                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2004-CT-02143-SCT

ANTHONY TERRELL BOOKER a/k/a ROBERT
BOOKER

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                         05/20/2004
TRIAL JUDGE:                              HON. DALE HARKEY
COURT FROM WHICH APPEALED:                JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   ROSS PARKER SIMONS
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: W. DANIEL HINCHCLIFF
DISTRICT ATTORNEY:                        ANTHONY N. LAWRENCE, III
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 10/23/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    The facts in the case sub judice were aptly summarized by the Mississippi Court of

Appeals, see Booker v. State, 2008 Miss. App. LEXIS 77 at *3-4 (Miss. Ct. App. January

29, 2008), and do not bear repeating. In short, Anthony Terrell Booker was arrested for the

murder of Dorian Johnson and subsequently was indicted for capital murder. On May 17,

2004, Booker was convicted by a jury in the Circuit Court of Jackson County and sentenced

to life imprisonment without the possibility of parole. Booker’s appeal therefrom was
assigned to the Court of Appeals, which affirmed both the conviction and sentence. See id.

at *27. Booker’s “Petition for Writ of Certiorari,” raising only the issue of improper

peremptory strikes by the prosecution pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.

Ct. 1712, 90 L. Ed. 2d 69 (1986),1 was then granted by this Court.

                                           ISSUE

¶2.    This Court will consider:

       (1) Whether the circuit court and Court of Appeals erred in finding the
       prosecution’s peremptory strike of juror Chauncey Thompson to be
       permissible under Batson.

                                        ANALYSIS

¶3.    On Batson determinations, this Court has established that:

       [a] reversal will only occur if the factual findings of the trial judge appear to
       be “clearly erroneous or against the overwhelming weight of the evidence.”
       Tanner [v. State], 764 So. 2d 385, 393 (Miss. 2000) . . . . “On appellate
       review, the trial court’s determinations under Batson . . . are accorded great
       deference because they are based, in a large part, on credibility.” Coleman v.
       State, 697 So. 2d 777, 785 (Miss. 1997) . . . . The term “great deference” has
       been defined in the Batson context as meaning an insulation from appellate
       reversal any trial findings which are not clearly erroneous. Lockett v. State,
       517 So. 2d [1346,] 1349 (Miss. 1987).




       1
        The precise question presented by Booker was “[d]id the trial court and the Court of
Appeals err in failing to rule that the district attorney violated Batson by using false
information and giving pretextual justifications to support the strikes of minority jurors
Chauncey Thompson and Alden Stallworth.” Under Mississippi Rule of Appellate
Procedure 17(h), “[t]he Supreme Court may limit the question on review.” Miss. R. App.
P. 17(h). Finding Booker’s argument regarding juror Alden Stallworth without merit as
discussed by the Court of Appeals, see Booker, 2008 Miss. App. LEXIS 77 at *16-17, no
further discussion is warranted. We limit our analysis to the prosecution’s peremptory strike
of juror Chauncey Thompson. See paragraph 2 infra.

                                              2
Smith v. State, 835 So. 2d 927, 940 (Miss. 2002). Our standard conforms to that recently

enunciated by the United States Supreme Court. “On appeal, a trial court’s ruling on the

issue of discriminatory intent must be sustained unless it is clearly erroneous[2 ].” Snyder v.

Louisiana, 128 S. Ct. 1203, 1207, 170 L. Ed. 2d 175, 185, 2008 U.S. LEXIS 2708 at *21

(2008). See also Hernandez v. New York, 500 U.S. 352, 365, 111 S. Ct. 1859, 114 L. Ed.

2d 395 (1991) (quoting Wainwright v. Witt, 469 U.S. 412, 428, 83 L. Ed. 2d 841, 105 S. Ct.

844 (1985)) (“[d]eference to trial court findings on the issue of discriminatory intent makes

particular sense in this context because . . . evaluation of the prosecutor’s state of mind based

on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’”).             In

Hernandez, the United States Supreme Court added that “in the absence of exceptional

circumstances, we would defer to [the trial court].” Hernandez, 500 U.S. at 366.

¶4.    This Court previously has stated that:

       [t]he Batson doctrine is not concerned with racial, gender, or ethnic balance
       on petit juries, and it does not hold that a party is entitled to a jury composed
       of or including members of [a] cognizable group. Rather, it is concerned
       exclusively with discriminatory[ 3 ] intent[4 ] on the part of the lawyer against
       whose use of his peremptory strikes the objection is interposed.


