri; the Death of a Tale of Two Theories, 56 J.Mo.BaR 144,149 (2000). Under the common law, and in jurisdictions statutorily incorporating the common law, abandonment remains a defense. Id. The burden of establishing such defense is on the defendant. Id. Rollins’ proposed instruction presumably would have been proper (at least in concept) in such jurisdictions. But in Missouri, we assume that abandonment is not a defense to an attempt except in the rare case where the concept is specifically authorized, as in section 564.016 (the conspiracy statute). See, e.g., State v. Gilliam, 618 S.W.2d 733, 734 (Mo.App.1981); Boschert, 693 S.W.2d at 129.

Of course, any effort by the accused to abandon or renounce his criminal purpose before the offense is completed would be pertinent to the determination of “substantial step,” which involves evaluating the actor’s “firmness of purpose.” And logically, once a “substantial step” has been taken, the abandonment of criminal purpose comes too late to avoid liability. Thus, if someone purposing to steal a car breaks into a garage, and then changes his mind, he may still be guilty, not only of burglary, but also of attempted stealing, though he repented of his criminal purpose after breaking into the garage. His change of heart may have come too late to defeat the attempted stealing charge. If indeed we are correct that abandonment is no longer a defense to an attempt charge, that would apparently reflect a legislative determination that any repentance after a “substantial step” should be pertinent to mitigation of punishment, but should not constitute an exemption from conviction of the attempt charge.

Rollins does not argue that the evidence of first-degree assault (by attempting to kill or seriously injure Dred Scott) was insufficient as a matter of law to sustain the conviction. Rollins does not argue that the evidence of his actions that allegedly constituted a “substantial step” were necessarily too remote from the actual execution of the crime as to warrant criminal culpability. Rather, Rollins seeks a new trial on the basis that the jury should have been allowed to decide under appropriate instructions whether Rollins actually abandoned his criminal purpose as to Dred Scott. Rollins thus indirectly contends that abandonment of criminal purpose exists as a defense under the Missouri law of attempt. He reasons that because the issue of abandonment was injected into the ease by facts showing he did not carry out any injury to Dred Scott, Rollins should have been allowed the instruction he requested. We believe the law is to the contrary.

As we have seen from the authorities above, under our attempt statute, the State must show that the defendant engaged in a “substantial step” toward the completion of an offense, which is defined as a step that is “strongly corroborative of the firmness of the actor’s purpose” to complete the offense. See Withrow, 8 S.W.3d at 78, 79-80; section 564.011.1. In order to be “strongly corroborative” of such purpose, an action must logically support the firmness of the actor’s criminal purpose in question. See State ex rel. Verweire v. Moore, 211 S.W.3d 89, 92-93 (Mo. banc 2006). While an act showing a change of direction might raise doubt as to the overall firmness of the actor’s purpose, it is not a defense. Boschert, 693 S.W.2d at 129. It simply is a factor for the jury to consider in determining whether the alleged substantial step was strongly corroborative of the firmness of the actor’s criminal purpose.

A person pointing a gun at someone’s chest or head and uttering a threat, then voluntarily putting the gun away, would be viewed as having made a very powerful threat. Because a person is ordinarily presumed to have intended his voluntary actions, the normal presumption is that the making of the threat, and nothing more, was the actor’s purpose all along. Accordingly, a fact finder in that scenario would find third-degree assault under section 565.070 rather than first-degree assault under 565.050. There is not shown a “firmness of purpose to kill or cause serious bodily injury ” when the normal inference is that the intent was only to make a very palpable threat. See Verweire, 211 5.W.3d at 91-98.

In contrast, however, if circumstances were sufficient to strongly indicate that the defendant had a firmness of purpose to pull the trigger and kill or seriously injure the victim, but the act, for some reason, was not completed, then the defendant could be convicted of first-degree assault or attempted murder. If, for instance, in the circumstances described above, the evidence showed that the defendant stopped short of pulling the trigger only because the police suddenly arrived, or because the gun malfunctioned, then the defendant ordinarily could be convicted of attempted murder.

