                      IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2000-CA-01241-SCT

KATHY BURNETT AND PHILLIP BURNETT

v.

DR. LORI FULTON


DATE OF JUDGMENT:                           3/23/2000
TRIAL JUDGE:                                HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED:                  HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                   JOHN F. HAWKINS
                                            STEVEN MARK WANN
ATTORNEYS FOR APPELLEE:                     JIMMY B. WILKINS
                                            MILDRED M. MORRIS
                                            SUSAN LATHAM STEFFEY
NATURE OF THE CASE:                         CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                AFFIRMED - 09/18/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The genesis of the case at bar arises from a suit filed in the Circuit Court of Hinds

County by Kathy and Phillip Burnett against Dr. Lori Fulton alleging medical malpractice. The

jury found for Dr. Fulton. On appeal, the Burnetts raise the issue of improper peremptory

challenges by Dr. Fulton. We affirm the decision of the learned trial judge who found all the

jurors strikes to be race neutral.
                                            FACTS

¶2.    On October 3, 1997, Kathy and Phillip Burnett filed a medical malpractice action

against Dr. Lori Fulton in the Circuit Court of the First Judicial District of Hinds County. A

jury trial began on March 13, 2000. At the conclusion of voir dire, counsel for Dr. Fulton

exercised all four of her peremptory challenges to strike African Americans from the jury

panel. The Burnetts made a Batson challenge, and Dr. Fulton responded appearing to give race

neutral reasons for the strikes.

¶3.    Counsel for Dr. Fulton stated the following reasons, to which counsel for the Burnetts

made no rebuttal:

               As to Juror No. 6, . . . Cavett, she didn’t laugh at any of Mr. Wilkins
       comments. She looked away the entire time he was in voir dire. She frowned
       at several comments he made and several questions he asked her. Her body
       language was inappropriate. She has limited education and we have a
       complicated case.
               Our next challenge was to . . . Ransom who was completely unengaged.
       She looked down during Mr. Wilkins voir dire, did not make any eye contact
       whatsoever with him, and we have excused Ms. Ransom.
               Ms. Myrick is 29 years old. That’s exactly the same age that Ms. Burnett
       was when she began to see Dr. Fulton for a period of approximately four years.
       She is going to relate to that time period in life. She also frowned, refused to
       make eye contact, and appeared to have her eyes closed during part of the voir
       dire.
               Ms. Thigpen absolutely was asleep during the first part of the voir dire.
       She actually paid more attention to Mr. Wilkins than to Mr. Hawkins, but she had
       her eyes closed and at one point totally nodded off and shook when she woke up.
       She was completely inattentive. She also could not remember the results of her
       civil case and was not particularly interested in the judicial process. And, for the
       record, we have accepted a number of African-American Jurors including
       African-American women.




                                                2
¶4.    Dr. Fulton then raised a Batson challenge to the Burnetts’ strikes, and the Burnett’s

counsel articulated race-neutral reasons for having used all strikes against Caucasians. Of the

jurors struck by the Burnetts’ counsel, one knew Dr. Fulton and had worshiped at the same

church, one was an acquaintance of a senior partner in defense counsel’s firm, and one was, Mr.

Barranco, a pharmacist and thus a member of the health care profession who was openly hostile

toward both sides during voir dire. Defense counsel indicated that this strike was not a

surprise. These strikes are not, however, at issue in this appeal.

¶5.    Upon considering the justifications given by both parties, the trial judge made the

following observations with regard to the exercise of the strikes:

       The Court: I’m going to allow all of the challenges to stand. I am troubled by
       some of the reasons that have been given for some of the strikes, and this
       provides me with another opportunity to give my new [definition] of voir dire,
       and I hope that’s not what’s occurring in this case. But more and more and more
       voir dire is an exercise in finding race neutral reasons to justify racially
       motivated strikes. And that’s what I’m seeing more and more and more to the
       point that I’m almost ready to decide that there will be no voir dire other than
       an introduction of the parties and the litigants and we can just bring the jurors
       in and let the lawyers pick what their race is and decide who they want to strike,
       because more and more and more I’m having cases where plaintiff lawyers, no
       matter what a juror says, they’re going to strike all the white people that they can
       strike, and defense lawyers are going to strike all the black people that they can
       strike...So having given my speech again because I’m just tired of seeing it. . .I’m
       letting your strikes stand just as you made them and I’m letting their strikes
       stand just as you made them. Bring in the jury.