       2
        As the United States Supreme Court has stated, under the “clearly erroneous”
standard, it “will not reverse a lower court’s finding of fact simply because we would have
decided the case differently.” Easley v. Cromartie, 532 U.S. 234, 242, 121 S. Ct. 1452, 149
L. Ed. 2d 430 (2001) (internal quotation marks omitted). Instead, the reviewing court must
ask “whether, ‘on the entire evidence,’ it is ‘left with the definite and firm conviction that
[a] mistake has been committed.’” Id. (quoting United States v. United States Gypsum Co.,
333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948)) (emphasis added).
       3
      “Discriminatory” is defined as “[d]isplaying or marked by prejudice: biased.”
Webster’s II New College Dictionary 325 (3d ed. 2001).
       4
       “Intent” is defined as “[t]hat which is intended: purpose.” Webster’s II New College
Dictionary at 576.

                                                3
Strickland v. State, 980 So. 2d 908, 915 (Miss. 2008) (quoting Ryals v. State, 794 So. 2d

161, 164 (Miss. 2001)) (emphasis added). See also Snyder, 128 S. Ct. at 1208 (quoting

United States v. Vasquez-Lopez, 22 F. 3d 900, 902 (9th Cir. 1994)) (“the Constitution

forbids striking even a single prospective juror for a discriminatory purpose.”). To satisfy

Batson, “[t]he trial court must . . . determine whether the objecting party has met their burden

to prove there has been purposeful[5 ] discrimination[6 ] in the exercise of peremptory

challenges.” Carter v. State, 799 So. 2d 40, 46 (Miss. 2001) (quoting Stewart v. State, 662

So. 2d 552, 557-58 (Miss. 1995)) (emphasis added). See also Flowers v. State, 947 So. 2d

910, 917 (Miss. 2007) (citing Berry v. State, 802 So. 2d 1033, 1042 (Miss. 2001)) (“[t]he

burden remains on the opponent of the strike to show that the race-neutral explanation given

is merely a pretext[7 ] for racial discrimination”) (emphasis added). Therefore, under Batson,

the pretextual reason proffered by the prosecutor must be intended to disguise purposeful

racial discrimination. See Strickland, 980 So. 2d at 915; Flowers, 947 So. 2d at 917; Carter,




       5
        “Purposeful” is defined as “[h]aving a purpose: intentional.” Webster’s II New
College Dictionary at 900. Additionally, “purpose” is defined as “1. The object toward
which one strives or for which something exists: goal. 2. A desired or intended result or
effect.” Id.
       6
       “Discrimination” is defined as “[a] prejudiced act.” Webster’s II New College
Dictionary at 325.
       7
       “Pretext” is defined as the “[o]stensible reason or motive assigned or assumed as a
color or cover for the real reason or motive; false appearance, pretense.” Black’s Law
Dictionary 1351 (4th ed. 1968) (emphasis added). See also Webster’s II New College
Dictionary at 876 (defining “pretext” as “[o]stensible purpose: excuse.”). By contrast, a
“mistake” is defined as “1. An error: fault. 2. A misconception: misunderstanding.” Id. at
702.

                                               4
799 So. 2d at 46. Stated otherwise, the race-neutral reason proffered by the prosecutor must

be a false cover for an intentional, racially discriminatory purpose.

¶5.     In considering Booker’s Batson challenges at trial, the record clearly establishes the

learned circuit judge’s appreciation of the legal principles involved. Specifically:

        the procedure to follow on a Batson challenge is for the Court to indicate
        whether there seems to be a pattern and whether the movant has established a
        prima facie case for relief under Batson. . . . [T]here were five African-
        American jurors on that particular panel, and . . . of those five, four were
        struck by the State of Mississippi. I think that is sufficient to require the State
        to state for the record and for the Court’s consideration race-neutral reasons for
        the strikes.

Thereafter, Assistant District Attorney Timothy Jones responded, with respect to Thompson,

that:

        [t]he State’s race-neutral reason . . . is that, in checking the names of our
        jurors, we found that he has had a marijuana conviction, a driver’s license
        violation, an insurance violation, a seat belt violation in Pascagoula. He was
        convicted on 2/5/03. And on those bases, especially the marijuana conviction,
        Judge, we didn’t want a convicted marijuana holder on the jury.

Circuit Judge Dale Harkey then concluded, “I find the existence of that prior criminal history

is sufficiently race-neutral to justify a . . . peremptory strike.”

¶6.     Post-conviction, Booker filed a motion for a new trial, asserting that “[t]he trial court

erred in failing to sustain [Booker’s] Batson challenges on five (5) Afro-American potential

jurors who were peremptorily excused by the State.” In support of his motion, an affidavit

of City Court Clerk Rhonda Diehl was presented to the trial judge. That affidavit provides:

        [t]hat on the morning of May 17, 2004, Investigator Scott McIrath, of the
        District Attorney’s Office, Pascagoula, Mississippi called your Affiant and
        made inquiry as to any criminal record that the potential juror, Chauncey D.
        Thompson, may have had with said Police Department; that your Affiant ran
        the name given to her by the Investigator and advised that the potential juror

                                                5
       had been charged with four (4) misdemeanor crimes, they being Simple
       Possession of Marijuana, No Driver’s License, No Liability Insurance and a
       Seat Belt Violation; that your Affiant further advised said Investigator that all
       of these charges had been dismissed by the City for the reason that said
       potential juror was not the person who committed said four alleged
       misdemeanor crimes. Attached hereto is a print-out that was used by said
       Affiant when she furnished said Investigator with the information.