Rollins relies on the Supreme Court decision in Verweire, supra, contending that he was entitled to an instruction on abandonment. To deal with that, we must properly understand Verweire. In that case, an intoxicated man was engaged in a confrontation with some juveniles at an arcade. Verweire, 211 S.W.3d at 91. The man pulled out a loaded semi-automatic pistol, grabbed one teen, jabbed the pistol in his side and his cheek, and told him in unkind words that he would blow his “head off.” Id. The man then voluntarily put the pistol away, left the arcade, and was arrested shortly thereafter in possession of the loaded pistol. Id. The accused pleaded guilty to committing assault in the first degree “by attempting to cause serious physical injury” to the juvenile. Id. Later, the defendant filed a habeas petition alleging that there was no factual basis for his plea to first-degree assault, because the facts did not demonstrate a “substantial step” toward the commission of the offense of causing serious physical injury or death. The Missouri Supreme Court, on his habe-as petition, held that the petitioner was entitled to relief. See id. at 92-98.

The Court rejected the State’s argument that the threat to blow the teen’s “head off’ was sufficient factual evidence of intent to cause serious physical injury. That rejection by the Court is based in logic. If the facts are consistent with the notion that the purpose of the defendant was only to threaten (and frighten), then it makes sense that the threat itself cannot be “strongly corroborative” of a purpose to do more than threaten. The Court stated that there must be

strongly corroborating evidence that it was the defendant’s conscious objective to carry out the threat. Under the State’s approach, however, every threat with a deadly weapon would constitute a substantial step toward the commission of first degree assault.

Id. at 93.

The accused in Verweire voluntarily, without intervention by others or by circumstances, withdrew from the altercation without having fired or attempted to fire. Id. The Court held that, as a matter of law, there was not in that case a basis to find first-degree assault by attempting to kill or cause serious physical injury. Id. The Supreme Court was unwilling to agree that the acknowledged facts alone, without some evidence showing a “conscious objective” to injure, would be sufficient to allow a factual basis for a guilty plea.

We suggest that the Court was sufficiently concerned about the need to clarify a principle of law that it took the unusual step of granting habeas relief in a guilty plea case. That principle is that not “every threat with a deadly weapon” can be viewed as constituting first-degree assault (some instances might be third-degree assault instead). Id. The message of Ver-weire might be to remind us that a purported “substantial step” cannot be found to be “strongly corroborative of the firmness of the actor’s purpose” unless it tends logically to show that the actor formed a purpose to complete the crime in question.

The appellant’s reliance on Verweire is misplaced in this case. Verweire is not a jury instruction case. Nor is it about abandonment of purpose as a defense to the attempt charge. The voluntary withdrawal of the pistol in that case was not about abandonment; its significance was that it helped shed light on what the defendant’s conscious purpose was at the time he placed the pistol next to the teen’s chest and face.

In other cases involving charged attempts, the circumstances have been such that the actions of the defendant could be viewed by a fact finder as “strongly corroborative of the firmness of the actor’s purpose to carry out the offense.” For example, a man who dragged a woman out of his car and wrestled with her while she fought, screamed, and resisted over a period of twenty to twenty-five minutes, while he was trying to subdue her and to remove her clothes and her underpants, was convicted of attempted rape, even though he eventually abandoned his efforts and drove her home. Boschert, 693 S.W.2d at 128-29.

All of the fact issues for the jury in an attempt case under section 564.011 are wrapped up in that statute and the MAI instruction derived from it. Under current law, Rollins was not entitled to an instruction on the abandonment of his criminal purpose. If the jury was persuaded beyond a reasonable doubt that Rollins formed a firm purpose to kill or hurt Scott and that he took steps accordingly until, after the shooting of the trooper, and after proceeding further toward the goal of injuring or killing Scott, he decided to turn himself in, the authorized jury instructions permitted a finding of guilty. If, instead, however, the jury believed that Rollins was tentative about injuring Scott all along until he abandoned the plan, before he ever got to a “substantial step,” the jury should have acquitted Rollins of first-degree assault as to Scott. The jury here did not acquit Rollins. We assume the jury believed he had a culpable, criminal (first-degree assault) purpose firmly in mind as to Dred Scott until such time as he abandoned the proposed attack. And, as previously mentioned, there is no contention here that the jury could not, on this evidence, convict of an attempt. Point II is denied.

Batson Contentions

In his first point on appeal, Rollins seeks a new trial on the ground that the trial court clearly erred in overruling his challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State’s peremptory strike of venireper-son number 38, an African-American male.

