                        IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2001-CT-01153-SCT

WILLIAM LEWIS GASKIN

v.

STATE OF MISSISSIPPI


                                   ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                                5/31/2001
TRIAL JUDGE:                                     HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED:                       JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          ROSS PARKER SIMONS
ATTORNEY FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL BY:
                                                 BILLY L. GORE
DISTRICT ATTORNEY:                               KEITH MILLER
NATURE OF THE CASE:                              CRIMINAL - FELONY
DISPOSITION:                                     AFFIRMED - 03/25/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        EN BANC.

        SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1.     William Lewis Gaskin was indicted for armed robbery, and the matter was set for trial on May 23,

2001. On that day, voir dire was conducted, and the trial judge left the prosecuting and defending

attorneys to seat a jury. When she returned to the courtroom, the trial judge seated the jury, released the

other veniremen and informed the jury that they would not do anything more until after lunch. The jurors

were taken from the courtroom to lunch. The defense counsel then informed the judge that he had a

Batson challenge, Batson v. Kentucky, 476 U.S. 79, 106 S. Ct., 1712, 90 L.Ed.2d 69 (1986). The
trial court informed him that it was a little late to be bringing the challenge, but heard the argument anyway.

She determined that a prima facie case existed for discriminatory strikes and allowed the State to argue its

race-neutral reasons for striking the jurors. However, the trial judge did not find the reasons convincing

and declared a mistrial.

¶2.     The matter was set for trial again on May 29, 2001. At this time another Batson challenge was

raised and this time the State's rebuttal convinced the trial judge and the trial proceeded. Gaskin was found

guilty and sentenced to 25 years. Gaskin appealed, and the case was affirmed by the Court of Appeals.

Gaskin v. State, 856 So. 2d 363 (Miss. Ct. App. 2003). Gaskin then filed his petition for writ of

certiorari which we granted on October 9, 2003. We now affirm.

                                                  FACTS

¶3.     William Lewis Gaskin was arrested following the robbery at knife-point of an Exxon gas station

clerk in Pascagoula, Mississippi. Gaskin was indicted for armed robbery. The matter was scheduled for

trial on May 23, 2001. After voir dire and a ruling on challenges for cause, the trial judge instructed the

attorneys to get together and select a jury. The trial judge then left the courtroom. Upon the trial judge’s

return, the prosecutor stated ten jurors had been agreed upon to that point. After further consultation,

Gaskin's attorney read the names of the agreed upon twelve jurors and one alternate to the court. The

court then stated, "All right. Bring the jury in. Ya'll can put your strikes on the record later."

¶4.     After those selected for the jury were called and seated, the trial judge dismissed the remaining

veniremen and instructed the bailiff to take the selected jurors to lunch. The judge then directed the

attorneys to meet in her office at the end of the lunch period for a conference concerning other matters.

Defense counsel at this time stated: "[A]nd, Judge we will have a Batson challenge at that time." The

judge replied, [W]ell, it's a little late. We've let the jury go." The defense attorney responded that he had

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not had an opportunity to raise this challenge prior to the judge’s dismissing the jury. After hearing the

defendant's challenge, the trial judge found that a prima facie case of purposeful discrimination had been

established and required the State to provide race-neutral reasons for its strikes. The State was given an

opportunity to offer race-neutral reasons for striking the jurors, to which the trial judge responded that she

would consider this issue during lunch. She stated, "[I]f I don't find there to be a race-neutral reason, I'd

have no choice but to declare a mistrial because I can't get the jurors back to pick other jurors. So, I'm

in a precarious situation."

¶5.     Prior to the jury's return from the lunch, the trial judge ruled, "I've considered all of this, the Batson

challenge and discussed it with the attorneys. And in abundance of caution, I'm going to declare a mistrial

and we're going to reset this case for trial on Tuesday, May 28th."

¶6.     At trial on May 28th, Gaskin again raised a Batson objection to the State's exercise of peremptory

challenges against blacks. The trial court found that a prima facie case of discrimination had been shown

and required the State to offer race-neutral reasons for its peremptory challenges. This time the trial court

accepted the State's reasons as being race-neutral and allowed the exercise of the peremptory challenges.

¶7.     Gaskin was found guilty and sentenced to twenty-five years in the custody of the Mississippi

Department of Corrections. The Court of Appeals affirmed Gaskin's conviction. Gaskin then filed his

petition for writ of certiorari in which he argues that because the jury in the first proceeding was empaneled

and sworn, that the second proceeding improperly subjected him to double jeopardy. Gaskin also asserts

that the Court of Appeals erred in affirming the trial court as to the Batson challenge.