In response, District Attorney Tony Lawrence replied:

       Your Honor, Mr. McIrath, the investigator in my office, has been in law
       enforcement for twenty-something years, looks at every venire list that this
       office gets, and he goes in there and sees if there’s names he recognizes. He’s
       been in the business forever. This was one of them. He called up there . . . [.]
       And the affidavit confirms that the information was given to him that this man
       had been charged with four offenses.

       Now, whether those offenses had been dismissed, we didn’t have at that time.
       He got the first information. So, [defense counsel George Shaddock] is
       providing this other information. The information the State got from Mr.
       McIrath’s calling the police department was read into the record, so Your
       Honor will be able to clearly see exactly what the State knew at that time. But
       it confirms that this man was charged with a crime. Four crimes.

The circuit court, uniquely in a position to observe the demeanor and assess the credibility

of the district attorney’s reply, found “no evident untruths or dishonesty at all involved on

the part of the State of Mississippi.” 8 (Emphasis added). Speaking to defense counsel, the

trial judge added “your subsequent investigation as evidenced by these affidavits that you’ve

submitted as exhibits don’t indicate to me any basis for believing . . . that these were lies told

by the State of Mississippi.”




       8
       Thereby distinguishing this case from Snyder, wherein the United States Supreme
Court found that “[r]ather than making a specific finding on the record concerning Mr.
Brooks’ demeanor, the trial judge simply allowed the challenge without explanation.”
Snyder, 128 S. Ct. at 1209. Nothing in the record renders Circuit Judge Harkey’s judgment
implausible.

                                                6
¶7.    This ruling is entitled to “great deference[,]” see Smith, 835 So. 2d at 940, and ought

not be reversed “simply because we would have decided the case differently.” Easley, 532

U.S. at 242. Rather, this Court must have a “definite and firm conviction that a mistake has

been committed.” Id. (quoting United States Gypsum Co., 333 U.S. at 395). See also

Snyder, 128 S. Ct. at 1207-08 (given the trial court’s “pivotal role in evaluating Batson

claims[,]” the “trial court’s ruling on the issue of discriminatory intent must be sustained

unless it is clearly erroneous.”). How can that requisite “definite and firm conviction” be

reached, given clear evidence to the contrary? To do so requires a presumption of pretext

by the prosecutors, when the evidence reflects, at best, no more than a mistaken belief. For

Batson purposes, the investigator’s motive (real or presumed) is irrelevant, absent proof of

knowledge by the lawyer exercising the peremptory strikes. See Strickland, 980 So. 2d at

915 (quoting Ryals, 794 So. 2d at 164) (Batson “is concerned exclusively with

discriminatory intent on the part of the lawyer against whose use of his peremptory strikes

the objection is interposed.”) (Emphasis added). Nonetheless, in his dissent, Justice Graves

accuses District Attorney Lawrence and/or Assistant District Attorney Jones of making

“blatant” and “deliberate” 9 misrepresentations10 (Graves, J., Dissenting Opinion at paragraph

18) to Circuit Judge Harkey, an obligatory prerequisite under the facts of this specific case,

to reach this conclusion. This omniscient finding is diametrically opposed to the eyewitness

impressions recorded by the trial judge in the record, in fulfilling his pivotal role in



       9
       “Deliberate” is defined as “1a. Thought out or planned in advance: Premeditated.
1b. Said or done intentionally.” Webster’s II New College Dictionary at 298.
       10
            Or “lies,” as referred to by the trial judge. See paragraph 6 supra.

                                                 7
evaluating Batson claims. Not a single witness or document gives this reviewing Court

knowledge of what was conveyed to the prosecutors or special insight into either

prosecutor’s state of mind, demeanor, or credibility. It is clear that the ever-present arbiter

of justice, the trial judge, did not see, sense, hear, or discern these “lies.” There is no

evidentiary basis in the record that the prosecutors knowingly or purposefully offered false

information to the trial court to disguise their real motivation. It is more plausible that the

State’s race-neutral reason was based upon an honest, albeit mistaken, belief.             That

determination is best left in the capable hands of the trial judge. See Snyder, 128 S. Ct. at

1208 (citations omitted) (determination of the demeanor of the attorney exercising the

challenge is “particularly within a trial judge’s province[.]”); Hernandez, 500 U.S. at 365.