Procedural Background

During the State’s portion of voir dire, the prosecutor asked the venire panel whether any venire member had a friend or relative who had been incarcerated. Venireperson 33 responded that he had. He stated as follows:

VENIREMAN 33: I had an uncle who committed a crime roughly about 23 years ago. I think it was burglary, and I think there was the use of an armed weapon. I should say that he was accused of a crime because I do not believe that he committed it. When I was a youth, I attended every single session in the courtroom and was privy to all the testimony that was given. So I watched it closely.
[PROSECUTOR]: And based on what you’ve said, I would assume you would have a little trouble setting that aside?
VENIREMAN 33: I don’t think that you could draw that conclusion, no. I wouldn’t have a problem setting it aside. I do believe that he was treated unfairly, but that was an isolated event and that is not indicative of the system. That was indicative of the time and individual trying it, yes.
[PROSECUTOR]: Okay, so you feel that he was tried-—
VENIREMAN 33: I believe that there was some questionable antics in the courtroom, and I think that that gave me great concern. But I have seen other cases with other people and have seen similar cases because I used to be fascinated by law. And I haven’t seen them treated in that way. So in retrospect that confirmed that I still hold the same opinion. But that was an isolated case.
[PROSECUTOR]: Now, was your uncle — where was he convicted at?
VENIREMAN 33: I believe it was Jackson County, if I remember correctly. Yes, I believe it was Jackson County-
[PROSECUTOR]: All right. And so you followed it. Was it a trial that he had?
VENIREMAN 33: Yes, that’s correct.
[PROSECUTOR]: And you felt that there was some—
VENIREMAN 33: When you’re a kid— and that was my very first case that I ever was a part of. So I remember pretty much everything because it was bigger than life to me, and it was a relative. There were some statements that rubbed me wrong, and that is where I felt it was not handled properly or I should say professionally.
[PROSECUTOR]: And you thought about — you remember this from 23 years ago, right?
VENIREMAN 33: Oh, absolutely because I felt it was an injustice at that particular time. And from what I learned later, I confirmed that opinion.
[PROSECUTOR]: If I could ask briefly, and I’ll go away, how can you set that aside for this trial?
VENIREMAN 33: Easily. One, because that’s an isolated event. Two, because I think that was indicative of the time. Three, because I also believe that that was a situation that was — I also have to take into account that I was a child and that I may have read into it more than what was actually there. And being I like to think of myself as a rational adult, I wouldn’t want to allow that to color my opinion in any way.

Later, during Rollins’ portion of voir dire, defense counsel asked the venire panel, “Has anybody ever felt discriminated against because of their race?” Venireper-son 33 responded in the affirmative:

VENIREMAN 33: I was traveling to Barnes & Noble in Overland Park, Kansas, and I was driving a vehicle that was older. Earlier that day I was driving a different vehicle. I had to make an additional trip out that way and passed the same police officer, was wearing the same attire, and he did not consider me to be of any concern.
But [when] I was driving a much older vehicle wearing the same attire during approximately two hours’ difference in time, was during the course of the evening, he then found it — my presence interesting and wanted to make a point of making sure that I was where I needed to be and was, therefore, asking all kinds of questions of why was I there, which was basically for the sole purpose of running some errands and .going to the bookstore.
VENIREMAN 33: The vibe I got was that it was profiling, was the vibe that I got.
[DEFENSE COUNSEL]: All right. Were you able to get over that?
VENIREMAN 33: People make mistakes and people are incorrect. Yeah, I was able to get over it. I just chalked it up to an individual.

The State exercised one of its peremptory strikes to remove venireperson 33 from the panel. The defense raised a Batson challenge to the State’s strike and identified venireperson 33 as African-American. The State articulated two reasons for striking venireperson 33:

[PROSECUTOR]: The State’s race-neutral reason, Judge, is that, first of all, he said that he was discriminated against by the police, basically that they singled him out in Overland Park for no injustice [sic].
There are many police officers that are testifying in this case. That is also the defendant’s — one of the reasons the defendant justifies his behavior in this case is that the police discriminated against him.
He also believes that the Jackson County Prosecutor’s Office treated him unfairly and I believe his words were “pulled antics,” and — against his uncle in a trial and that he was basically unjustly accused and unjustly convicted and blames that on the Jackson County Prosecutor’s Office. He claimed he watched that case very, very closely and believes our office was unfairly treating his uncle.