                                                 ANALYSIS

¶8.     Gaskin raises two issues:




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        I.      Whether by Ignoring the Order Entered in Gaskin's First Trial--
                which Stated That Gaskin's Jury Was Empaneled and Duly Sworn
                Prior to His Mistrial--the Court of Appeals Changed the Standards
                Set by the Mississippi Supreme Court, and Recognized by the Court
                of Appeals, Itself, Which Has Consistently Held That an Absence in
                the Transcript of the Swearing in of a Jury Is Overcome by an
                Order That Reflects That a Jury Was Duly Sworn.

¶9.     Gaskin argues that because there is an order that recites that the jury was duly sworn and

empaneled, this is sufficient to have put him in jeopardy in the first proceeding, on May 23, 2001. The

jurors were selected and seated, and the trial judge immediately excused them for a lunch break. When

the defense counsel then raised a Batson challenge and the State did not adequately prove race-neutral

reasons for striking the black veniremen, the trial judge declared a mistrial. It is the order granting the

mistrial that recited the jury had been empaneled and duly sworn that is problematic in this issue.

¶10.    On Gaskin's direct appeal, the Court of Appeals found that the order misstated and incorrectly

characterized the events of the first proceeding, specifically as to the juror being administered the oath,

Gaskin, 856 So.2d at 366 citing, Jenkins v. State, 759 So.2d 1229, 1234 (Miss. 2000), where the

transcript indicated one thing and the eventual order declaring a mistrial recited something else. In

Jenkins, this Court found that the order itself misstated the events and that there was no double jeopardy.



¶11.    Gaskin cites Woulard v. State, 832 So.2d 561 (Miss. Ct. App. 2002), asserting that the Court

of Appeals erred in disregarding the fact that the order declaring a mistrial also recited that the jury had

been empaneled and duly sworn. In Woulard, the defendant asserted that the jury had never been

formally administered the formal oath. The Court of Appeals held that even though the transcript did not

indicate that the jury had been duly sworn, there was an order reciting that the jury had been sworn and,

therefore, Woulard did not overcome the presumption that the jury had been formally sworn in prior to the

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trial. Gaskin argues that he should be granted the same presumption that because the order recites that the

jury was sworn, jeopardy attached at the May 21st proceeding.

¶12.    This Court required the trial court to supplement the record on this issue and make factual findings

and respond. The circumstances reflect that the jury was never sworn, therefore jeopardy did not attach

in the first proceeding. In its Factual Finding and Response, the trial court noted that the jury was dismissed

for lunch before administration of the oath or the beginning of any phase of the trial. Subsequently, when

Gaskin raised a Batson challenge and the State failed to demonstrate race-neutral reasons for its strikes,

the trial court had no choice but to declare a mistrial. A form order, erroneously reflecting that the jury had

been sworn, was signed and entered; however, the entire jury selection process from the record clearly

indicates that the seated jury was never administered the oath. Therefore, we hold that because the jury

was not sworn in the first proceeding, Gaskin was not subjected to double jeopardy in the subsequent

proceeding.

¶13.    Furthermore, we are of the opinion that Gaskin failed to timely raise the Batson challenge. The

defense attorney had an affirmative duty to raise the Batson objection during the jury selection process

and prior to the dismissal of the venire. Thomas v. State, 517 So.2d 1285, 1287 (Miss. 1987). This

Court has held that such an objection is timely only where made prior to the impaneling of the jury. Id.

See also Watkins v. State, 262 So.2d 422 (Miss. 1972) (acceptance of a jury precludes later challenge

to its composition); Holloway v. State, 242 So.2d 454 (Miss. 1970) (failure to voice objection prior to

acceptance of a jury waives later challenge); Goldsby v. State, 226 Miss. 1, 86 So.2d 27 (1956)

(challenge to the array should be made at the first opportunity as soon as facts warranting such are known);

Arnold v. State, 171 Miss. 164, 157 So. 247 (1934) (failure to timely raise objection to jury composition



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acts as a waiver); Jackson v. State, 55 Miss. 530 (1878); Gavigan v. State, 55 Miss. 533 (1878).