¶6.    Although the judge allowed the reasons to stand, he did not make “specific explanation”

on the record. The selected jury returned a verdict in favor of Dr. Fulton. The sole issue on




                                                3
appeal is whether this case must be reversed in light of Dr. Fulton’s peremptory challenges and

the judge’s ruling to let them stand.

                                   STANDARD OF REVIEW

¶7.    A trial court's determinations regardingBatson challenges are afforded great deference

because they are, in large part, based on credibility. McGilberry v. State, 741 So.2d 894, 923

(Miss. 1999) (citing Coleman v. State, 697 So.2d 777, 785 (Miss. 1997)). This deference

given to the trial judge is due because the trial judge is present during voir dire and is in a better

position to measure the prospective jurors’ responses. Venton v. Beckham, 845 So. 2d 676,

679 (Miss. 2003); Smith v. State, 802 So.2d 82, 86 (Miss. 2001); Wells v. State, 698 So.2d

497, 501 (Miss. 1997). Therefore, a trial court's findings are to be given the utmost

consideration on appeal, and this Court will reverse only where the decision is clearly

erroneous or against the overwhelming weight of the evidence. Gary v. State, 760 So.2d 743,

749 (Miss. 2000); Randall v. State, 716 So.2d 584, 587 (Miss. 1998); Collins v. State, 691

So.2d 918, 926 (Miss. 1997). Recently, the United States Supreme Court restated its earlier

plurality holding that

       in the context of direct review, therefore, we have noted that “the trial court’s
       decision on the ultimate question of discriminatory intent represents a finding
       of fact fo the sort accorded great deference on appeal” and will not be
       overturned unless clearly erroneous.

Miller-El v. Cockrell, 537 U.S. 322, __, 123 S.Ct. 1029, 1041, 154 L. Ed. 2d 931 (2003)

(quoting Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 114 L. Ed. 2d 395

(1991)).

                                                  4
                                  LAW AND ANALYSIS

       A.     WHETHER DR. FULTON’S PEREMPTORY STRIKES WERE
              RACE-BASED AND THEREFORE A VIOLATION OF BATSON v.
              KENTUCKY, 476 U.S. 79 (1986)?

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

the proper analysis for a peremptory challenge violation has been set forth by this Court in

numerous cases. See Berry v. State, 728 So.2d 568, 572 (Miss. 1999); Randall, 716 So.2d

at 585; McFarland v. State, 707 So.2d 166, 171-72 (Miss. 1997). We follow the decision

made by the United States Supreme Court in Miller-El, 537 U.S. at __, 123 S.Ct. at 1035,

holding the Batson requirements to be as follows:

       First, a defendant must make a prima facie showing that a peremptory challenge
       has been exercised on the basis of race. 476 U.S., at 96-97, 106 S.Ct. 1712.
       Second, if that showing has been made, the prosecution must offer a race-
       neutral basis for striking the juror in question. Id., at 97-98, 106 S.Ct. 1712.
       Third, in light of the parties' submissions, the trial court must determine
       whether the defendant has shown purposeful discrimination. Id., at 98, 106
       S.Ct. 1712.

(emphasis added).

¶9.    Here, the Burnetts challenged Dr. Fulton's use of all four of her peremptory strikes

against prospective African-American jurors. It is of no consequence whether the Burnetts

established a Batson prima facie case, as the trial court required Dr. Fulton to provide race-

neutral reasons for her challenges. Because Dr. Fulton offered explanations for her

challenges, the elements of whether the Burnetts established a prima facie case and whether




                                              5
Dr. Fulton should be required to give race-neutral reasons for her challenges are immaterial.

Mack v. State, 650 So.2d 1289, 1297 (Miss. 1994) (citing Hernandez, 500 U.S. at 352-54).