¶8.    Moreover, no evidence is present in this record that would justify a “definite and firm

conviction” of purposeful racial discrimination. As the Court of Appeals commented in

dicta, “it is quite apparent that, if district attorney Lawrence had accurate information at the

time of his peremptory strike of Thompson, such factually accurate information was clearly

still sufficient to establish a non-pretextual race-neutral reason for the strike.” Booker, 2008

Miss. App. LEXIS 77 at *16. Specifically, District Attorney Lawrence stated at the hearing

on the motion for new trial that:

       [Thompson] was charged and dismissed, because it wasn’t the right guy.
       That’s the biggest race-neutral reason I’ve ever seen when I’m putting
       someone on a jury. Someone who’s been charged by the police and dismissed
       because it was the wrong guy, I don’t want him thinking on the jury this may
       be the wrong guy, too.




                                               8
However, the proper test is measuring what was known when the Batson decision was first

made, during the jury-selection process, and for purposes of this opinion, the post-trial

reasoning is disregarded.

¶9.    In sum, this Court is not a divine overseer of all things Batson, and assuming such

sovereignty would offend the great deference the law requires to be extended to trial courts.

In the case sub judice, the learned trial judge found “no evident untruths or dishonesty at all

involved on the part of the State of Mississippi.” This finding, the byproduct of the

eyewitness impressions recorded by the trial judge in fulfilling his pivotal role in evaluating

Batson claims, is entitled to “great deference.” Smith, 835 So. 2d at 940. In other cases,

perhaps a cold appellate record could reveal facts from which an appellate court could safely

declare error. But such is not the case here. The record reveals not a single “blatant” and/or

“deliberate” misrepresentation (Graves, J., Dissenting Opinion at paragraph 18), and the trial

judge, acting within his province, see Snyder, 128 S. Ct. at 1208, found the proffered reason

was credible, implicitly determining that the prosecutors’ demeanor did not reveal a

discriminatory intent. We can be assured of this observation, for the record reveals a clear

understanding by both District Attorney Lawrence and Circuit Judge Harkey of their duties

and responsibilities vis-a-vis their oaths of office and the edicts of this Court regarding

Batson. To accept the conclusions of Justice Graves’s dissent, one must surmise that District

Attorney Lawrence and Assistant District Attorney Jones are not only liars, but that they also

acted in an intentional, premeditated, and racially discriminatory manner. Furthermore, one

would also have to surmise that Circuit Judge Harkey either lacks the legal acumen to

recognize a prohibited exercise of challenges occurring before his own eyes and ears; or,

                                              9
worse yet, was complicit in allowing the prohibited exercise. I decline to accept either based

on a concoction of suspicion, guesswork, and speculation (with a dash of conjecture) all

derived from an affidavit asserting what an investigator knew, but revealing nothing as to

what the prosecuting attorneys knew. Such a conclusion requires stacking inference upon

inference, thus miserably failing to satisfy the requisite legal standard that there must be a

“definite and firm conviction that a mistake has been committed.” Easley, 532 U.S. at 242

(quoting United States Gypsum Co., 333 U.S. at 395).

                                      CONCLUSION

¶10.   Based upon the aforementioned analysis, this Court affirms the Court of Appeals’

affirmance of Booker’s conviction and sentence in the Circuit Court of Jackson County.

¶11. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CIRCUIT
COURT OF JACKSON COUNTY ARE AFFIRMED. CONVICTION OF CAPITAL
MURDER AND SENTENCE OF LIFE IMPRISONMENT WITHOUT THE
POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED.

       SMITH, C.J., EASLEY, CARLSON AND LAMAR, JJ., CONCUR. GRAVES,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, P.J.
AND IN PART BY WALLER, P.J. AND DICKINSON, J.         DICKINSON, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER AND
DIAZ, P.JJ. AND IN PART BY GRAVES, J.

       GRAVES, JUSTICE, DISSENTING:




                                             10
¶12.   The majority of this Court chooses to ignore the blatant misrepresentations 11 by a

prosecutor in order to wrongfully remove an African-American from the jury. Because I

would find that the trial court erred in failing to grant Anthony Terrell Booker’s motion for

new trial, I respectfully dissent.

¶13.   On December 30, 2002, Booker, Shawn Davis, Mary Scarbough, and Desmond

Shields were involved in the beating death of Dorian Johnson. Booker, Davis, Scarbough,

and Shields were arrested on January 6, 2003, and charged with Johnson’s death. After a

severance, Booker was tried on May 17, 2004. During voir dire, prosecutors moved to strike

juror Chauncey Thompson, Juror 14, an African-American, on the basis of prior convictions.