Defense counsel responded as follows:

In regard to the first race-neutral— well, the first reason that the State raises a race-neutral basis for justifying a peremptory strike that would exclude [venireperson 33] from the opportunity to serve as a juror in this case in violation, we submit, of his equal protection rights under the Second [sic] Amendment to the Constitution of the United States and Article I, Section II of the Missouri Constitution is the fact that the man was discriminated against by the police [by] reason of his race.
We respectfully contend that cannot be a race-neutral reason. What the man said about that justifies, I think, to an objective observer the fact that he was — the idea that he was singled out for reason of his race but he accompanied that description of discrimination with comments that indicate that he holds no grudge against the State in this case or the prosecutors in this case for reason of what one officer did in Overland Park, Kansas.
As to the second reason that the State raises to justify the exclusion of [venire-person 33] from jury service in this case is this reference to his impression 23 years ago that things didn’t go right in a trial and an innocent man got convicted.
He also talked about his qualifications on that opinion, including the fact that he was young at the time and he may have been misreading things. Those antics may not have been something improper. But also the fact that he talked about watching other cases in which he saw no injustice and thought that the one case he saw was an isolated incident.
I didn’t hear him say that he held it against the prosecutors of Jackson County because he still retains the idea that that 23-year-old case was one that didn’t do justice.
So, on that basis, I would respectfully aver that we don’t have a sufficient, plausible, convincing race-neutral basis for removing [venireperson 33].

The trial court overruled Rollins’ Batson challenge and permitted the strike. The court explained that it believed “there are race-neutral reasons that the State has stricken No. 33 ... and so the court will allow that peremptory strike to stand.”

Standard of Review

We review a trial court ruling on a Batson challenge for “clear error.” State v. McFadden, 191 S.W.3d 648, 651 (Mo. banc 2006). A finding is clearly erroneous when the reviewing court is left with a definite and firm impression that a mistake has been made. Id. Because the legitimacy of the State’s explanation is a subjective exercise, the court places “great reliance” on the trial court’s judgment. State v. Pointer, 215 S.W.3d 303, 305 (Mo.App.2007) (quoting State v. Morrow, 968 S.W.2d 100, 114 (Mo. banc 1998)). We accord great deference on appeal to the trial court’s decision as to whether the State exhibited discriminatory intent. See Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

The State may not exercise a peremptory challenge to strike a venire-person solely on the basis of the venireper-son’s race. See Batson, 476 U.S. at 84-88, 106 S.Ct. 1712. Missouri courts follow a three-step process when a defendant raises a Batson challenge to a peremptory strike by the State. State v. Parker, 836 S.W.2d 930, 933 (Mo. banc 1992). The first step requires that the defendant raise a Batson challenge. As part of the challenge, the defendant must identify the protected group or class to which the venireperson belongs. Next, the State must articulate a “reasonably specific and clear race- or gender-neutral explanation for the strike.” State v. Clark, 280 S.W.3d 625, 630 (Mo.App.2008). The State’s explanation need not be “persuasive, or even plausible” at that point. Pointer, 215 S.W.3d at 306. At that stage of the inquiry, the issue is the facial validity of the prosecutor’s explanation. See id. Next, assuming that the State’s explanation is facially neutral, the defendant has the burden to show that such explanation was actually pretextual and, in fact, the strike was motivated by purposeful discrimination. Clark, 280 S.W.3d at 630. In considering whether a proffered reason is pretextual, there are at least four factors to be considered. See State v. Strong, 142 S.W.3d 702, 712 (Mo. banc 2004). One factor is the presence of “similarly situated white jurors who were not struck.” Id. The next factor is the “degree of logical relevance between the proffered explanation and the case to be tried.” Id. “The third factor is the prosecutor’s credibility based on his or her demeanor or statements during voir dire and the court’s past experiences with that prosecutor.” Id. A fourth factor is the “demeanor of the excluded venireperson.” Id. Finally, the trial court should consider the “totality of the facts and circumstances surrounding the case.” Id.

Here, the defense satisfied the first step of the process by raising a Batson challenge to the State’s peremptory strike of venireperson 33 and by identifying that person as an African-American male. The State then articulated two reasons for the strike: (1) venireperson 33 said that he had been the victim of racial discrimination by police, and (2) venireperson 33 said that his uncle had been wrongfully convicted twenty-three years earlier by the Jackson County Prosecutor’s Office as a result of a trial that he observed. Both of these reasons are facially race-neutral in that the prosecutor’s stated reasons were not the race of the venire member.

The Race-Neutrality of the Stated Reason

Rollins argues, in contrast to the State’s suggestion that the reasons were facially race-neutral, that venireper-son 33’s past treatment was not “race-neutral.” Rollins argues that it is not race-neutral to exclude venirepersons simply because they have been the victims of racial discrimination. The State responds that the Batson decision does not require that the State’s justification for its action “be unrelated to race,” citing Hernandez v. New York, 500 U.S. 352, 375, 111 S.Ct. 1859, 114 L.Ed.2d 395 (O’Conner, J., concurring). “Batson requires only that the prosecutor’s reason for striking a juror not be the juror’s race.” Id. “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral.” Id. at 360.