¶10.     The striking party is not required to "provide the same degree of justification for a

peremptory challenge as is required for a challenge for cause." Bush v. State, 585 So.2d 1262,

1268 (Miss. 1991). Inattentiveness, demeanor, sleeping during voir dire, lack of eye contact,

educational level and hostility (the reasons cited by Dr. Fulton) have all been held by this Court

to be race neutral reasons in keeping with Batson. Mack, 650 So.2d at 1299; Harper v. State,

635 So.2d 864, 868 (Miss. 1994); Lockett v. State, 517 So.2d 1346, 1356-67 (Miss. 1987).

¶11.     Once the striking party has submitted race-neutral reasons for its peremptory

challenges, the opposing party has a chance to rebut the proffered reasons. Gary v. State, 760

So.2d at 743; Chisolm v. State, 529 So.2d 635, 638 (Miss. 1988). The Burnetts did not rebut

the race neutral reasons given by Dr. Fulton. This Court has previously held that a lack of

response to the striking party's race-neutral reasons makes it improper for the Court to reverse

on this point. Davis v. State, 551 So.2d 165, 172 (Miss. 1989). In the instant case, the

Burnetts did not rebut with a specific argument, such as pretext, in order to supplement their

general Batson challenge. Therefore, this argument is waived. Mack, 650 So.2d at 1297. The

Burnetts were not required to rebut, but by offering no other arguments regarding the

peremptory strikes, they forced the trial court to base its decision solely upon the reasons

given by Dr. Fulton. Gary, 760 So. 2d at 743; Johnson v. State, 529 So.2d 577, 584 (Miss.

1988).


                                                6
¶12.   In Hatten v. State, 628 So.2d 294 (Miss. 1993), this Court held that trial court judges

should make on-the-record factual determinations of race-neutral reasons in cases involving

Batson challenges. Id. at 298. In making our decision, we remarked that the trial judge in

Hatten "did not merely accept the specific reasons given by the prosecution at face value, but

considered whether they were contrived." Id. at 299. Hatten does not dictate absolute truth

in the reason tendered. It only asks that there be enough basis in fact to permit the court to

make a reasonable judgment that it is not contrived.

¶13.   Here, Dr. Fulton also challenged the makeup of the jury selection process by

challenging the Burnetts regarding their striking all Caucasians. While it is true that Dr. Fulton

did indeed challenge four African-American jurors peremptorily, it remains also true that Dr.

Fulton accepted a number of African-American jurors including some African-American

women. Thus, the Burnetts have not shown a systematic pattern nor even an isolated striking

of jurors in a racially discriminatory manner.

¶14.   We need first examine the reasons given by Dr. Fulton for striking the jurors in

question. As to juror Cavett, she looked away the entire time defense counsel was in voir dire,

she frowned, used inappropriate body language and, more importantly, as noted by defense

counsel, “she had limited education and we have a complicated case.” Juror Ransom was

completely unengaged during voir dire, showed no sign of actively participating in the process,

and failed to make eye contact. Juror Myrick was 29 years old, the exact same age of plaintiff

Ms. Burnett when she first sought care from Dr. Fulton. Defense counsel was concerned that



                                                 7
“ she is going to relate to that time period in life.” She frowned, refused to make eye

contact and at one point, appeared to have her eyes closed and was sleeping. Juror Thigpen was

absolutely asleep during the first part of voir dire, was inattentive and more importantly, she

“ could not remember the results of a prior civil case in which she had served as a

juror.” Defense counsel was concerned that she was uninterested in the judicial process.

