       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2016-KA-00379-COA

BOBBY LEE ALLEN A/K/A BOBBY LEE                                         APPELLANT
ALLEN, JR. A/K/A BOBBY ALLEN A/K/A
BOBBY ALLEN, JR.

v.

STATE OF MISSISSIPPI                                                      APPELLEE

DATE OF JUDGMENT:                       05/02/2013
TRIAL JUDGE:                            HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:              MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                        BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                        BY: SCOTT STUART
DISTRICT ATTORNEY:                      MICHAEL GUEST
NATURE OF THE CASE:                     CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                CONVICTED OF COUNT I, ARMED
                                        ROBBERY, AND SENTENCED TO FORTY
                                        YEARS; COUNT II, ACCESSORY AFTER
                                        THE FACT TO MURDER, AND
                                        SENTENCED TO TWENTY YEARS; AND
                                        COUNT III, CONSPIRACY TO COMMIT
                                        ARMED ROBBERY, AND SENTENCED TO
                                        FIVE YEARS, WITH THE SENTENCES TO
                                        RUN CONCURRENTLY, ALL IN THE
                                        CUSTODY OF THE MISSISSIPPI
                                        DEPARTMENT OF CORRECTIONS
DISPOSITION:                            AFFIRMED: 06/06/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.   In this appeal, Bobby Lee Allen asserts that the Madison County Circuit Court erred
when it sustained the State’s objections to his peremptory strikes of two potential jurors. He

also challenges the sufficiency of evidence to convict him of armed robbery and conspiracy

to commit armed robbery. Upon review, we find no error and affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    On April 30, 2012, Allen and two other males drove to an apartment complex in

Ridgeland, Mississippi. Allen, the driver of the vehicle, waited in the car as the other two

men robbed and shot Jose Gurrola Ortiz. When the men returned to the vehicle, Allen drove

away from the scene. Allen was indicted for armed robbery, accessory after the fact to

murder, and conspiracy to commit armed robbery, in violation of Mississippi Code

Annotated sections 97-3-79, 97-1-5, and 97-1-1 (Rev. 2014).

¶3.    During the investigation phase, Allen provided multiple statements to the detectives.

He confessed to driving the men to the location, and he admitted that he heard the gunshot.

But Allen claimed to have no prior knowledge of the robbery plot. He told investigators that

one of the men offered him gas money in exchange for a ride to a girl’s home. Allen

provided specific details about the crimes and admitted that he split the money with the men.

Allen was arrested after he provided his final statement.

¶4.    During jury-selection proceedings, the State challenged Allen’s six peremptory strikes

against Caucasian males. The State claimed the strikes were racially motivated and

improperly based on gender. Allen took issue with two jurors in particular and argued that

both of the potential jurors displayed disinterested mannerisms or body language. The circuit

judge found that Allen’s explanations were insufficient and neither race- nor gender-neutral.



                                              2
¶5.    After a two-day trial, Allen was convicted on all counts. On May 2, 2013, he was

sentenced to concurrent sentences of forty years. On appeal, counsel for Allen argues that

the circuit court erred when it overruled the peremptory strikes. Allen, in a supplemental pro

se brief, argues that the evidence was insufficient to convict him of Count I, armed robbery,

and Count III, conspiracy to commit armed robbery. Allen does not appeal the sufficiency

of the evidence as to Count II, accessory after the fact to murder.

                                         ANALYSIS

       I.     Batson Challenge

¶6.    Allen argues that the circuit court erred when it overruled his peremptory strikes as

race- and gender-biased. He challenges the circuit court’s determination that body language

is not a neutral justification. Allen asserts that the Mississippi Supreme Court has recognized

that body language and demeanor are in fact race- and gender-neutral reasons to exercise a

peremptory strike. Allen further contends that he justified the strikes when he explained that

both men appeared disinterested and predisposed to the notion that he was guilty. Finally,

Allen concludes that the trial court’s decision was erroneous because the record provides no

evidence of inherent discrimination. Thus, he claims he is entitled to a new trial on all counts

of conviction.

¶7.    “The trial judge acts as finder of fact when a Batson issue arises.” Avant v. State, 910

So. 2d 695, 698 (¶11) (Miss. Ct. App. 2005) (citation omitted). “This Court gives great

deference to the trial court’s findings of whether or not a peremptory challenge was race-

neutral.” Anthony v. State, 108 So. 3d 419, 424 (¶18) (Miss. Ct. App. 2012) (reversed on



                                               3
other grounds). “[W]e will not overrule a trial court on a Batson ruling unless the record

indicates that the ruling was clearly erroneous or against the overwhelming weight of the

evidence.” Id.