Rollins argues that the court was required to take into account the disparate impact of such a supposedly facially race-neutral reason when it means that members of a particular race or ethnicity are more likely to be affected than others. Rollins, however, is attempting to import the concept of disparate impact into the analysis of facial neutrality when disparate impact does not conclusively govern in the preliminary race-neutrality step of the Batson inquiry. See State v. Washington, 288 S.W.3d 312, 316 (Mo.App.2009) (prosecutor’s explanation that the venireperson’s dreadlock hairstyle was too “individualistic” was race-neutral on its face).

In Hernandez, after the prosecutor used four peremptory challenges to strike Latino venirepersons, the defense raised a Batson challenge with respect to two of the strikes. 500 U.S. at 355-56, 111 S.Ct. 1859. Two of the strikes were not challenged because those venirepersons had brothers who had been convicted of crimes. Id. The prosecutor explained that there would be Spanish-speaking witnesses using a translator in the case and that he had struck the venirepersons at issue because he was concerned that they would rely on their own ability to understand the Spanish language rather than the interpreter’s translation. On appeal, the defendant argued that the prosecutor’s explanation was not race-neutral, pointing out the disparate impact that the Spanish language ability will have in relation to the ethnicity of the venire. Id. at 359-60, 111 S.Ct. 1859.

The Supreme Court rejected that argument and affirmed, holding that the prosecutor did offer a race-neutral explanation for the strikes, even though the race-neutral reason in question would obviously have a disparate impact. The court determined it need not address the disparate impact argument because “the prosecutor did not rely on language ability without more, but explained that the specific responses and the demeanor of the two individuals during voir dire caused him to doubt their ability to defer to the official translation of Spanish-language testimony. Id. The court noted that it would be possible to accept the prosecutor’s argument and place Latino venirepersons into two groups: “those whose conduct during voir dire would persuade him that they might have difficulty in accepting the translator’s rendition of Spanish-language testimony and those potential jurors who gave no such reason for doubt.” Id. at 861, 111 S.Ct. 1859.

The defendant argued that any “honest” Latino would have answered the prosecutor's questions about ability to rely on the translation the same way as the challenged venirepersons. Id. at 361-62, 111 S.Ct. 1859. The court stated that, even if it knew a high percentage of bilingual jurors would hesitate in answering questions about relying on a translation (and would, as a consequence, be excluded from the jury), “that fact alone would not cause the criterion to fail the race-neutrality test.” Id. at 361, 111 S.Ct. 1859. “Unless the government actor adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principal of race-neutrality.” Id. The court noted that the trial court’s findings on the issue of discriminatory intent must be given deference because those findings “largely will turn on evaluation of credibility.” Id. at 365, 111 S.Ct. 1859. The court also stated that “[wjhere there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Id. at 370, 111 S.Ct. 1859.

In the present case, the State’s first explanation for striking venireperson 33 was not that the venireperson was African-American, but rather that he had undergone an experience that may have influenced negatively the way he perceives police officers. In Rollins’ case, this is not insignificant, because one of the victims and most of the witnesses were engaged in law enforcement activities. Venirepersons of any ethnicity, language, or race are susceptible to being stricken on the ground that they had experienced discrimination by a police officer. Rollins’ argument that the State’s explanation for striking venire-person 33 was not race-neutral is based strictly on the notion of disparate impact. Disparate impact, however, while pertinent to the inquiry related to pretext, is not determinative of whether the explanation is race-neutral on its face. Hernandez, 500 U.S. at 359-61, 111 S.Ct. 1859.

Rollins also fails to demonstrate a reason to conclude that the prosecutor’s explanation was a mere pretext for discrimination. Rollins goes on to argue that the record shows that this venireperson could set aside his past experiences with police discrimination, based on the venire-person’s own statements. As the prosecution points out, however, such an observation, while important in the context of dealing with a challenge for cause, is not relevant in determining the propriety of a peremptory strike. 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 Bat-son context where the party seeking to strike the venireperson might have reason to think otherwise. See Clark, 280 S.W.3d at 630.

