                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-KA-01733-SCT

JEREMY DALE DAVIS

v.

STATE OF MISSISSIPPI



DATE OF JUDGMENT:                          06/24/2005
TRIAL JUDGE:                               HON. PAUL S. FUNDERBURK
COURT FROM WHICH APPEALED:                 MONROE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JEREMY DALE DAVIS (PRO SE)
                                           THOMAS M. BRAHAN
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: SCOTT STUART
DISTRICT ATTORNEY:                         JOHN RICHARD YOUNG
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 08/18/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    Jeremy Davis was convicted of aggravated assault on a law-enforcement officer,

escape, burglary of a dwelling, and possession of a firearm by a felon. On appeal, his

attorney filed a brief under Lindsey v. State,1 and this Court ordered additional briefing on




       1
       In Lindsey v. State, this Court set forth various procedures with which an attorney
must comply when he or she represents an indigent criminal defendant and asserts there are
no arguable issues for appellate consideration. Lindsey v. State, 939 So. 2d 743, 748 (Miss.
2005).
the defendant’s Batson 2 challenges. Davis and his attorney each filed briefs in which they

provided only generalized assertions that the State had violated the Equal Protection Clause

by exercising all six of its peremptory strikes against African-American jurors. After

reviewing these briefs and the record, we find no error and uphold the trial court’s denial of

each Batson challenge.

                                            FACTS

¶2.    At trial, Davis asserted that the State had engaged in a pattern and practice of

excluding African-American jurors by using all six of its peremptory strikes to remove

African Americans. In response, the State argued that it had tendered five African-American

jurors, one of whom the defendant had struck, three who were on the petit jury, and one who

was an alternate.3 The trial court found no prima facie showing of discrimination, but it

permitted the State to offer its explanations for the strikes. The court specifically ruled:

       I do not believe that the defense has made a prima facie showing of . . . or
       pattern of the State excluding black jurors. However, if you would like to
       make a record on the ones you did exclude, I will be glad to hear those
       reasons. I will leave that up to you.

After the trial court’s ruling on the prima facie prong, the defendant offered no rebuttal. The

trial court ruled the State had provided race-neutral reasons for the exclusion of the six jurors,

but did not make an on-the-record finding as to each challenge. The trial court provided the

following explanation of its ruling on the Batson challenges:

       Again, the Court finds that the defendant failed to establish a prima facie
       pattern on behalf of the State in excluding black jurors. However, even


       2
           Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
       3
           The record does not show the racial composition of the panels or the petit jury.

                                                2
       assuming a prima facie showing was made by the defendant, the State has
       given racially-neutral reasons for the exclusion – for the exclusion of black
       jurors. A copy of the Juror information Sheet for Juror No. 10, Angelo Jo –
       or rather, Edward Anthony Nickson, Juror No. 10, will be made part of this
       record for the purpose, sole purpose, of this hearing.

                                        DISCUSSION

¶3.    In Batson v. Kentucky, the United States Supreme Court found that the Equal

Protection Clause prohibits a party from exercising peremptory strikes based on race.4 This

protection extends to the striking of even one juror on account of race.5 A Batson challenge

has three steps:

       (1) the defendant must make out a prima facie case by showing that the totality
       of the relevant facts gives rise to an inference of discriminatory purpose; (2)
       once the defendant has made out a prima facie case, the burden shifts to the
       State to explain adequately the racial exclusion by offering permissible, race-
       neutral justifications for the strikes; and (3) if a race-neutral explanation is
       tendered, the trial court must then decide whether the opponent of the strike
       has proved purposeful racial discrimination.6

¶4.    Once the State offers a race-neutral explanation and the trial court rules on the

ultimate question of purposeful discrimination, the question of whether the defendant made

a prima facie showing becomes moot.7 In this case, the trial court ruled on the ultimate

question of purposeful racial discrimination, even though it initially found the defendant had




       4
         Batson, 476 U.S. at 85-86. Batson has been extended to cover other protected
classifications as well as challenges brought by the prosecution. Pitchford v. State, 45 So.
3d 216, 225 n.8 (Miss. 2010).
       5
           Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008).
       6
       Pruitt v. State, 986 So. 2d 940, 942-43 (Miss. 2008) (citing Johnson v. California,
545 U.S. 162, 168, 125 S. Ct. 1240, 2416, 162 L. Ed. 2d 129, 138 (2005)).
       7
           Estate of Jones v. Phillips, 992 So. 2d 1131, 1143 (Miss. 2008).