¶15.   This Court must consider the overall context of the reasons given for peremptory

strikes. Every reason cited by Dr. Fulton has been upheld by this Court as being a valid race-

neutral reason for a peremptory challenge to a juror. Woodward v. State, 726 So. 2d 524, 531

(Miss. 1997) (juror seen as hostile to a party); Mack v. State, 650 So. 2d at 1299

(inattentiveness, sleeping, yawns as a race neutral factor); Harper v. State, 635 So. 2d 864,

868 (Miss. 1994) (lack of eye contact); Griffin v State, 607 So. 2d 1197, 1202-03 (Miss.

1992) (juror sleeping); Bolton v. State, 752 So. 2d 480, 483 (Miss. Ct. App. 1999) (citing

Lockett v. State, 517 So. at 1349 (focusing of educational background as a basis for juror

challenge).

¶16.   A trial judge’s decision regarding peremptory challenges is a factual finding and will

not be reversed unless it is clearly erroneous or against the overwhelming weight of the

evidence. McGilberry v. State, 741 So. 2d at 923. As this Court has stated,

       "A circuit judge has wide discretion in determining whether to excuse any
       prospective juror, including one challenged for cause. The circuit judge has an
       absolute duty, however, to see that the jury selected to try any case is fair,
       impartial and competent." Ill. Cent. R.R. v. Hawkins, 830 So.2d 1162, 1176
       (Miss.2002). See also Brown ex rel. Webb v. Blackwood, 697 So.2d 763, 769
       (Miss.1997); Poe v. State, 739 So.2d 405, 409 (Miss.Ct.App.1999) (the trial

                                              8
       court has wide latitude in deciding whether to excuse a potential juror, including
       an exclusion for cause).

Venton v. Beckham, 845 So. 2d at 679. There need only be race-neutral explanations given

for striking a juror. Hernandez, 500 U.S. at 358-59, 111 S.Ct. at 1866. Dr. Fulton

unquestionably gave race-neutral reasons for striking the jurors in issue. Most critical in

considering the case at bar is the fact that the Burnetts did not rebut these reasons in spite of

the fact that they were clearly given that opportunity to do so as required by case law. Gary

v. State, 760 So. 2d at 743; Chisolm v. State, 529 So. 2d at 638. Accordingly, the Court need

analyze only the reasons given by the defendant. Harper v. State, 635 So. 2d at 867. We have

held that when this occurs the issue is waived. Mack v. State, 650 So. 2d at 1297. Finally,

we have also held that it is improper for the Court to reverse on this point when there is a lack

of response to a striking party’s race-neutral reasons. Davis v. State, 551 So. 2d at 172. Here,

the trial judge could only rely on the statements by Dr. Fulton’s counsel. The trial court,

despite some concerns, decided the strikes were allowable. The trial court’s reservations were

obviously based upon both sides striking jurors of their respective races which was most

concerning to the court. However, great deference is accorded to the trial judge in determining

whether the offered explanation is truly a race-neutral reason. Walters v. State, 720 So.2d

856, 865 (Miss. 1998). Here, Judge Graves is to be afforded such great deference after truly

giving this matter his utmost attention. He ultimately determined to allow both sides’ strikes

to stand as based on valid race-neutral reasons. By allowing Dr. Fulton’s peremptory challenges

to stand given the unrebutted racially neutral reasons articulated by Dr. Fulton, the trial court

                                               9
necessarily concluded that the Burnetts failed to prove that Dr. Fulton’s peremptory challenges

were racially discriminatory. The trial judge need only have submitted to the court a basis in

fact so as to permit a reasonable judgment to be made that the reason is not contrived. Hatten

v. State, 628 So. 2d at 299. We will not substitute our judgment for that of the trial judge.

This Court has stated:

       [W]here a trial judge fails to elucidate such a specific explanation for each race
       neutral reason given, we will not remand the case for that Batson-related
       purpose alone. This Court is fully capable of balancing the Batson factors in
       cases such as this one. Continued remand of such cases only wastes the trial
       court’s limited resources and acts to further delay justice.

