                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 94-KA-00565-SCT
JAMES LEE COLLINS
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                06/06/94
TRIAL JUDGE:                                     HON. ANDREW CLEVELAND BAKER
COURT FROM WHICH APPEALED:                       TATE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          DAVID L. WALKER
ATTORNEY FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL
                                                 BY: PAT FLYNN
DISTRICT ATTORNEY:                               ROBERT L. WILLIAMS
NATURE OF THE CASE:                              CRIMINAL - FELONY
DISPOSITION:                                     AFFIRMED - 1/30/97
MOTION FOR REHEARING FILED:                      2/10/97
MANDATE ISSUED:                                  5/5/97




     EN BANC.


     SMITH, JUSTICE, FOR THE COURT:


¶1. James Lee Collins was convicted in the Circuit Court of Tate County of capital rape and
sentenced to life in prison. Collins appeals from the jury verdict and argues that as a matter of first
impression before this Court that the trial court erred in not instructing the jury to consider "mistake
of age" as a defense to capital rape nor did the trial court instruct the jury on the offense of statutory
rape. Collins also raises a Batson claim and argues the trial court erred in accepting reasons
articulated by the State. Collins further argues the trial court erred in accepting reasons articulated by
the State in violation of J.E. B. v. Alabama, 511 U.S. 127 (1994). We decline to recognize the
mistake of age defense. We also hold that there is no error in the trial court's acceptance of the State's
articulated reasons for striking certain jurors. Therefore, we affirm Collins' conviction and sentence.

                                     STATEMENT OF FACTS

¶2. On August 7, 1993, LaQuita Sessom received a telephone call from James Lee Collins. LaQuita
testified that Collins requested that she meet him outside her house. Although LaQuita's mother had
instructed LaQuita not to leave the house while her mother was at work, she agreed to meet Collins,
whom she frequently saw while visiting her aunt, Linda Lewis. LaQuita was thirteen years of age.
¶3. LaQuita testified that Collins told her they would ride in his truck and talk. After riding for
approximately one mile, Collins and LaQuita turned into a vacant lot beside the Springfield Church in
Tate County. LaQuita testified that she struggled with Collins initially, however, after being forced
back into Collins' truck, she was raped.

¶4. Collins was twenty-four years of age at the time of the incident. Collins admitted having sexual
relations with LaQuita, however, he consistently maintained that the sexual activity was consensual
and that LaQuita had told him that she was nineteen years old. LaQuita, however, testified that she
told Collins during their first telephone conversation that she was thirteen years old.

¶5. Collins drove LaQuita home after the rape and called her later that night. LaQuita testified that
Collins instructed her to drink vinegar to prevent pregnancy. Although Collins admits to telephoning
LaQuita that night, he denied telling her to drink vinegar. Rather, Collins testified that LaQuita stated
she was scared of getting pregnant, and that if she did become pregnant, she would tell her parents
that Collins raped her.

¶6. On August 8, 1993, the day after the rape, LaQuita told her aunt, Linda Lewis, that she had been
raped by Collins and then phoned her father to explain what had occurred. LaQuita's father, Blount
Sessom testified he accompanied LaQuita to the Sheriff's Department to report the rape. LaQuita
testified that she was scared to tell her mother because she would get into trouble for leaving the
house while her mother was at work.

¶7. Following an investigation, formal charges were filed and Collins was indicted on October 23,
1993 for capital rape, pursuant to Miss. Code Ann. § 97-3-65(1). Collins rejected all plea
negotiations and went to trial on May 4, 1995. Following voir dire, the State and defense exercised
their respective peremptory challenges. The State used two of their peremptory challenges to strike
Juror Number 24, Erma Elaine Wright, and Juror Number 87, Ruth Jackson. Collins raised a Batson
challenge as both potential jurors were black females. The State articulated the following reasons for
the challenges. As to Juror Wright, the State indicated that it was privy to information that Wright
was formerly employed either with law enforcement or the Crime Lab but was terminated following
an incident where Wright was accused of taking "dope" out of the crime laboratory. Assistant District
Attorney Michael Horan stated to the Court that the District Attorney's office may have been
involved in that matter, and that law enforcement was involved. Horan continued, "[b]ut for that bit
of information, she certainly would have been chosen."

