                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2003-CT-01686-SCT


JERRY McGEE

v.

STATE OF MISSISSIPPI


                          ON MOTIONS FOR REHEARING
                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:            09/25/2001
TRIAL JUDGE:                 HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED:   HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:      THOMAS W. POWELL
ATTORNEY FOR APPELLEE:       OFFICE OF THE ATTORNEY GENERAL
                             BY: W. DANIEL HINCHCLIFF
DISTRICT ATTORNEY:           ELEANOR FAYE PETERSON
NATURE OF THE CASE:          CRIMINAL - FELONY
DISPOSITION:                 THE JUDGMENT OF THE COURT OF
                             APPEALS IS AFFIRMED. THE
                             JUDGMENT OF THE CIRCUIT COURT OF
                             THE FIRST JUDICIAL DISTRICT OF HINDS
                             COUNTY IS REVERSED, AND THIS CASE
                             IS REMANDED TO THAT COURT FOR A
                             NEW TRIAL - 01/18/2007
MOTIONS FOR REHEARING FILED: 09/28/2006
MANDATE ISSUED:


       EN BANC.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The motions for rehearing filed by Jerry McGee are granted. The previous opinions

are withdrawn, and these opinions are substituted therefor.
¶2.    Jerry McGee was convicted of two counts of armed robbery by a Hinds County

Circuit Court jury and sentenced to life imprisonment in the custody of the Mississippi

Department of Corrections. The Court of Appeals reversed the judgment of conviction. See

McGee v. State, ___ So. 2d ___, 2005 WL 2739827 (Miss. Ct. App. 2005). We affirm the

decision of the Court of Appeals, reverse the judgment entered and sentence imposed by the

Circuit Court of the First Judicial District of Hinds County, and remand for a new trial in

accordance with this opinion.

                                          FACTS

¶3.    On January 4, 2000, McGee approached two women with an unloaded .12 gauge

pistol grip shotgun, which was wrapped up in a yellow cloth, and demanded their money.

The women testified they never saw the gun, but they could tell it was a gun under the yellow

cloth. The women screamed and ran, and McGee grabbed one of their purses. A nearby

security guard heard the screams and saw McGee running toward him with a purse. When

the guard gave chase, McGee threw the purse at the guard. The guard tackled McGee, and

the shotgun fell to the ground. The guard was able to restrain McGee until police arrived.

A Jackson police officer testified that he saw the shotgun on the ground with a yellow cloth

wrapped around the handle. He retrieved the gun but left the yellow cloth. McGee signed

a confession but denied that he ever exhibited the shotgun or pointed it at the victims.

¶4.    In McGee’s first trial, a mistrial was declared because of a hung jury. The second trial

resulted in a conviction. The Court of Appeals reversed the conviction, finding that gender

discrimination by the State in the selection of the jury warranted a new trial under the plain

                                              2
error doctrine. We granted the State’s petition for writ of certiorari and now find that the

Court of Appeals was correct in its decision.

                                       DISCUSSION

                                  BATSON VIOLATION

¶5.    McGee raised a Batson challenge during voir dire arguing the State was

impermissibly striking African-American jurors.1       The prosecutor gave gender as her

race-neutral reason for striking a juror:

              BY THE STATE:         Your Honor, on panel number 5 juror
                                    number 4, Mr. Washington. I actually
                                    liked him. He has a college education, is
                                    well-educated except for the fact that his
                                    brother apparently was convicted in a drug
                                    trial in Madison County, and that did give
                                    me some concern. That was the reason I
                                    struck him.

              BY THE COURT: But Ms. Deandrea's [another juror] mama
                            was convicted of a drug crime in Hinds
                            County. You didn't strike her.

              BY THE STATE:         I agree, Your Honor.

              BY THE COURT: Tell me the difference between her and a
                            black man whose [brother was convicted].


       1
         When a Batson challenge is raised, a three-pronged inquiry ensues. First, the party
objecting to the peremptory challenge “must make a prima facie showing that race was the
criteria for the exercise of the peremptory strike.” Lynch v. State, 877 So. 2d 1254, 1270-71
(Miss. 2004). Second, the burden shifts to the party who exercised the challenge to give a
race-neutral reason for exercising the peremptory strike. Id. at 1271. Finally, the trial court
determines whether the party objecting to the peremptory strike has shown the presence of
purposeful discrimination in the strike’s use. Id. at 1272. See Batson v. Kentucky, 476 U.S.
79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

                                                3
              BY THE STATE:         Well, Your Honor, it's difficult to take it
                                    on a juror by juror basis. I took these
                                    jurors as a whole. There weren't any
                                    specific things other than the way they-like
                                    I said with Mr. Washington, it concerned
                                    me that his brother was in Madison
                                    County.