Gary v. State, 760 So. 2d at 748. The trial judge was not required to state on the record

“specific explanations” for accepting race-neutral reasons for striking a juror. Id. The trial

judge was obviously frustrated by peremptory strikes following along racial lines made by both

parties. However, even in expressing his frustration, Judge Graves impliedly acknowledged

that race-neutral reasons were found (by both sides): “voir dire (has become) an exercise in

finding race-neutral reasons to justify racially motivated strikes.” The trial judge made a

thoughtful, lengthy and sincere effort to properly weigh and examine the reasons offered by

both parties. Although the trial court was troubled by a continuing pattern of strikes along

racial lines, he clearly believed the reasons stated by Dr. Fulton were not contrived. The trial

court’s expression of irritation does not mean that it did not consider the rationales for striking

the potential jury members. In fact, here, just the opposite occurred. We hold that there were

rational race-neutral reasons given by Dr. Fulton and accepted by the trial court for striking



                                                10
each juror. Overturning a case under these circumstances is exactly the waste of judicial

resources that Gary states it is essential and necessary to avoid. The learned trial judge was

not clearly erroneous nor was his decision against the overwhelming weight of the evidence.

In fact, just the opposite is true. We therefore affirm the trial court.

                                        CONCLUSION

¶17.   The main issue is whether Dr. Fulton used her peremptory challenges in a racially

discriminatory manner. Sudduth v. State, 562 So.2d 67, 71 (Miss. 1990). The trial court held

that the strikes cited by Dr. Fulton were not racially motivated but were in fact race neutral and

thus allowable. We agree and affirm the trial court’s judgment.

¶18.   AFFIRMED.

     PITTMAN, C.J., WALLER, COBB AND CARLSON, JJ., CONCUR. EASLEY, J.,
DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS
WITH SEPARATE WRITTEN OPINION.         DIAZ AND GRAVES, JJ., NOT
PARTICIPATING.


       McRAE, PRESIDING JUSTICE, DISSENTING:

¶19.   This case should be remanded for further findings with regard to Dr. Fulton's use of

peremptory strikes since the trial judge did not make specific findings as to the validity or

invalidity of the challenges. Remand is the only proper disposition since the inferences of

racial discrimination have not yet been resolved. For these reasons, I dissent.

¶20.   As the majority has already pointed out, Batson requires that:

       First, the defendant must make a prima facie showing that the prosecutor has
       exercised peremptory challenges on the basis of race . . . . Second, if the
       requisite showing is made, the burden shifts to the prosecutor to articulate a

                                               11
       race-neutral explanation for striking the jurors in question . . . . Finally, the trial
       court must determine whether the defendant has carried his burden of proving
       purposeful discrimination.

Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)

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

Berry v. State, 728 So.2d 568, 572 (Miss. 1999); Randall v. State, 716 So.2d 584, 586-90

(Miss. 1998); McFarland v. State, 707 So.2d 166, 171-72 (Miss. 1997).

¶21.   It is of no consequence that Dr. Fulton offered race-neutral reasons for the peremptory

strikes. Likewise, it is immaterial that the Burnetts failed to rebut the race-neutral reasons

stated by Dr. Fulton. The turning point of the proceedings and the deciding factor which

warrants remand is the trial judge's failure to make a specific finding concerning whether the

strikes were in fact valid and race-neutral.

¶22.   In Hatten v. State, 628 So.2d 294, 298 (Miss. 1993), we held that the trial judge must

make on the record factual determinations of race-neutral reasons in cases involving Batson

challenges. How are we to review the trial judge's findings of fact regarding the proposed race-

neutral reasons when no specific findings are made? Here, the trial judge simply voiced a

"generalized acceptance" of all of the strikes made. The fact that the race-neutral reasons given

by the parties in this case caused the judge to comment on the use of racially motivated strikes

combined with his "generalized acceptance" of all of the strikes leaves the record unclear as

to the actual motivation for his decision.




                                                 12
¶23.   Based on the record, the requirements of Batson have not been fulfilled. Further

proceedings are necessary for the trial court to make specific findings of fact with regard to

the proposed race-neutral reasons offered by Dr. Fulton. For the above stated reasons, I

dissent.




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