¶8. As for Juror Jackson, the State explained that Jackson lived in the community where this crime
took place and that she was related to an individual currently being prosecuted by the District
Attorney's office for two counts of murder. Moreover, Jackson did not reveal this information when
asked during voir dire whether any family members had been prosecuted.

¶9. Collins also raised a gender-based challenge to the exclusion of Juror Smart. Smart revealed
during voir dire that he had been sued by Defense Attorney Walker. However, Smart indicated to the
court that he believed he could be fair and impartial in this case. Mr. Horan stated that Smart was
excluded because he believed, in light of his experience, that "a person put in that position will go
over and above to be fair to show that they're not prejudiced." The State indicated that no challenges
were exercised against several other males and therefore Collins had failed to establish a pattern of
discrimination.

¶10. The trial court upheld the peremptory challenges and proceeded with trial where the jury
returned a guilty verdict for the crime of capital rape. The defense proffered two instructions which
would allow the jury to consider "mistake of age" as a defense. After entertaining argument by the
State and the defense, the trial court refused the instructions. On June 6, 1995, post-trial motions
were denied and Collins was sentenced to life in prison. Collins now appeals his conviction to this
Court.

                                        DISCUSSION OF LAW


     I. WHETHER THE TRIAL COURT ERRED IN DENYING PROPOSED JURY
     INSTRUCTIONS.

¶11. Collins argues that the trial court erred in not instructing the jury on the "mistake of age"
defense. Specifically, Collins assigns as error the trial court's failure to give the following instructions
to the jury:

Instruction D-4

     The Court instructs the jury that if you find from the evidence that James Collins engaged in
     sexual intercourse with Laquita Sesson (sic) who advised him that she was greater than eighteen
     (18) years of age, then you shall find James Collins not guilty of seduction of a child under age
     eighteen.

Instruction D-5

     The Court instructs the jury that if you find from the evidence presented in court that James
     Collins engaged in or committed capital rape upon Laquita Sesson (sic) who advised him that
     she was greater than eighteen (18) years of age, then you shall find James Collins not guilty of
     capital rape of Laquita Sesson (sic).

¶12. This Court's standard of review in reviewing jury instructions is as follows:

     In determining whether error lies in the granting or refusal of various instructions, the
     instructions actually given must be read as a whole. When so read, if the instructions fairly
     announce the law of the case and create no injustice, no reversible error will be found. (citations
     omitted).

Hickombotton v. State, 409 So.2d 1337, 1339 (Miss.1982). In the case at bar, the jury was
substantively instructed as to the offenses of capital rape, Miss. Code Ann. § 97-3-65(1) and
seduction of a child under age eighteen, Miss. Code Ann. § 97-5-21. Collins was convicted of capital
rape.

¶13. Our task is therefore to determine whether the instructions, when read as a whole, accurately set
forth the applicable law. While Collins does not object to the instructions actually given by the court,
his complaint lies with the refusal of the trial court to instruct the jury as to the "mistake of age"
defense. Collins argues that this defense is a modern trend recognized by at least seventeen states as
well as a view adopted by the Model Penal Code, §§ 213.1, 213.6(1). Collins admits that those states
which recognize this defense do so pursuant to the crime of statutory rape. However, Collins argues
that this Court should recognize mistake of age as a defense to both statutory and capital rape.

¶14. This is an issue of first impression before this Court. Further complicating the issue is the sparse
legislative intent to supplement the relevant statutory provisions, §§ 97-3-65, 97-3-67, 97-5-21.
However, prior decisions by this Court, case law from sister states and legal commentary aid in our
analysis.