              Q.     But Ms. Deandrea's mama being convicted didn't concern
                     you?

              A.     And, Your Honor, the reason I don't like trying to do
                     these Batson challenges piecemeal is because it's difficult
                     because there are going to be jurors as we go along
                     throughout this panel that I absolutely accept that are
                     African-Americans that have relatives that have
                     convictions. So it's difficult for me to explain in one case
                     when --

              Q.     Right now all I'm asking you is explain why you weren't
                     concerned about Ms. Deandrea's mother who has this
                     conviction for a drug offense.

              A.     Your Honor, that did concern me. The other reason –
                     and it had nothing to do with Mr. Washington's race – it's
                     that he's a male. And I don't know if gender is
                     discrimination or something, but Ms. Deandrea is a
                     female, so between the two, a female or a male, I would
                     rather have a female, you know, taking criminal
                     convictions, if that family member have [sic] criminal
                     convictions.

¶6.    McGee made no objection to the State’s use of gender as a race-neutral reason for

excluding the juror. The Court of Appeals characterized defense counsel’s failure to object

as a failure to raise a Batson issue and found that neglecting to raise such an objection would

normally bar McGee’s argument concerning the State’s use of gender in jury selection.

McGee, 2005 WL 2739827, at *2-3; see also Weeks v. State, 804 So. 2d 980, 987 (Miss.

                                              4
2001). Despite the purported procedural bar, the Court of Appeals reviewed the issue of the

juror’s exclusion by relying on McGee’s right to raise the issue for the first time on appeal

under the plain error doctrine. McGee, 2005 WL 2739827 at *4. The Court of Appeals

found the State’s on-the-record admission of gender discrimination cast doubt on the

integrity of McGee’s entire trial and reversed his conviction and remanded the case for a new

trial. We agree with the Court of Appeals’ decision.

¶7.    Batson and its progeny anticipated a defendant’s struggle to show a prosecutor’s use

of peremptory challenges to rid a jury of members of a specific group based on some distinct

characteristic like race or gender. See Batson, 476 U.S. at 92-95. See also J.E.B. v.

Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). The language of Batson,

however, clearly applies to situations where a pattern of discrimination is present in one

party’s use of its peremptory challenges. See Batson, 476 U.S. at 96-98; Horne v. State,

819 So. 2d 1186, 1188 (Miss. 2001); Randall v. State, 716 So. 2d 584, 587 (Miss. 1998).

The present case, however, did not involve the systematic exclusion of males from a jury but

only the exclusion of a single male juror. The State’s use of gender as a reason for the

exclusion of a male juror from the jury panel violated McGee’s rights under the equal

protection clause. See J.E.B., 511 U.S. at 130-31.

¶8.    The failure to object to the State’s actions during jury selection normally bars the

defendant from raising the issue on appeal. Spicer v. State, 921 So. 2d 292, 309 (Miss. 2006)

(citing Williams v. State, 684 So. 2d 1179, 1203 (Miss. 1996)); see also Chase v. State,

645 So. 2d 829, 843-44 (Miss. 1994) (where we applied a procedural bar to a Batson issue

                                             5
when the defendant failed to raise it during his trial). However, if there is a finding of plain

error, a reviewing court may consider the issue regardless of the procedural bar. A review

under the plain error doctrine is necessary when a party’s fundamental rights are affected,

and the error results in a manifest miscarriage of justice. Williams v. State, 794 So. 2d 181,

187-88 (Miss. 2001). To determine if plain error has occurred, we must determine “if the

trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and

whether the error has prejudiced the outcome of the trial.” Cox v. State, 793 So. 2d 591, 597

(Miss. 2001) (relying on Grubb v. State, 584 So. 2d 786, 789 (Miss. 1991); Porter v. State,

749 So. 2d 250, 260-61 (Miss. Ct. App. 1999)).

¶9.    Allowing the State to exclude the potential juror based on his gender was indeed a

deviation from sound precedent. See J.E.B., 511 U.S. at 139-41; Duplantis v. State,

644 So. 2d 1235, 1246 (Miss. 1994). Therefore, we will review McGee’s claim of a Batson

violation under the plain error doctrine. The record undoubtedly shows the prosecutor had

a discriminatory intent in her attempt to prevent Washington from being seated as a juror.

¶10.   A "defendant [has] the right to be tried by a jury whose members are selected pursuant

to nondiscriminatory criteria. J.E.B., 511 U.S. at 129. In J.E.B., the Supreme Court stated,

              we have reaffirmed repeatedly our commitment to jury selection
              procedures that are fair and nondiscriminatory. We have
              recognized that whether the trial is criminal or civil, potential
              jurors, as well as litigants, have an equal protection right to jury
              selection procedures that are free from state-sponsored group
              stereotypes rooted in, and reflective of, historical prejudice.