                                               3
failed to make a prima-facie case of discrimination. We will limit our analysis to the second

and third steps of Batson.

¶5.    Under the second step of Batson, the State must offer a race-neutral reason for the

strike.8 A race-neutral reason does not have to be “persuasive, or even plausible; so long as

the reasons are not inherently discriminatory.” 9 In considering the State’s reasons, the trial

court necessarily must evaluate the prosecutor’s demeanor, as this will be the best evidence

of discriminatory intent.10

¶6.    In response to the race-neutral reason, the defendant “must be given an opportunity

to rebut the reasons offered by the proponent”11 to show the reasons actually are pretextual.

This Court has held the following can be evidence of pretext:

       (1) disparate treatment, that is, the presence of unchallenged jurors of the
       opposite race who share the characteristic given as the basis for the 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.12

If the defendant fails to rebut the proffered reasons, the trial court must base its decision on

the reasons given by the State.13 As the movant, the defendant has the ultimate burden to




       8
           Chamberlin v. State, 989 So. 2d 320, 337 (Miss. 2008).
       9
           Id.
       10
            Snyder, 552 U.S. at 477.
       11
            Estate of Jones, 992 So. 2d at 1144.
       12
            Pruitt, 986 So. 2d at 944.
       13
            Pitchford v. State, 45 So. 3d 216, 227 (Miss. 2010).

                                               4
establish racial discrimination and must ensure that the appellate record supports its

contention of reversible error.14

¶7.    This Court reviews the trial court’s Batson ruling “with great deference” and will not

reverse unless it is “clearly erroneous or against the overwhelming weight of the evidence.” 15

While the trial court should make on-the-record determinations of race-neutral reasons, this

Court will not necessarily reverse and remand for its failure to do so.16 “[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[.]” 17 However, the United States Supreme Court has

held that when a party offers two race-neutral reasons for a peremptory strike, one of which

is based on demeanor, the record must support one of the reasons if the trial court denies the

challenge without making an on-the-record determination.18 Otherwise, the appellate court

is unable to discern whether the trial court credited the demeanor-based reason.19 However,

the Supreme Court subsequently rejected the argument that Snyder requires the trial court




       14
            See Stewart v. State, 662 So. 2d 552, 559 (Miss. 1995).
       15
            Estate of Jones, 992 So. 2d at 1144.
       16
        Burnett v. Fulton, 854 So. 2d 1010, 1016 (Miss. 2003) (quoting Gary v. State, 760
So. 2d 743, 748 (Miss. 2000)).
       17
            Gary, 760 So. 2d at 748.
       18
            Snyder, 552 U.S. at 479, 485.
       19
            Id.

                                               5
to reject a demeanor-based explanation for a peremptory challenge when the court failed to

personally observe or recall the juror’s demeanor.20 It also noted that:

       where the explanation for a peremptory challenge is based on a prospective
       juror’s demeanor, the judge should take into account [“‘all possible
       explanatory factors’” and] any observations of the juror that the judge was able
       to make during the voir dire. But Batson plainly did not go further and hold
       that a demeanor-based explanation must be rejected if the judge did not
       observe or cannot recall the juror’s demeanor.21

¶8.    With these standards in mind, we turn to the State’s arguments before the trial court

in support of its peremptory strikes.

Batson Challenges

Leotis Randle Hubbard

¶9.    The State argued that it had tried to strike Hubbard for cause, since it recently had

prosecuted Hubbard’s granddaughter. The State further argued that, when it had asked the

potential jurors during voir dire whether any family member had been prosecuted by the

State, Hubbard had failed to respond. Hubbard responded in the affirmative only after the

State specifically had questioned Hubbard about her granddaughter’s case. The State argued

that Hubbard had lied by omission by failing to volunteer that her granddaughter recently had

been prosecuted.