¶15. A review of both the capital and statutory rape statutes reveals that age is a critical element of
each crime. "Crimes such as statutory rape and sexual assault, in the instant case are defined by the
ages of the persons involved." Washington v. State, 645 So.2d 915, 919 (Miss.1994). "The age of
the victim makes or breaks the conviction." Id. This Court recently held that the age of the accused
was "a sine qua non of the crime of capital rape requiring proof by the state at trial." Fisher v. State,
1996 WL 502125 (Miss.1996).

¶16. The difference between statutory and capital rape in Mississippi is first one of age. Capital rape
requires rape of a child under age fourteen. If the perpetrator is over the age of eighteen, a sentence
of death or life imprisonment may be imposed. However, if the perpetrator is between the ages of
thirteen and eighteen years, the court in its discretion may determine an appropriate sentence.
However, statutory rape requires carnal knowledge of an unmarried person of previously chaste
character younger than himself or herself and over fourteen and under eighteen years of age.

¶17. Thus, while age serves as a line of demarcation for purposes of the potential penalty for capital
rape, age is the defining characteristic of statutory rape, be it forcible or not. See Lewis v. State, 184
So. 53, 183 Miss. 192 (1938). The legislative intent of § 97-3-67 is contained in General Laws of
Mississippi, 1914, ch. 171, House Bill No. 76 wherein the legislature stated "An Act to fix the age of
consent at eighteen years." The clear intent underlying the crime of statutory rape is that females
under age eighteen are legally unable to consent to sexual relations with another. Intent or mistake as
to the age of the child are irrelevant.

¶18. Historically, there have been two basic rationales for statutory rape laws. The first rationale is
the need for strict accountability to protect young girls. The second rationale is the premise that the
defendant's intent to commit statutory rape can be derived from his intent to commit the morally or
legally wrongful act of fornication. 6 Am. Jur. 2d Proof of Facts § 2 (1975). Further, "the history of
the offense of statutory rape indicates that from ancient times the law has afforded special protection
to those deemed too young to understand their actions." United States v. Ransom, 942 F.2d 775,
776 (10th Cir. 1991). The weight of authority in this country indicates that statutory rape has
traditionally been viewed as a strict liability offense. Id. (citing 8 A.L.R. 3d 1100 and 1 Wharton's
Crim. Law & Proc. § 321.)

¶19. Despite the fact that statutory rape is historically a strict liability offense, "mistake of age" has
been asserted successfully as a defense in several states (1) and is recognized by the Model Penal
Code when the child is over the age of ten years. The basic premise of this defense is that a
reasonable or good faith mistake as to the age of the victim is a valid defense to statutory rape.

¶20. However, this defense remains the minority view. Far more states have rejected the defense. See
Nelson v. Moriarty, 484 F.2d 1034 (1st Cir. 1973); U.S. v. Random, 942 F.2d 775 (10th Cir.1991),
cert. denied 116 L.Ed.2d 799, 112 S.C.. 897; People v. Green, 514 P.2d 769 (Colo.1973); State v.
Plude, 621 A.2d 1342 (Conn.1993); State v. Sorakrai, 543 So.2d 294 (Fla.1989); Tant v. State, 281
S.E. 2d 357 (Ga.1981); State v. Silva, 491 P.2d 1216 (Haw.1971); State v. Stiffler, 788 P.2d 220
(Idaho 1990); Toliver v. State, 372 N.E.2d 452 (Ind.1978); State v. Tague, 310 N.W. 2d (Iowa
1981); Garnett v. State, 632 A.2d 797 (Md.1993); Commonwealth v. Moore, 269 N.E.2d 636
(Mass.1971); State v. Stokely, 842 S.W.2d 77 (Mo.1992); State v. Campbell, 473 N.W.2d 420
(Neb.1991); Jenkins v. State, 877 P.2d 1063 (Nev.1994); State v. Davis, 229 A.2d 842 (N.H.1967)
rev'd on other grounds, 612 A.2d 923 (N.H.1992) ; State v. Moore, 253 A.2d 579 (N.J. 1969);
Guinyard v. State, 195 S.E.2d 392 (S.C.1973 ); State v. Fulks, 160 N.W.2d 418 (S.D.1968); State
v. Randolph, 528 P.2d 1008 (Wash.1974); Kelley v. State, 187 N.W. 2d 810 (Wis.1971).