                                               6
Id. (emphasis added). More specifically, the Court held “[i]ntentional discrimination on the

basis of gender by state actors violates the Equal Protection Clause, particularly where, as

here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad

stereotypes about the relative abilities of men and women.” Id. at 130-31. Moreover, “a

consistent pattern of official racial discrimination is [not] a necessary predicate to a violation

of the Equal Protection Clause.” Village of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252, 266 n.14, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977).

¶11.   Based on the above precedent, we find that, because the State admitted that it was

discriminating against a man in its use of a peremptory strike, McGee’s right to equal

protection was violated. We further find that, based on the above precedent, only one

instance – not a consistent pattern – of purposeful discrimination is enough to prove a

discriminatory purpose. Because McGee’s right to equal protection was violated, the entire

judicial process was infected, and we must reverse the judgment of conviction and remand

for a new trial.

                                       CONCLUSION

¶12.   We affirm the judgment of the Court of Appeals, reverse the judgment entered by and

the sentence imposed by the Circuit Court of the First Judicial District of Hinds County,

Mississippi, and remand this case to the circuit court for a new trial in accordance with this

opinion.

¶13. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE
JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF


                                                7
HINDS COUNTY IS REVERSED, AND THIS CASE IS REMANDED TO THAT
COURT FOR A NEW TRIAL.

      SMITH, C.J., COBB, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH,
JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. DICKINSON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN
OPINION JOINED BY SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON
AND RANDOLPH, JJ. GRAVES, J., NOT PARTICIPATING.

       DICKINSON, JUSTICE, SPECIALLY CONCURRING:

¶14.   This case presents us with an unusually stark and clear episode of a prosecutor

violating the fundamental constitutional rights of both the accused and a prospective juror

by excluding the juror because of his gender. When challenged by the trial court as to

whether her peremptory strike was racially motivated, the prosecutor unambiguously stated

on the record that she was exercising a peremptory strike on Juror Washington, not because

of his race, but because “he’s a male.”             The prosecutor attempted to justify this

discriminatory strike by saying, “[a]nd I don’t know if gender is discrimination or something,

but Ms. Deandrea is a female, so between the two, a female or a male, I would rather have

a female . . . .” Suffice it to say, the prosecutor in this case engaged in blatant, impermissible

discrimination.

¶15.   The law pertaining to racial discrimination in jury selection applies equally to gender

discrimination. Undeniably, lawful discrimination based upon gender in jury selection

continued long after the United States Supreme Court held in Strauder v. West Virginia, 100

U.S. 303, 310, 25 L. Ed. 664 (1880), that purposeful exclusion of jurors based on race

violates the Equal Protection Clause of the Fourteenth Amendment to the Federal


                                                8
Constitution. In fact, the Strauder Court specifically held that the State “may confine the

selection [of jurors] to males.” Id.

¶16.   This wall of discrimination began to crumble, though, in 1946 when the Court held

that, in states where local law 2 allowed women to serve on juries in state court, women could

not be excluded from the venire in federal court. Ballard v. United States, 329 U.S. 187,

193, 67 S. Ct. 261, 91 L. Ed. 181 (1946). The coup de gras was delivered in 1994 when the

Court held in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d

89 (1994) that “[d]iscrimination in jury selection, whether based on race or on gender”

violates the Equal Protection Clause of the Fourteenth Amendment. 511 U.S. at 140. The

Court went on to state

       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].

Id. at 146 (quoting Batson v. Kentucky, 476 U.S. 79, 97-98, 106 S. Ct. 1712, 90 L. Ed. 2d

69 (1986)). The J.E.B. Court also stated that “[f]ailing to provide jurors the same protection

against gender discrimination as race discrimination could frustrate the purpose of Batson

itself.” 511 U.S. at 145. Thus, any discussion of the law pertaining to racial discrimination

in jury selection applies equally to discrimination based upon gender.




       2
        Mississippi continued to prohibit women from serving on juries as late as 1961. See
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 132 n.3, 114 S. Ct. 1419, 128 L. Ed. 2d 89
(1994) (citing Hoyt v. Florida, 368 U.S. 57, 62, 82 S. Ct. 159, 7 L. Ed. 2d 118 (1961)).