The Fifth Circuit has also found a Batson objection untimely in a strikingly similar set of facts. In United

States v. Erwin, 793 F.2d 656 (5th Cir. 1986), the defendant moved to strike the jury on the first day

of trial before empanelment, but after the venire had been released. The Fifth Circuit held this objection to

be untimely and unsupported by precedent. The Court in Batson envisioned that a motion to strike would

be made promptly. Here, the facts strongly suggest that had the defense attorney acted with diligence in

raising a timely Batson challenge, the mistrial could have been avoided. There is no merit to this issue.

        II.     Whether the State's Justification for its Strikes of the Four Black
                Female Jurors Defeat Gaskin's Batson Challenge Based on the
                Prosecutor's Use of Strikes in a Pre-textual Manner.

¶14.     In the second proceeding, Gaskin again raised a Batson challenge. The State struck four black

females, citing that two of the four were acquaintances of Monica Cox, who works in the public defender's

office. For the third strike, the State explained that the juror appeared hostile and did not pay attention

during voir dire. Lastly, the State offered that it struck one of the women because she is a college graduate

who is unemployed and that her last name is Pugh and that the District Attorney is currently prosecuting

twelve defendants with the last name Pugh.

¶15.    Gaskin argues that the State's reasons were pretextual. He argues that in both proceedings the

State used its peremptory strikes in a discriminatory pattern. Gaskin points out that there was at least one

other juror (who was not struck) who admitted that he knew the defense attorney personally. However,

the trial court judge, in her findings, pointed out that there was no example of a white juror who knew

Monica Cox. With regard to the third juror, Gaskin argues that there is no record support that she

appeared hostile, did not pay attention during voir dire and failed to respond to any questions. The trial

judge, in her findings, did not indicate whether or not she noticed this juror's demeanor; however, she did

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note that the State's argument seemed reasonable. Gaskin also notes that there were other jurors who also

failed to respond to any question, but were not struck. Finally, Gaskin argues that the State produced no

evidence that the juror Pugh was related to any of the Pughs being prosecuted by the State and that when

asked, Pugh did not respond that she was related to anyone who had been in jail or arrested, etc. Gaskin

also notes that the State failed to voir dire any of these jurors on the specific subjects that it later used as

reasons for striking them.

¶16.    On remand to the trial court for an on-the-record, factual determination of the merits of the reasons

cited by the State, the trial court responded that it did not find the State's reasons pretextual and that

nothing indicated that the State had an underlying discriminatory motive for the strikes.

¶17.    On the issue of Batson challenges and the decisions as to race-neutral reasons, this Court has held:

                  [R]eversal will only occur if the factual findings of the trial judge are "clearly
        erroneous or against the overwhelming weight of the evidence." "On appellate review, the
        trial court's determinations under Batson v. Kentucky are accorded great deference
        because they are based, in a large part, on credibility." The term "great deference" has
        been defined in the Batson context as meaning an insulation from appellate reversal of any
        trial findings which are not clearly erroneous. Caston v. State, 823 So.2d 473, 498
        (Miss.2002).

Minor v. State, 831 So.2d 1116, 1121 (Miss. 2002). The trial court's acceptance of the State's reason

as race-neutral is not clearly erroneous. The State offered employment status, hostile demeanor, friends

or acquaintance of defense team, and that one juror has the same last name as twelve individuals being

prosecuted in Jackson County. The validity of some variations of these reasons have been addressed by

this Court before. See Walker v. State, 671 So.2d 581, 628 (Miss. 1995); Davis v. State, 660 So.2d

1228, 1242 (Miss. 1995).

¶18.    We therefore find that this does not rise to the level of manifest error and that the decision of the

trial court must be affirmed.

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                                            CONCLUSION

¶19.    Although the trial court issued an order reciting that the jury had been empaneled and duly sworn,

the transcript reflects that the jury was not sworn. Therefore, when a mistrial was declared after this point

in the proceedings, Gaskin was not put in jeopardy. Further, because Gaskin failed to make a timely

Batson objection and considering the position in which this trial judge found herself, she did not abuse her

discretion in declaring a mistrial and the action did not preclude Gaskin from being tried in the subsequent

proceedings.

¶20.    Finally, the trial court's acceptance of the State's reason as race-neutral is not clearly erroneous

where the State offered employment status, hostile demeanor, friends or acquaintance of defense team, and

that one juror has the same last name as twelve individuals being prosecuted in Jackson County.

Accordingly, we affirm the judgment of the trial court and the Court of Appeals.

¶21.    AFFIRMED.

     WALLER, P.J., COBB, EASLEY, CARLSON AND DICKINSON, JJ., CONCUR.
PITTMAN, C.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART
WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




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