Edward Anthony Nickson

¶10.   The State argued that Nickson had failed to fill out his jury questionnaire

appropriately. The trial judge made the questionnaire an exhibit to the record. For name,



       20
            Thayler v. Haynes, 130 S. Ct. 1171, 1174, 175 L. Ed. 2d 1003 (2010).
       21
            Id. (quoting Batson, 476 U.S. at 95).

                                               6
Nickson had listed “Nickson A. Nickson” and had left his birth date blank. He also had

marked “married” but had failed to list his spouse. He had listed his employer’s name as

“Townhouse” but had failed to list his occupation. The State also stated that this juror had

seemed “goofy” and “odd.”

Jacqueline Sharp McMillan

¶11.   The State asserted that a number of law-enforcement officers had helped it pick the

jury, and that the dispatcher of the Aberdeen Police Department was “pretty certain” that

some of McMillan’s family members had been arrested by the Aberdeen police.

Patrick G. Lockett

¶12.   The State argued that Lockett seemed “hostile” and refused to make eye-contact.

Lois Ann Taylor

¶13.   The State asserted that it had not even realized that Taylor was African American, but

it had struck her because an officer had informed it that Taylor’s husband had “pretty severe

problems” and had been arrested a number of times.

Rachel Marie Moore

¶14.   The State argued that it had learned Moore’s brother had been involved in a police

shooting.

Analysis of Batson Challenges

¶15.   While not necessarily dispositive,22 each of the State’s reasons has been upheld by this




       22
        Pruitt, 986 So. 2d at 945 (cautioning that reasons found to be race-neutral in one
case do not automatically render them race-neutral in any other case).

                                              7
Court as being race-neutral.23     However, the trial court failed to make on-the-record

determinations as to each challenge, and the State offered demeanor-based reasons for

striking two jurors, Lockett and Nickson. So we must determine whether the requirements

of Snyder have been violated.

¶16.   While the State offered a demeanor-based reason as one of two explanations for

striking Juror Nickson, the trial judge himself included the incomplete jury questionnaire as

part of the record. Therefore, the record supports the nondemeanor-based, race-neutral

reason for Juror Nickson’s exclusion. Furthermore, the State offered only a demeanor-based

reason for its strike of Juror Lockett, so the trial court must have credited this race-neutral

reason. In accord with Snyder, the record supports the race-neutral reasons offered by the

State for its strike of Jurors Lockett and Nickson.

¶17.   Furthermore, “[t]his Court must consider the overall context of the reasons given for

peremptory strikes.” 24 Davis failed to meet his burden of proof and persuasion before the

trial court and this Court. The record contains no evidence regarding the racial composition

of the jury panels or the petit jury that could help determine whether the State’s reasons were

actually pretextual. And Davis failed to offer any rebuttal to the State’s proffered reasons




       23
        Gary v. State, 760 So. 2d 743, 749 (Miss. 2000) (failure to complete jury
questionnaire and failure to disclose information); Magee v. State, 720 So. 2d 186, 188-89
(Miss. 1998) (family member charged or convicted with a crime); Woodward v. State, 726
So. 2d 524, 531 (Miss. 1997) (demeanor-based reason of hostility); Harper v. State, 635 So.
2d 864, 868 (Miss. 1994) (demeanor-based reason of lack of eye-contact).
       24
            Burnett v. Fulton, 854 So. 2d 1010, 1015 (Miss. 2003).

                                              8
for striking the six jurors. We find nothing in the record which demonstrates that the trial

court erred in accepting the State’s race-neutral reasons for striking each juror.25

                                      CONCLUSION

¶18.   We uphold the trial court’s denial of Davis’s Batson challenges. Its Batson ruling

was not clearly erroneous or against the overwhelming weight of the evidence. Therefore,

Davis’s conviction and sentence are affirmed.