                                               9
       A pattern of discrimination is not required.

¶17.   Although the Supreme Court’s decision in Batson postdated Strauder by over a

century, Batson provided significant elaboration and the process to be followed when

discrimination in jury selection is suspected. In Batson, the prosecutor used peremptory

strikes to exclude all four African-Americans on the venire, and the defendant was convicted

by an all-white jury. 476 U.S. at 83. Relying on Swain v. Alabama, 380 U.S. 202, 85 S. Ct.

824, 13 L. Ed. 2d 759 (1965), the Supreme Court of Kentucky affirmed the conviction,

stating “a defendant alleging lack of a fair cross section must demonstrate systematic

exclusion of a group of jurors from the venire.” Batson, 476 U.S. at 84. In reversing the

Kentucky court, the United States Supreme Court made it crystal clear that to prevail on a

“Batson challenge,” a defendant is not required 3 to demonstrate a pattern or multiple

instances of discrimination:

       [T]his Court has recognized that a defendant may make a prima facie showing
       of purposeful racial discrimination in selection of the venire by relying solely
       on the facts concerning its selection in his case. These decisions are in
       accordance with the proposition, articulated in Arlington Heights v.
       Metropolitan Housing Development Corp., that ‘a consistent pattern of
       official racial discrimination’ is not ‘a necessary predicate to a violation
       of the Equal Protection Clause. A single invidiously discriminatory
       governmental act’ is not ‘immunized by the absence of such discrimination in
       the making of other comparable decisions.’ 429 U.S. at 266 n.14. For
       evidentiary requirements to dictate that ‘several must suffer discrimination’
       before one could object, McCray v. New York, 461 U.S. at 965 (Marshall, J.,
       dissenting from denial of certiorari), would be inconsistent with the promise
       of equal protection to all.




       3
         In fact Batson overruled Swain to the extent that case required a petitioner to
establish a systematic pattern of discrimination in jury selection in order to prevail. Batson,
476 U.S. at 100.

                                              10
Batson, 476 U.S. at 95-96 (first emphasis in original; remaining emphasis added).4

¶18.   In light of this clear guidance, a pattern of discrimination is not a prerequisite for

demonstrating a Batson violation. The prosecutor’s admittedly discriminatory reasoning for

striking Juror Washington was sufficient.

       Batson protects the rights of both the defendant and the potential juror.

¶19.   I wholeheartedly agree with the majority’s conclusion that Jerry McGee’s

constitutional rights were violated.      I also find the conclusion inescapable that the

discriminatory exclusion of Juror Washington violated his own constitutional rights as well.

¶20.   The Batson Court squarely addressed this issue. After establishing that “[p]urposeful

racial discrimination in selection of the venire violates a defendant’s right to equal

protection,” id. at 86, the Court went on to say

       [r]acial discrimination in selection of jurors harms not only the accused whose
       life or liberty they are summoned to try. Competence to serve as a juror
       ultimately depends on an assessment of individual qualifications and ability
       impartially to consider evidence presented at a trial. See Thiel v. Southern
       Pacific Co., 328 U.S. 217, 223-24. A person’s race simply ‘is unrelated to his
       fitness as a juror.’ Id. at 227 (Frankfurter, J., dissenting). As long ago as
       Strauder, therefore, the Court recognized that by denying a person
       participation in jury service on account of his race, the State unconstitutionally
       discriminated against the excluded juror. 100 U.S. at 308.

Batson, 476 U.S. at 87. The Court later, in J.E.B., echoed this holding and applied it to

discrimination based on gender:




       4
        While a “pattern” of strikes against a set of jurors can give rise to an inference of
discrimination, “the prosecutor’s questions and statements during voir dire examination
and in exercising his challenges may [also] support . . . an inference of discriminatory
purpose.” Batson, 476 U.S. at 97 (emphasis added). This is precisely the scenario
presented for our consideration in this case.

                                              11
       In recent cases we have emphasized that individual jurors themselves have a
       right to nondiscriminatory jury selection procedures. [Citations omitted.]
       Contrary to respondent’s suggestion, this right extends to both men and
       women. See Mississippi Univ. For Women v. Hogan, 458 U.S. at 723 (that a
       state practice ‘discriminates against males rather than against females does not
       exempt it from scrutiny or reduce the standard of review’). . . . All persons,
       when granted the opportunity to serve on a jury, have the right not to be
       excluded summarily because of discriminatory and stereotypical presumptions
       that reflect and reinforce patterns of historical discrimination.

J.E.B., 511 U.S. at 140-42. Thus, it is beyond debate that the prosecutor in this case violated

not only the constitutional rights of Jerry McGee, but also those of Juror Washington.

       Plain error – certain errors are never harmless

¶21.   The exclusion of Juror Washington based on his gender was, indeed, plain error.