¶21. The "mistake of age" defense could hardly co-exist with our statutory rape statute which is
intended to set forth the "age of consent." As a result, children below this age are legally incapable of
consenting to sexual relations. There is simply no indication by our legislature or by this Court that
the defendant's knowledge the child's age is a factor to be considered. Rather, the knowledge or
ignorance of the age of the child is irrelevant. If reasonable mistake were recognized as a defense, the
very purpose of the statute would be frustrated and the deterrent effect considerably diminished.

¶22. However, Collins asks that this Court recognize "mistake of age" as a defense to capital rape (2)
as well. This Court has held that capital rape does not require that the act be "forcefully done against
the will of the child." McBride v. State, 492 So.2d 581, 584 (Miss.1986). Rather, we stated, "[t]he
child was under the age of consent, and it was not material whether the rape was accomplished by
force or violence and against the will of the child." Id. Consent is no defense to the charge. Id.
(citations omitted).

¶23. Thus, the capital rape statute appears to have the same purpose as does statutory rape; the
protection of children of a specified age. In capital rape that age is under fourteen years whereas
statutory rape applies to those children who are between the ages of fourteen and eighteen. At the
heart of these statutes is the core concern that children should not be exploited for sexual purposes
regardless of their "consent". They simply cannot appreciate the significance or the consequences of
their actions.

¶24. Moreover, the capital rape statute is available for those cases which involve forcible rape of
children under age fourteen. In a forcible rape case involving a child under the age of fourteen the
"mistake of age" defense is even less appropriate. In the case at bar, LaQuita's testimony was
unequivocal: Collins forcibly raped her. If we take the victim's story as true, as the jury did, then this
is not merely a case of consensual sex with one partner falling below a prohibited age, but rather the
forcible rape of a child.

¶25. Recognizing the defense of "mistake of age" would at best frustrate the purpose of both
legislative enactments. However, Collins argues that we imply such a defense because it is not
expressly excluded by the legislature. Although not expressly excluded by the legislature, the intent
underlying these statutes is clear.

¶26. Those states which recognize the defendant's mistake as a defense do so in large part because
criminal offenses require the critical element of mens rea or criminal intent. The defendant's mistake is
allowed as a defense to negate this element of the crime. The United States Supreme Court has
addressed the issue of criminal intent and has recognized that the legislature's authority to define an
offense includes the power "to exclude elements of knowledge and diligence from its definition."
Lambert v. California, 355 U.S. 225, 228 (1957). The Court expressly recognized that "sex
offenses, such as rape, in which the victim's actual age was determinative despite the defendant's
reasonable belief that the girl had reached the age of consent are exceptions to the general rule that
criminal statutes require the State to establish intent." Morrissette v. United States, 342 U.S. 246,
251 n.8 (1942) .

¶27. Moreover, overlooked by Collins is that those states which do recognize this defense require the
defendant to prove that his belief was "reasonable" or in "good faith." Collins' proposed instructions
do not require that he reasonably believed or that he possessed a "good faith" belief that LaQuita was
over the age of fourteen years. Rather, the instructions proposed by Collins focus on LaQuita's
actions rather than Collins' state of mind. For example, Instruction D-4 states "if you find from the
evidence. . . with Laquita Sesson (sic) who advised him. . . then you shall find James Collins not
guilty of seduction of a child under age eighteen." (emphasis added). Instruction D-5 likewise
contains the language "who advised him." Thus, the jury would have been instructed that they could
find Collins not guilty of either seduction or capital rape if they merely found that LaQuita advised
Collins that she was greater than (18) years of age. The jury would not have been required to find
that Collins reasonably or in good faith believed LaQuita's statements. The State correctly suggests
that if such instructions were allowed, "an adult could have sex with a child of any age and could not
be found guilty of capital rape if the child lied about her age, no matter how unbelievable that may
be." Therefore, the proposed instructions, were an inaccurate statement of this defense. A trial court
cannot be put in error for refusing to give an instruction that misstates the law. Allman v. State, 571
So. 2d 244, 251 (Miss.1990).