¶19. COUNT I: CONVICTION OF AGGRAVATED ASSAULT ON A POLICE
OFFICER AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AS A HABITUAL OFFENDER,
AND PAYMENT OF A FINE OF $5,000.00, AFFIRMED. COUNT II: CONVICTION
OF ESCAPE AND SENTENCE OF ONE (1) YEAR IN THE CUSTODY OF THE
MONROE COUNTY SHERIFF, AFFIRMED. COUNT III: CONVICTION OF
BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE (25) YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
AND PAYMENT OF A FINE OF $10,000.00, AFFIRMED.           COUNT IV:
CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND
SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $5,000.00,
AFFIRMED. SENTENCES IN COUNTS I, III AND IV SHALL NOT BE REDUCED
OR SUSPENDED AND SHALL BE WITHOUT THE POSSIBILITY OF PAROLE OR
PROBATION. ALL SENTENCES SHALL RUN CONSECUTIVELY.

     WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH AND
PIERCE, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY KITCHENS AND CHANDLER, JJ.

       KING, JUSTICE, DISSENTING:

¶20.   With appropriate respect for the majority, I am compelled to dissent.




       25
        Pitchford v. State, 45 So. 3d 216, 228 n.17 (Miss. 2010) (noting that trial court
reviews totality of circumstances, but this does not include those circumstances, facts, and
arguments that the defendant fails to assert).

                                              9
¶21.   In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the

Supreme Court held that the exercise of peremptory challenges against prospective jurors

based upon race was constitutionally prohibited discrimination and violated a defendant’s

right to a fair trial. Previously, the Supreme Court had held that all qualified persons are

entitled to serve as jurors, and that exclusion from jury service based upon race was a denial

of equal protection. Strauder v. West Virginia, 100 U.S. 303, 10 Otto 303, 25 L. Ed. 664

(1879) (abrogated on other grounds by Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42

L. Ed. 2d 690 (1975)).

¶22.   I believe that these two legal principles are interrelated and of necessity must be

considered together when considering the jury-selection process.

¶23.   A criminal defendant, acting through counsel or acting pro se, has the right to raise

an objection if he believes that the State has engaged in prohibited discrimination in the jury-

selection process. Davis questioned the State’s use of peremptory challenges against Blacks.

The State offered what are described as facially race-neutral reasons for the exercise of its

peremptory challenges. One of the State’s strikes was exercised against an individual who

was said to have inappropriately completed the juror-information card, and who was

described as “goofy” and “odd.” No standard was articulated in the record by which to

measure “goofy” or “odd.” A second strike was used against a prospective juror, Patrick

Lockett, who was described as seemingly hostile and refusing to make eye-contact. The

record contained no articulation of any specific seemingly hostile actions by this person.

Nor, I would note, is there any requirement that a prospective juror make or maintain eye-

contact with counsel.

                                              10
¶24.   Compounding the failure of the prosecution to articulate specific instances of the

complained-of demeanor of prospective jurors is the failure of the trial court to review these

matters independently and make appropriate on-the-record findings. As the Supreme Court

noted in Snyder, “In addition, race-neutral reasons for peremptory challenges often invoke

a juror’s demeanor (e.g. nervousness, inattention) making the trial court’s first-hand

observations of even greater importance. In this situation, the trial court must evaluate not

only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the

juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to

the juror by the prosecutor.” Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1208,

170 L. Ed. 2d 175 (2008).

¶25.   Where the reasons for the strike involve either the demeanor of the attorney or the

prospective juror, this Court cannot make that determination from the cold record. Id. at 479

(stating that “nervousness cannot be shown from a cold transcript”); Gary v. State, 760 So.

2d 743, 758 (¶56) (Banks, P.J., dissenting) (Miss. 2000). Instead, it must rely upon the on-

the-record findings of the trial judge. Where the record contains no such findings, this Court

should either remand for a Batson hearing or reverse for a new trial. Id. (citing Puckett v.

State, 737 So. 2d 322, 337 (¶¶36-38) (Miss. 1999)). The record before this Court contains

no such findings by the trial court.

¶26.   Additionally, the full, stated reason for striking Lockett appears to be contradictory.