Significantly, the defendant, in this case, was not required to demonstrate that the

constitutional violation prejudiced the outcome of his trial.

¶22.   First, in the context of harmless error analysis, the United States Supreme Court has

categorized constitutional errors into two groups: trial errors and framework errors. Trial

errors are those “which occur[] during the presentation of the case to the jury, and which may

therefore be quantitatively assessed in the context of other evidence presented in order to

determined whether its admission was harmless beyond a reasonable doubt.” Arizona v.

Fulminante, 499 U.S. 279, 307-08, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). These errors

are subject to harmless error analysis.

¶23.   Certain errors, however, may never be considered harmless.               These include

constitutional deprivations involving a “structural defect affecting the framework within

which the trial proceeds,” rather than an error in the trial itself. Id. at 310. Clearly, the

discriminatory striking of a juror based on his gender directly impacts the integrity of the

                                              12
judicial process and “affect[s] the framework within which the trial proceeds.” Id. Cf.

Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986) (unlawful

exclusion of African-Americans from grand jury is not subject to harmless error analysis).

¶24.   Where, as here, a clear, unambiguous violation of a defendant’s fundamental

constitutional right affects the structure of the trial itself, this Court will not excuse that

violation because of the defendant’s inability or failure to demonstrate prejudice. Were such

a demonstration required, how would any defendant in McGee’s position meet such a

burden? The argument that excluding one male is permissible where other men on the jury

can represent the “male point of view” is anathema to the United States Supreme Court’s

guiding principle in J.E.B. that gender stereotypes and generalizations have no place in the

courtroom. 511 U.S. at 140. A defendant cannot be called upon to pinpoint or demonstrate

what prejudice he suffered in the outcome of his trial when the framework of the trial itself

is compromised.

¶25.   This Court has held “that a finding of plain error is necessary when a party’s

fundamental rights are affected.” Williams v. State, 794 So. 2d 181, 188 (Miss. 2001) (citing

Grubb v. State, 584 So. 2d 786, 789 (Miss. 1991)). The United States Supreme Court has

also categorized as plain error “those errors that ‘seriously affect the fairness, integrity or

public reputation of judicial proceedings.’” United States v. Young, 470 U.S. 1, 15, 105 S.

Ct. 1038, 84 L. Ed. 2d 1 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56

S. Ct. 391, 80 L. Ed. 555 (1936)). Regardless of whether a defendant can demonstrate

prejudice, we will not excuse discrimination when it infects our judicial system:




                                              13
       Discrimination in jury selection, whether based on race or on gender, causes
       harm to the litigants, the community, and the individual jurors who are
       wrongfully excluded from participation in the judicial process. The litigants
       are harmed by the risk that the prejudice that motivated the discriminatory
       selection of the jury will infect the entire proceedings. See Edmonson, 500
       U.S. at 628 (discrimination in the courtroom ‘raises serious questions as to the
       fairness of the proceedings conducted there.”). The community is harmed by
       the State’s participation in the perpetuation of invidious group stereotypes and
       the inevitable loss of confidence in our judicial system that state-sanctioned
       discrimination in the courtroom engenders.

J.E.B., 511 U.S. at 140.

¶26.   There must be clear and certain consequences to the blatant violation of a fundamental

constitutional right. To hold otherwise is to free the State to commit those violations so long

as the case against the defendant is strong.        This Court must refuse to emasculate

fundamental rights by expanding exceptions to create a disincentive for the protection of

those rights. The erosion of constitutional rights inevitably leads to ignorance by some that

those rights even exist.5 As the United States Supreme Court has explained, “[t]he message

it sends to all those in the courtroom, and all those who may later learn of the discriminatory

act, is that certain individuals, for no reason other than gender, are presumed unqualified by

state actors to decide important questions upon which reasonable persons could disagree.”

Id. at 141. This Court will not permit such a message to be broadcast to the citizens of

Mississippi.

¶27.   Finally, Juror Washington had a constitutional right not be excluded from jury service

simply because of his gender. As stated above, “individual jurors themselves have a right




       5
         Indeed, the prosecutor in this case was completely unaware that gender
discrimination was unconstitutional.

                                              14
to nondiscriminatory jury selection procedures.” Id. at 140-41. However, even if we were

to require Juror Washington to demonstrate prejudice in this case, the prejudice is quite

obvious; he was sent home.

¶28.   For the reasons stated, I concur with the majority’s decision to affirm the Court of

Appeals’ judgment, reverse the trial court’s judgment, and remand this case for a new trial,

free of violation of the constitutional rights of the defendant and the prospective jurors.

    SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON AND
RANDOLPH, JJ., JOIN THIS OPINION.




                                             15