The totality of the circumstances supports the trial court’s ruling in this case. There is no indication that there were any similarly situated white jurors that were not struck. There is also no evidence that the State asked a question hoping to elicit disqualifying answers from members of a particular racial group. In fact, it was the defense, not the State, that asked the panel during voir dire whether any venireper-sons had felt discriminated against because of their race. Finally, the venireperson’s past experience with racial discrimination was pertinent to the issue of objectivity in the case about to be tried. The anticipated defense of Rollins at trial, to go along with the defense of mental disease or defect, was that Rollins was so frustrated by repeated encounters with racist police officers over the years that he “just snapped” when he was pulled over by the trooper. The prosecutor may reasonably have believed that the venireperson’s previous personal experience with discrimination would have made him unduly sympathetic to Rollins’ defense.

Alleged Pretext

The second reason given by the prosecution related to the fact that the venireperson’s uncle had been unjustly convicted in a criminal trial prosecuted by the Jackson County Prosecutor’s Office twenty-three years earlier. Rollins acknowledges that this was a facially race-neutral explanation for the strike. Rollins, however, contends that this was a pretex-tual reason, because the venireperson said that he could set that experience aside and be fair and impartial. As we indicated above, the venireperson’s statement that she or he can be fair and impartial does not resolve the matter in the context of the final step of a Batson challenge to a peremptory strike. There remain some differences between a peremptory strike and a challenge for cause, and one of those is that the attorney or party is allowed a subjective evaluation of the honesty and accuracy of the statement of the venireper-son. The State’s expression of uneasiness with the venireperson’s declaration may be evaluated by the trial court as to the issue of pretext within the totality of the circumstances and the factors listed above. We fail to see that it was clear error for the trial court to determine in this context that the reason given was not pretextual. See Strong, 142 S.W.3d at 712. The court did not abuse its discretion. This point is also denied.

Conclusion

Because the court had no authority to give an instruction on abandonment of criminal purpose, the trial court did not err in refusing to give the instruction requested. Also, because the court did not clearly err in its rulings as to the State’s peremptory challenges, the judgment of convictions is affirmed.

All concur.

      .The State and the defendant dispute whether he got lost or whether he changed his mind about carrying out the plan to "get” Scott. In his statement to police, he said that he changed his mind about the attack. The next day, when he and the police went back to the subdivision to find the weapons, the defendant reportedly had trouble finding his way around the winding streets in the subdivision.

      . Revised Statutes of Missouri (RSMo), cum. supp.2003. Subsequent statutory references are to RSMo 2000 except where otherwise noted.

      . RSMo, cum. supp.2002.

      . The State did not adopt Model Penal Code (MPC) section 5.01 in its entirety. The text of the entire MPC section appears in State v. Molasky, 765 S.W.2d 597, 600 (Mo. banc 1989). Molasky dealt with a charge of attempted murder brought against a prison inmate. The prisoner had engaged in conversations seeking to solicit a fellow inmate (who was anticipating release) to kill five people. The question in Molasky was whether the conversations in that context were a "substantial step” that would sustain the attempted murder conviction. Id. at 601-03.

      . See, e.g., section 564.016.6, which governs criminal conspiracies and recognizes a defense of renunciation of criminal purpose.

      . Many attempt convictions involve instances in which the course of the defendant’s conduct was altered by the intervention of law enforcement. See, e.g., In re J.R.N., Jr., 687 S.W.2d 655 (Mo.App.1985) (juvenile carrying lug wrench intending to commit assault stopped by police officer); State v. Perkins, 826 S.W.2d 385 (Mo.App.1992) (shoplifter realized he had been spotted, dropped items inside store; held guilty of attempt).

      . Third-degree assault can consist of "recklessly engaging] in conduct which creates a grave risk of death or serious physical injury to another person[.]” Section 565.070.1(4).

      . It is true that there was a dispute at trial about the firmness of Rollins' purpose to hurt or kill Dred Scott. In Rollins’ post-arrest statements to the police and to mental health examiners, he said that even on the highway he was having second thoughts about his plan to hurt Scott and that in the subdivision he "changed his mind” about his plan to hurt Scott. This is not a case in which abandonment or repentance came immediately after the shooting of Trooper Brashear. There were further actions, arguably strongly corroborative of a firmness of purpose to not be deterred from his plan to hurt or kill Scott. After the shooting, Rollins proceeded north according to his original plan and turned into Scott’s subdivision at 2:00 in the morning with explosives and weaponry. The State argued that the unwelcome intervention by the trooper and such matters as the knowledge that he was being sought by police and possibly the difficulty of finding Scott’s house in the dark, all could have changed his plan about Scott after there were "substantial steps.”