¶28. Moreover, "[o]ur law is well-settled that jury instructions are not given unless there is an
evidentiary basis in the record for such." Fairchild v. State, 459 So.2d 793, 800 (Miss.1984). The
evidentiary basis for such an instruction in the case at bar is at best tenuous. Collins repeatedly claims
that LaQuita told him and that he believed she was nineteen years of age. Despite Collins' testimony
there is no other confirmation that LaQuita represented herself as such. Moreover, additional
evidence presented at trial undermines the reasonableness of his belief. For example, numerous
witnesses testified that Collins had known LaQuita and her mother or had at least seen them at Linda
Lewis' home since LaQuita was a baby. Moreover, it was further shown that Collins lived less than a
mile from LaQuita and her mother for the last four or five years. LaQuita was thirteen years old at
the time of the rape and would have been between the ages of eight and nine when she first began
living in Tate county and when she first met Collins. To now believe that Collins reasonably believed
LaQuita was nineteen years of age is at best doubtful.

¶29. Collins also argues that the trial court erred in failing to instruct the jury on the lesser included
offense of statutory rape. Collins argues that in light of his "mistake of age" defense, a statutory rape
instruction was warranted. Collins' analysis suggests that while a "hypothetical, reasonable jury might
not believe that Collins thought LaQuita was nineteen, a reasonable jury could believe Collins
thought LaQuita Sessum was older than thirteen years of age."

¶30. The criteria for determining whether an offense is a lesser-included offense of a greater offense
is as follows: ". . . the more serious offense must include all the elements of the lesser offense, that is,
it is impossible to commit the greater offense without at the same time committing the lesser included
offense." Hailey v. State, 537 So. 2d 411, 415 (Miss.1988)(citations omitted). Applying this test to
capital and statutory rape does not lead to the conclusion that statutory rape is a lesser included
offense of capital rape. Capital rape requires carnal knowledge by one eighteen (18) years of age or
older of a child under the age of fourteen (14) years. § 97-3-65, Miss. Code Ann. (1972 as
amended). Thus, a necessary element of capital rape is that the victim be under the age of fourteen
years. However, the crime of statutory rape requires that the child be over fourteen but under
eighteen years of age. Therefore, when one commits capital rape one does not necessarily commit the
crime of statutory rape due to the requisite age of the victim.

¶31. "The cases are legion in this Court holding that lesser-included offense instructions must be
warranted by the evidence." Monroe v. State, 515 So.2d 860, 863 (Miss.1987). (citations omitted).
In the case sub judice, the evidence was uncontradicted and clear: LaQuita Sessom was thirteen
years of age at the time of the crime. LaQuita and her mother, testified that LaQuita was born on
March 21, 1980. On or about August 7, 1993, LaQuita would have been thirteen years of age. The
evidence presented at trial simply did not warrant a statutory rape instruction. "[O]nly where the
evidence could only justify a conviction of the principal charge should a lesser included offense
instruction be refused." Fairchild v. State, 459 So. 2d 793, 800 (Miss.1984)(quoting Ruffin v. State,
444 So. 2d 839, 840 (Miss.1984)). Here, the evidence could only justify a conviction of capital rape
or possibly seduction of a child under the age of eighteen. The trial court properly refused the
statutory rape instruction.

¶32. Collins' argument that the statutory rape instruction should have been given was conditioned
upon this Court upholding the "mistake of age" defense. At the time of trial, the lower court had
before it the law as it existed at that time. We have repeatedly held that lesser-included instructions
"should not be granted indiscriminately, nor on the basis of pure speculation." Doss v. State, 1996
WL 272348 (Miss.1996); McGowan v. State, 541 So. 2d 1027, 1028 (Miss.1989); Mease v. State,
539 So. 2d 1324, 1329 (Miss.1989). To have granted such an instruction based upon the assumption
that this Court may recognize this defense would have been "pure speculation."