The trial court denied Booker’s request for time to investigate the alleged prior convictions.

Booker was convicted of capital murder on May 20, 2004, and sentenced to life

imprisonment without the possibility of parole.

¶14.   Thereafter, Booker filed a motion for new trial. At the hearing on the motion for new

trial, Booker introduced an affidavit from the Pascagoula City Court Clerk that Thompson

had no prior convictions and that she had provided that information to an investigator from

the district attorney’s office prior to the trial. Those facts were uncontroverted. The trial

court denied Booker’s motion for a new trial and Booker appealed. This Court assigned the



       11
          Without reference to any specific conclusions, the majority opinion asserts that “[t]o
accept the conclusions of [this] dissent, one must surmise that District Attorney Lawrence
and Assistant District Attorney Jones are not only liars, but that they also acted in an
intentional, premeditated, and racially discriminatory manner.” However, this opinion never
refers to either prosecutor as a liar, nor does it comment on whether their actions were
premeditated. The majority further attempts to personalize this matter by specifically and
repeatedly identifying the participants. However, the identity of the participants is irrelevant.
It is their conduct which compels the result in this case.

                                               11
case to the Court of Appeals, which affirmed Booker’s conviction. Booker filed a petition

for writ of certiorari, asserting that prosecutors knowingly gave false information to the trial

court as a purportedly race-neutral justification for striking Chauncey Thompson, Juror 14,

an African-American, from Booker’s venire in violation of Batson v. Kentucky, 476 U.S.

79,106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

¶15.   Under Batson, a defendant must establish a prima facie case of purposeful

discrimination as follows:

       To establish such a case, the defendant first must show that he is a member of
       a cognizable racial group . . . and that the prosecutor has exercised peremptory
       challenges to remove from the venire members of the defendant's race. Second,
       the defendant is entitled to rely on the fact, as to which there can be no dispute,
       that peremptory challenges constitute a jury selection practice that permits
       "those to discriminate who are of a mind to discriminate." . . . Finally, the
       defendant must show that these facts and any other relevant circumstances
       raise an inference that the prosecutor used that practice to exclude the
       veniremen from the petit jury on account of their race.

Batson, 476 U.S. at 96 (citations omitted). Once the defendant has established a prima facie

case of discrimination, the burden shifts to the State to provide a race-neutral reason for each

strike. Id. at 97. The trial court then makes a determination of whether the defendant has

established purposeful discrimination. Id. at 98.

¶16.   This Court has held that in reviewing a Batson claim, we will not overrule a circuit

court unless the record indicates the decision was clearly erroneous or contrary to the

overwhelming weight of the evidence. Flowers v. State, 947 So. 2d 910, 917 (Miss. 2007).

       This Court has recognized five indicia of pretext that are relevant when
       analyzing the race-neutral reasons offered by the proponent of a peremptory
       strike, specifically:
               (1) disparate treatment, that is, the presence of unchallenged jurors of
               the opposite race who share the characteristic given as the basis for the

                                               12
              challenge; (2) the failure to voir dire as to the characteristic cited; . . .
              (3) the characteristic cited is unrelated to the facts of the case; (4) lack
              of record support for the stated reason; and (5) group-based traits.

Id.

¶17.   As this Court has found:

               Because racially-motivated jury selection is still prevalent twenty years
       after Batson was handed down and because this case evinces an effort by the
       State to exclude African-Americans from jury service, we agree that it is
       "necessary to reconsider Batson's test and the peremptory challenge system as
       a whole." Miller-El, 125 S. Ct. at 2344 (Breyer, J., concurring). While the
       Batson test was developed to eradicate racially discriminatory practices in
       selecting a jury, prosecuting and defending attorneys alike have manipulated
       Batson to a point that in many instances the voir dire process has devolved
       into "an exercise in finding race neutral reasons to justify racially motivated
       strikes." Howell [v. State], 860 So. 2d at 766 (Graves, J., dissenting). When
       Batson was handed down, Justice Marshall predicted that "[m]erely allowing
       defendants the opportunity to challenge the racially discriminatory use of
       peremptory challenges in individual cases will not end the illegitimate use of
       the peremptory challenge." Batson, 476 U.S. at 105 (Marshall, J., concurring).
       Unfortunately, as this case has shown, Justice Marshall was correct in
       predicting that this problem would not subside. His solution to this problem
       was to ban peremptory challenges outright, a position later advocated by
       Mississippi Supreme Court Justice Michael Sullivan. See Batson, 476 U.S. at
       108 (Marshall, J., concurring) (stating that "only by banning peremptories
       entirely can such discrimination be ended."); Thorson v. State, 653 So. 2d 876,
       896 (Miss. 1994) (Sullivan, J., concurring) (stating that "the proper remedy for
       this type of situation is the complete elimination of peremptory challenges in
       the trial courts of Mississippi.").