The contradictions in the stated reasons for excluding Lockett should have, at the least,

required the trial judge to view them independently and address on the record the question

of pretext. The full statement by the prosecutor was:

                                             11
               Juror No. 18, Patrick G. Lockett, Ms. Emerson related to me upstairs,
       actually, I – when we were in discussions regarding making the first tender to
       Mr. Brahan, Mr. Lockett looked very good on paper, and I liked him just – he
       didn’t respond to any questions during voir dire, but I liked him from his form,
       and when I suggested that we tender him, Ms. Emerson had a concern, I
       believe, because she – essentially what she said was she picked up a bad vibe
       from him. She thought he seemed hostile in the way he was looking at her,
       responding to her, and she was – she attempted during voir dire to make eye
       contact with him. There were times when – and the Court has done voir dire
       a lot more times then anybody else in here has. There are times when you are
       doing voir dire and you essentially try to make contact with some jurors. You
       ask a question, you know, can everyone do that, can you follow the law as the
       judge gives it to you, what have you, and you basically have them nodding,
       and you are attempting to get eye contact. She continually attempted to do so
       with Mr. Lockett and was never able to do so, and that’s essentially what
       turned the wheels the other way in regards to Mr. Lockett. He was going to
       be tendered before . . . essentially before Ms. Emerson related her concerns.

While it is true that, in some cases, this Court can review the cold trial court record and

balance the Batson factors, that is not true in every case, and the prosecutor’s statements

should not be embraced by this Court as an immutable article of faith.

¶27.   By way of example, despite having read the voir dire several times, I have seen

absolutely nothing in that record which validates the supposedly facially race-neutral reasons

for excluding Patrick Lockett. Nothing in the record establishes that Lockett responded to

Emerson in a hostile way. Nothing in the record establishes that Lockett refused to make

eye-contact with Emerson. Nothing in the record establishes that Emerson continually

attempted to make eye-contact with Lockett and he refused.

¶28.   That these matters were not established is made clear by the statement of Emerson’s

co-counsel Joyner, who despite being present in the courtroom and fully participating in the

process, was totally unaware of the occurrence of any of these claimed actions by Lockett.




                                             12
Indeed, Joyner stated that he had desired to have Lockett on the jury until Emerson said that

“she picked up a bad vibe from him.”

¶29.   Where no on-the-record review on the question of pretext is conducted, these types

of reasons, “goofy,” “odd,” “seemed hostile,” and failure to make eye-contact are an open

invitation to engage in discriminatory conduct. Where this Court seemingly, mechanically

approves such action, it places its imprimatur on that invitation to engage in discriminatory

conduct.

¶30.   The defendant, as happens all too often, raised the issue of Batson, but failed to

question in any meaningful manner the supposedly race-neutral reasons offered by the State.

However, the defendant’s failure should not serve as an excuse for the failure of the trial

court to honor its responsibility to ensure that all parties to a judicial proceeding, including

prospective jurors, are treated fairly. Although, as in this case, where the supposedly race-

neutral reasons are matters of demeanor, there is little if any rebuttal that the defendant can

offer. Indeed, in matters of demeanor, the only real issue is whether or not the trial judge

observed the same conduct.

¶31.   To allow the trial court to seemingly pay only lip service to its Batson obligation

denies equal protection to the second party who has been victimized by impermissible

discrimination, that is the prospective juror, who has been wrongfully excluded. Carter v.

Jury Comm’n of Greene County, 396 U.S. 320, 329, 90 S. Ct. 518, 523, 24 L. Ed. 2d 549

(1970) (holding that “[p]eople excluded from juries because of their race are as much

aggrieved as those indicted and tried by juries chosen under a system of racial exclusion”).

The defendant can object to the State’s actions. However, the prospective juror who has

                                              13
been wrongfully discriminated against has no right to object in that proceeding. But even

worse, not being a part of the selection process, he generally will be unaware that the State

discriminated against him. That person’s only line of protection from impermissible

discrimination in the jury-selection process is the watchful eye of the trial judge, seeking to

independently determine whether the proffered reasons are actually a pretext for

impermissible discrimination.

¶32.   When the prima facie requirement is satisfied under Batson, I would, without

exception, mandate an on-the-record review by the trial judge for pretext, without regard to

whether the defendant rebuts the State’s reasons.

¶33.   Where, as in this case, the reasons given are matters of demeanor, which cannot be

observed in the appellate record, and the trial court has failed to make an on-the-record

review for pretext, this Court should reverse and remand for a new trial.

¶34.   Accordingly, I dissent and would reverse and remand.

       KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.




                                              14