     II. WHETHER THE TRIAL COURT ERRED IN DENYING COLLINS' BATSON
     OBJECTION.

¶33. Collins next argues that the State used its peremptory challenges in an unconstitutional manner
to exclude prospective black jurors from the jury in violation of Batson v. Kentucky, 476 U.S. 79,
106 S.C.. 1712, 90 L.Ed.2d 69 (1986). Specifically, Collins complains that the explanations given by
the State were not race-neutral and were effectively rebutted by Collins.

¶34. "Under Batson, a defendant must show that (1) he is a member of a cognizable racial group; (2)
that the prosecutor exercised peremptory challenges to excuse a venire person of the defendant's
race; and (3) that there is an inference that the venire persons were excluded on account of their
race." Mack v. State, 650 So.2d 1289, 1296 (Miss.1994)(quoting Batson, 476 U.S. 79, 96)). "In
sum, these components constitute the prima facie showing of discrimination necessary to compel the
state to come forward with a neutral explanation for challenging black jurors." Lockett v. State, 517
So.2d 1346, 1349 (Miss.1987)(quoting Batson, 476 U.S. at 97)). The burden then shifts to the State
to come forward with a race-neutral explanation for challenging the jurors. Ibid. (quoting Batson,
476 U.S. at 96)). However, the State's explanation is not required to rise to the level of justification
as required for a challenge for cause. Harper v. State, 635 So. 2d 864, 867 (Miss.1994); Benson v.
State, 551 So. 2d 188, 192 (Miss.1989); Wheeler v. State, 536 So. 2d 1347, 1351 (Miss.1988).

¶35. The record reflects that Collins objected to the peremptory challenges exercised against
prospective juror number 24, Ms. Erma Wright and number 87, Ms. Ruth Jackson. During this
objection, defense counsel conceded that the State accepted two black jurors, but noted that all other
prospective jurors are white. Although the trial court did not expressly find that a prima facie case of
discrimination had been made, it then proceeded into the full-fledged analysis and thus required the
State to proffer its reasons for the peremptory strikes.(3)

¶36. The "pivotal inquiry then is whether the State was able to present a race-neutral explanation for
each of the peremptory strikes." Griffin v. State, 607 So. 2d 1197, 1202 (Miss.1992). Determining
whether there lies a racially discriminatory motive under the State's articulated reasons is left to the
sole discretion of the trial judge. Lockett v. State, 517 So. 2d 1346, 1350 (Miss.1987). Moreover, "a
trial judge's factual findings relative to a prosecutor's use of peremptory challenges on minority
persons are to be accorded great deference and will not be reversed unless they appear to be clearly
erroneous or against the overwhelming weight of the evidence." Id. at 1350.

¶37. With regard to Juror Wright, the State indicated that "she had worked either with law
enforcement or at the Crime Lab, I'm not sure, but she's been accused of borrowing some dope out of
the Crime Laboratory and was excused from employment related thereto." After being questioned by
the Court, the State indicated that "law enforcement tells me that she was released because of that."
The State also indicated that because Ms. Wright was a black female "she would be ideal in this case
to serve as a juror."

¶38. At best "borrowing dope" is grounds for termination from employment, at worst it is criminal
activity. Despite the characterization, the State was privy to information that this juror had been
terminated because she "borrow[ed] dope" from her employer. This information was received by the
State from law enforcement, and the State acknowledged that it was unsure whether or not the
district attorney's office was involved in that matter.

¶39. This Court was faced with a similar situation in Johnson v. State, 529 So.2d 577 (Miss.1988).
There, we held, "[t]he State's information from law enforcement as to the possibility of Street's
involvement in criminal activity is not in the record, but again, it does not have to be." Johnson at
584 (citing Lockett, 517 So. 2d at 1352-53).(4) This Court concluded that possible criminal activity
was a race-neutral explanation. In light of Johnson, we also find the State's reasons for excluding
Juror Wright were race-neutral.