Flowers v. State, 947 So. 2d 910, 937 (Miss. 2007).

¶18.   I cannot ignore or condone a prosecutor’s blatant misrepresentation of facts to the

trial court. The prosecutor in this case repeatedly represented to the court that he verified

that juror Chauncey Thompson had multiple convictions. Those representations were false.

He simply could not have “verified” a non-fact. There is an unrebutted affidavit from the

municipal court clerk which clearly indicates that the prosecutor’s office was informed

                                               13
before the trial that juror Thompson had been charged but that those charges were dismissed

because they were against the wrong person. Such a blatant, deliberate and repetitive

misrepresentation by a prosecutor should not be condoned.

¶19.   In offering a purportedly race-neutral reason for striking juror Thompson, the

following exchange occurred:

               BY MR. JONES [Prosecutor]: Judge, the first Batson challenge arises
       with Juror Number 14, Chauncey Thompson. The State’s race-neutral reason,
       Judge, is that, in checking the name of our jurors, we found that he has had a
       marijuana conviction, a driver’s license violation, an insurance violation,
       a seat belt violation in Pascagoula. He was convicted on 2/5/03. And on
       those bases, especially the marijuana conviction, Judge, we didn’t want a
       convicted marijuana holder on our jury.
               BY MR. SHADDOCK (Counsel for Booker): Are you talking about a
       misdemeanor?
               BY MR. LAWRENCE (Prosecutor): Misdemeanor.
               BY THE COURT: A convicted marijuana holder?
               BY MR. JONES: Or a user or . . .
               BY THE COURT: And that information was verified through what
       source?
               BY MR. JONES: Through the Pascagoula City Court.
               BY MR. SHADDOCK: We’d like a copy of it. Judge, he’s a 29-year-
       old black male that works at Sears, Roebuck and Company and has a college
       education, and they want to kick him off. He was born and raised in this
       county.
               BY THE COURT: Well I find that the existence of that prior criminal
       history is sufficiently race-neutral to justify a peremptory challenge, a
       peremptory strike.
               BY MR. SHADDOCK: Judge, I’d like to see it.
               BY THE COURT: If that information is available, Mr. Jones?
               BY MR. JONES: Yes, sir. It’s a matter of record with the
       Pascagoula Municipal Court. His conviction date is February the 5th,
       2003. You can go get it.
               BY MR. SHADDOCK: Well, I mean, I don’t have access to the
       Pascagoula Police Department.
               BY MR. LAWRENCE: We just called, Your Honor. That’s how we
       got it, over the telephone.




                                            14
              BY MR. SHADDOCK: Well, they won’t give me – you know, if we do
       have some privacies left in this country, they won’t give it to me. I don’t
       think. I’ll go try.
              BY MR. JONES: And I assure you we’re not making that up, Judge.
              BY THE COURT: In regard to – I’ve made my rulings. . . .

(Emphasis added). Both the district attorney and the assistant district attorney participated

in this colloquy with the trial court. There were at least five separate declarations by the

prosecutors that the information was accurate. Those declarations are: 1) “[W]e found that

he has had a marijuana conviction. . . .”; 2) “Through the Pascagoula City Court” in response

to the trial court’s question of how the information was verified; 3) “It’s a matter of record

with the Pascagoula Municipal Court. His conviction date is February the 5th, 2003. You

can go get it.”; 4) “We just called, Your Honor. That’s how we got it, over the telephone.”;

and 5) “And I assure you we’re not making that up, Judge.” The prosecution had numerous

opportunities to provide accurate information and failed to do so.

¶20.   Later, Shaddock asked the following: “I would like permission to have about 30

minutes to do a little investigating, if I might, on these Batson challenges.” However, the

State objected to this request, saying an investigation could be done after the trial was

finished. The trial court denied Shaddock’s request and moved forward with the trial. After

the trial, Shaddock raised the issue in his motion for new trial. In support of his motion,

Shaddock offered an affidavit of the Pascagoula City Court Clerk Rhonda Diehl stating:

              That on the morning of May 17, 2004, Investigator Scott McIrath [sic],
       of the District Attorney’s Office, Pascagoula, Mississippi, called your Affiant
       and made inquiry as to any criminal record that the potential juror, Chauncey
       D. Thompson, may have had with said Police Department; that your Affiant
       ran the name given to her by the Investigator and advised that the potential
       juror had been charged with four (4) misdemeanor crimes, they being Simple
       Possession of Marijuana, No Driver’s License, No Liability Insurance and a

                                             15
       Seat Belt Violation; that your Affiant further advised said Investigator that all
       of these charges had been dismissed by the City for the reason that said
       potential juror was not the person who committed said four alleged
       misdemeanor crimes. Attached hereto is a copy of a print-out that was used
       by said Affiant when she furnished said Investigator with the information.

This affidavit is unrebutted.

¶21.   As acknowledged by the majority, the “race-neutral reason proffered by the prosecutor

must be a false cover for an intentional, racially discriminatory purpose.” Surely, these facts

fit that description. In the instant case, we have a prosecutor falsely telling the trial court that

he has confirmed that an African-American juror has multiple convictions, when in fact he

has confirmed no such thing and there are and never were any convictions. Moreover, during

the motion for new trial, the prosecutor had ample opportunity to provide an explanation for

the false statements made about juror Thompson, but merely said:

       Your Honor, Mr. McIlrath, the investigator in my office, has been in law
       enforcement for twenty-something years, looks at every venire list that this
       office gets, and he goes in there and sees if there’s names he recognizes. He’s
       been in the business forever. This was one of them. He called up there. . .
       And the affidavit confirms that the information was given to him that this man
       had been charged with four offenses.
                Now, whether those offenses had been dismissed, we didn’t have at that
       time. He got the first information. . . . The information the State got from Mr.
       McIlrath’s calling the police department was read into the record, so Your
       Honor will be able to clearly see exactly what the State knew at that time. But
       it confirms that this man was charged with a crime. Four crimes.
                And let’s take it a step further. Mr. Shaddock says – and I don’t know
       if this is right, because I was just given the affidavit – that he was charged and
       dismissed, because it wasn’t the right guy. . . .

(Emphasis added).

¶22.   No explanation whatsoever was given by the prosecutor in response to the city clerk’s

affidavit. Any so-called explanation for the misrepresentations offered by the majority are



                                                16
based on speculation and conjecture. Further, the State even contradicted itself in the

explanation as to the information provided by the investigator. During voir dire, the

prosecutor repeatedly referred to Thompson’s convictions and told the trial court that he had

confirmed those convictions and went so far as to refer to Thompson as a “convicted

marijuana holder” and to provide the date of conviction. However, during the hearing on

the motion for new trial, the prosecutor admitted that he was never told of any convictions,

but rather said he was merely told of some charges. Also, this is further rebutted by the

affidavit from the city clerk set out above that she told the investigator the charges had been

dismissed.

¶23.   The majority opinion refers to the evidence contained in the record as a “concoction.”

Assuming arguendo that it is a “concoction,” then it is a “concoction” that is undiluted by any

rebuttal from either the district attorney or the assistant district attorney. There was a full-

blown hearing before the trial court where the challenge against Juror Thompson was

discussed and the prosecution confirmed that what was conveyed to the trial court at trial was

not the information conveyed to either the investigator or conveyed to the prosecutors.

Prosecutors told the trial court during voir dire that Thompson had several convictions, but

later explained they were merely told he had some charges, charges that were brought against

the wrong person and later dismissed. There is not one scintilla of evidence in the record to

support any finding that the prosecutors did not know the truth regarding Thompson.

¶24.   The city clerk’s affidavit is unrebutted, the prosecutors’ misrepresentations are

unexplained and the majority decision is unfair. For these reasons, I would find that the trial




                                              17
court erred in failing to grant Booker’s Motion for New Trial. Further, I would reverse

Booker’s conviction and sentence and remand this case to the trial court for a new trial.

     DIAZ, P.J., JOINS THIS OPINION. WALLER, P.J., AND DICKINSON, J.,
JOIN THIS OPINION IN PART.

       DICKINSON, JUSTICE, DISSENTING:

¶25.   There is no dispute in this case that the trial court found the defense sustained its

burden under Batson v. Kentucky 12 of making a prima facie showing that the State struck an

African-American juror, Chauncey Thompson, because of his race. At that point, the burden

shifted to the State to rebut the prima facie showing of discrimination by offering a race-

neutral reason for striking Thompson. Because the State failed to establish a race-neutral

reason, I cannot join the majority, and I respectfully dissent.

                                               I.

¶26.   Two prosecutors were present on the morning of voir dire. Prosecutor Jones stated

that the race-neutral reason for striking Thompson was that he had a “marijuana conviction.”

The trial judge asked Prosecutor Jones how the information had been verified, and Jones

responded, “through the Pascagoula City Court.” Defense counsel questioned the truth of

the alleged race-neutral reason, and Prosecutor Lawrence stated, “We just called, your

Honor. That’s how we got it, over the telephone.” Still dissatisfied with the State’s assertion

that Thompson had been convicted of a crime, defense counsel requested “thirty minutes to

do a little investigating . . . on these Batson challenges.” Jones objected to the delay, stating




       12
            Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

                                               18
that “any investigation can be done after we finish the trial.” The trial judge denied the

request, and allowed the State to exclude Thompson as a juror.