¶40. The State exercised its second peremptory challenge to strike Jackson. Following a Batson
objection, the State gave two bases for excluding Jackson. First, the State indicated that Jackson
lived in the neighborhood where this incident took place. Second, the State indicated that Jackson
had not been entirely truthful during voir dire when jurors were asked whether any of their family
members had been prosecuted by the District Attorney's office. The State possessed information that
Jackson was a relative of an individual currently under indictment for two counts of murder and being
prosecuted by the same District Attorney's office.
¶41. In Griffin v. State, 607 So. 2d 1197, 1203 (Miss.1992), this Court held that striking minority
jurors whose family members had been convicted of crimes was race-neutral. Moreover, in Benson v.
State, 551 So.2d 188 (Miss.1989) this Court upheld the prosecutor's explanation that jurors were
struck because the prosecutor believed that one prospective juror was related to someone who had
been tried for a felony by the District Attorney's office. We again hold that the prosecutor's
explanation in the case sub judice was race-neutral and therefore withstands Batson scrutiny.

¶42. Collins, however, insists that he effectively rebutted the explanations provided by the
prosecutor. However, the record only reveals rebuttal by defense counsel as to Ms. Jackson. Defense
counsel rebutted by stating "my rebuttal on that would be, number one, Ms. Jackson did not respond
and, therefore, responded negatively when Mr. Horan asked, Have you or any member of your family
been prosecuted; and number two, he asked the question or the Court asked the question, Has
anyone heard anything about this case, and no one responded."

¶43. The trial court was faced with information which indicated that Jackson failed to respond when
she should have. Moreover, the challenge as to Jackson could have risen to the level of a challenge
for cause although it is not required to do so. "A juror is disqualified within Miss. Code Ann. § 13-5-
67 (Supp.1994) where on voir dire examination he or she has withheld information or misrepresented
material facts." Mack v. State, 650 So.2d 1289, 1300 (Miss.1994)(citing McNeal v. State, 617
So.2d 999, 1003 (Miss.1993)). In Mack, this Court upheld the State's challenge for cause where the
juror failed to reveal during voir dire that her husband had been tried and acquitted during the same
term of court and another indictment was pending. See also Lockett v. State, 517 So. 2d 1346, 1351
(Miss.1987)(juror whose brother was convicted of armed robbery can easily be seen as being
potentially prejudiced against the prosecution).

¶44. Furthermore, Jackson lived in the same community as both the defendant and the victim. This
Court has recognized that living near the defendant was a sufficient race-neutral reason. Johnson v.
State, 529 So.2d 577, 584 (Miss.1988).

¶45. A thorough review of the record reveals that the trial court was not clearly erroneous in finding
that the explanations given by the State were race-neutral, nor was this finding against the
overwhelming weight of the evidence. Therefore, we hold that the trial court properly overruled the
Batson objection raised by Collins.

     III. WHETHER THE TRIAL COURT ERRED IN DENYING COLLINS' GENDER-
     BASED OBJECTION TO PEREMPTORY CHALLENGES BY THE STATE.

¶46. In Duplantis v. State, 644 So. 2d 1235 (Miss.1994), this Court addressed the decision of the
United States Supreme Court in J.E.B. v. Alabama, 511 U.S. 127 (1994). This decision extended
Batson to gender-based exclusion of jurors. In J.E.B. the Court held:

     . . . the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender,
     or on the assumption that an individual will be biased in a particular case for no reason other
     than the fact that the person happens to be a woman or happens to be a man. As with race, the
     core guarantee of equal protection, ensuring citizens that their State will not discriminate. . .,
     would be meaningless were we to approve the exclusion of jurors on the basis of such
     assumptions which arise solely from the jurors [gender].