¶27.   After his client was convicted, defense counsel took Jones up on his invitation to

investigate the matter after trial. In doing so, he discovered not only that Thompson had not

been convicted of a crime, but also that the city court clerk had so informed the State’s

investigator on the morning of trial. The city court clerk signed an affidavit to that effect.

Armed with this information (which many would justifiably view as a smoking gun),

Shaddock filed a post-trial motion for a new trial.

¶28.   At the post-trial hearing, Shaddock provided the following argument:

       The next affidavit . . . is by the City Court Clerk, and it deals with a gentleman
       named Chauncey D. Thompson, who was Number 14 on the jury. If you
       recall, the State said their race-neutral reason was, this guy had been
       convicted, or charged with possession of marijuana in the City Court. And that
       wasn’t quite the truth. And this affidavit so bears that out. It says that on the
       morning of the trial, May 17, 2004, Scott McIlrath calls the City Court Clerk.
       The only person she [sic] asked about is this Black male. She advises him he
       had been charged with four misdemeanors and they had all been dismissed,
       they had the wrong person.

¶29.   Thus, we have the City Court Clerk’s sworn affidavit that the prosecutor’s

representation to the trial court on the morning of voir dire was not true. One would think

the trial court would have demanded an explanation or, at the very least, the prosecutor

would have demanded an opportunity to clear the record and explain what happened. In fact,

what happened was nothing. The prosecutor’s response to the discrepancy was:

       He [the investigator] called up there . . . [ellipsis in original] And the affidavit
       confirms that the information was given to him that this man had been charged
       with four offenses. Now, whether those offenses had been dismissed, we
       didn’t have at that time. He got the first information. So, Mr. Shaddock is
       providing this other information. The information the State got from Mr.


                                               19
       McIlrath’s calling the police department was read into the record, so Your
       Honor will be able to clearly see exactly what the State knew at that time. . .

This response provides no information. But even if the trial court took the prosecutor’s

explanation to mean that the city court clerk was not telling the truth in her affidavit, the

court’s later ruling is not consistent with such a finding. In upholding the State’s peremptory

strike of Thompson, the trial court stated that “the substance of the reasons offered by the

State of Mississippi at the time the challenge was made . . . the substance of those rulings I

find to be substantiated by the affidavits and exhibits that have been introduced here.”

¶30.   In other words, the trial court seemed to be of the opinion that the city court clerk’s

affidavit substantiated what the prosecutors had said on the morning of voir dire. Nothing

could be further from the truth. The affidavit directly, unequivocally, and unquestionably

contradicted the prosecutors’ representations to the trial court.

¶31.   It is not my purpose to determine whether the prosecutors’ misrepresentations were

honest mistakes on the part of the city court clerk, the investigator, or one of the prosecutors.

My guess is there was a miscommunication. Who knows? But my guesswork cannot

substitute for my obligation to apply the law.

                                               II.

¶32.   The theory and logic supporting the United States Supreme Court’s ruling in Batson

is fairly simple. But applying Batson and its progeny to real-life cases has perplexed trial

and appellate judges for two decades, and continues to do so today. The black-letter law of

Batson was recently restated as follows:

       Batson provides a three-step process for a trial court to use in adjudicating a
       claim that a peremptory challenge was based on race: “First, a defendant must

                                               20
       make a prima facie showing that a peremptory challenge has been exercised
       on the basis of race; second, if that showing has been made, the prosecution
       must offer a race-neutral basis for striking the juror in question; and third, in
       light of the parties’ submissions, the trial court must determine whether the
       defendant has shown purposeful discrimination.”

Snyder v. Louisiana, 128 S. Ct. 1203, 1207, 170 L. Ed. 2d 175, 180-181 (2008) (citations

omitted).

¶33.   Although volumes of litigation and appellate discussion have addressed what is

necessary to satisfy the first step, that is, “a prima facie showing that a peremptory challenge

has been exercised on the basis of race,” we do not need to go there today because the trial

judge found the defendant had established a prima facie case, and the State does not

challenge that finding.

¶34.   Given that the defendant made a prima facie showing of racial discrimination, the

prosecutor was required to satisfy the second step, that is, “the prosecution must offer a

race-neutral basis for striking” the juror. This the prosecutor did not do. Thus, because the

State never satisfied Batson’s second step, the inquiry should end. Instead, the majority goes

on to the third step and grants the trial judge the discretion to conclude that, even though the

State had no legitimate race-neutral reason for striking Thompson, the prosecutor had no

intent to discriminate. Because I do not believe Batson provides the trial judge, or us, that

discretion, I respectfully dissent.

     WALLER AND DIAZ, P.JJ., JOIN THIS OPINION. GRAVES, J., JOINS THIS
OPINION IN PART.




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