J.E.B. v. Alabama, 511 U.S. at 146 (1994)(quoting Batson, 476 U.S. at 97-98)). J.E.B., like
Batson, requires one challenging a peremptory strike to make a prima facie showing of intentional
discrimination before the party exercising the challenge is required to explain the basis for the strike.
511 U.S. at 144-145. Again, the reason is not required to rise to the level of a challenge for cause,
rather it merely must be based on a juror characteristic other than gender and the proffered
explanation may not be pretextual." Id.

¶47. Collins objects to the State's challenge of juror Joey Smart, a white male. During voir dire,
Smart indicated that he had been sued by defense counsel. Defense counsel, after objecting to the
State's challenge of Smart, argued that Mr. Horan, the Assistant District Attorney, utilized a pattern
of excluding males from juries. Transcripts of prior cases in which Mr. Horan was the Assistant
District Attorney were introduced and considered by the court. The Court then allowed the State to
give its reasons for challenging Smart. The prosecutor indicated that Smart stated during voir dire
that he had been sued by Mr. Walker. However, Smart stated that he could be fair. The prosecutor
responded "I struck him because Mr. Walker has sued him." The State then clarified for the record
that Jurors No. 1, 5, 25, 35, 110, 120 were males and were not challenged by the State. The jury
ultimately contained six male jurors.

¶48. The prior relationship between defense counsel and Smart is sufficient to withstand a gender-
based challenge. Here, the potential juror knew and had been sued by defense counsel. In Griffin v.
State, 607 So.2d 1197 (Miss.1992), this Court held that the fact that the juror knew defense counsel
was a race-neutral reason for the peremptory challenge.

¶49. The State articulated gender-neutral reasons for the challenge. The fact that Smart had been
involved in prior litigation with the defense attorney is simply not related to his gender.

                                             CONCLUSION

¶50. In light of the legislative intent which underlies Mississippi's statutory and capital rape statutes, it
would be contradictory to recognize "mistake of age" as a defense. We therefore decline to recognize
this defense. As a result, the trial court properly refused to so instruct the jury. Moreover, the trial
court correctly refused to instruct the jury on the offense of statutory rape. In addition, the trial court
did not err in accepting the reasons articulated by the State in support of the exercise of peremptory
strikes.

¶51. CONVICTION OF CAPITAL RAPE AND SENTENCE OF LIFE IN THE CUSTODY
OF MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED.

PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS AND MILLS,
JJ., CONCUR. LEE, C.J., CONCURS IN RESULT ONLY.


1. Alaska, Arizona, California, Kentucky, Illinois, Maine, Minnesota, New Mexico, Ohio,
Pennsylvania, Utah, Washington, West Virginia, Wyoming.

2. Miss. Code Ann. § 97-3-65(1) sets forth the offense of capital rape as follows:
     (1) Every person eighteen (18) years of age or older who shall be convicted of rape by carnally
     and unlawfully knowing a child under the age of fourteen (14) years, upon conviction, shall be
     sentenced to death or imprisonment for life in the State Penitentiary; provided, however, any
     person thirteen (13) years of age or over but under eighteen (18) years of age convicted of such
     crime shall be sentenced to such term of imprisonment as the court, in its discretion, may
     determine. In all cases where the child is under the age of fourteen (14) years it shall not be
     necessary to prove penetration of the child's private parts where it is shown the private parts of
     the child have been lacerated or torn in the attempt to have carnal knowledge of the child.

3. The United States Supreme Court has held that "once a prosecutor has offered a race-neutral
explanation for the peremptory challenges and the trial court has ruled on the ultimate question of
intentional discrimination, the preliminary issue of whether the defendant had made a prima facie
showing becomes moot." Hernandez v. New York, 500 U.S. 352, 359 (1991) (citing United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)).

4. In Lockett v. State, 517 So. 2d 1346, 1352 (Miss.1987), this Court "declined to set any limits on
the prosecutor's use of any legitimate informational source heretofore or hereafter available as to
jurors."