¶8.    During voir dire, Allen attempted to strike six jurors, and the State objected on the

basis that all of the strikes were against Caucasian males. The circuit court reviewed the

peremptory challenges and asked Allen to provide race- and gender-neutral reasons for the

strikes. Allen offered several reasons, and the State conceded four of the strikes. For the

remaining two potential jurors, the following exchange took place:

       Court:        So it does appear that all six of the challenges exercised by the
                     Defense was against white males. There was one white male
                     that was accepted. However, . . . I do think that that shows a
                     pattern in that all of the six challenges were utilized against
                     white males so that I will ask the Defense to give me a race-
                     neutral reason for the strike as to Juror Number 3.

       ....

       Defense:      Your Honor, I believe it was this particular one that was more
                     or less the mannerism and just that individual just showed a
                     general disinterest in what was going on, in my opinion.

       Court:        What says the State?

       Prosecutor:   Your Honor, we would say that it requires more than that.
                     Under the case law, under body language, you know, under
                     Canon, it’s arms folded; under Manning, it’s arms folded; under
                     Walters, rolled eyes. I’m not seeing anything here under just
                     general mannerism. . . .

       Court:        What says the Defense?

       ....

       Defense:      Your Honor, I would say that . . . his mannerisms w[ere] beyond

                                             4
                    what I would consider to be normal. He did appear to be
                    disinterested as if his mind were already made up. . . .

      Court:        I did not see a single response that he made to any of the
                    questions. . . . As I’m sitting here, I saw nothing that would
                    draw my attention to Mr. Keeton. He answered no questions so
                    I find that the explanation given by the Defense is insufficient
                    for a race-neutral reason so Mr. Keeton will go on the jury as
                    Juror Number 7.

      ....

      Court:        Number 9, Mr. Thomas, what’s your race- and gender-neutral
                    reason for striking Mr. Thomas?

      Defense:      Again, your Honor, I believe it was body language[.]

      Court:        What says the State?

      Prosecutor:   Your Honor, my notes reflect that Juror 9 did not open his
                    mouth and I do not indicate anything that would show that he
                    had made his mind up or ha[d] a predisposition; and as such,
                    pursuant to the case law, I think that this is [pretextual].

      Court:        What says the Defense?

      Defense:      I have nothing in response, Your Honor.

      Court:        All right. As I’m sitting here watching the venire, there was
                    certainly nothing about Number 9 that caused my attention to be
                    drawn to him. I find that the explanation given is not sufficient
                    and I find that the strike is [pretextual] and so Juror Number 9
                    will be placed on the jury as Juror Number 8.

¶9.   “The United States Supreme Court established a three-part test for a party to make out

a prima facie case of purposeful discrimination in jury selection.” Anthony, 108 So. 3d at

426 (¶20) (citing Batson v. Kentucky, 476 U.S. 79, 96 (1986)). “The objecting party must

show”:



                                            5
       (a) he is a member of a cognizable racial group;

       (b) the non-objecting party exercised peremptory challenges to remove venire
       members [of a different race from the defendant]; and

       (c) these facts and any other relevant circumstances raise an inference that the
       non-objecting party used that practice to exclude the venire [members] from
       the petit jury on account of their race.

Id.

¶10.   “After a prima facie case has been made, the party exercising the challenge has the

burden to articulate a race-neutral explanation for excluding the potential juror.” Flowers

v. State, 144 So. 3d 188, 196-97 (¶29) (Miss. Ct. App. 2014) (citation omitted). “As long as

discriminatory intent is not inherent in the explanation given by the [defendant], ‘the reason

offered will be deemed race[-]neutral.’” Id. at 197 (¶11) (citation omitted). Next, “the trial

court must determine whether the objecting party has met its burden to prove that there has

been purposeful discrimination in the exercise of the peremptory [strike], i.e., that the reason

given was a pretext for discrimination.” Id. (citation and quotation marks omitted).

¶11.   Here, the record reveals that Allen used his six strikes to dismiss Caucasian males

from the venire. After the State’s Batson1 challenge, the circuit judge asked Allen to provide

neutral reasons for each strike. During the process, the State conceded four of the dismissals.

Allen, who is African American, claimed that the remaining two potential jurors each



       1
         Batson v. Kentucky, 476 U.S. 79 (1986), is commonly referred to as Batson or as the
concept of a Batson challenge. The holding in this United States Supreme Court case sets
out the test for determining if a peremptory strike is racially discriminatory. In Batson, the
court found that the Equal Protection Clause forbids a party from challenging potential
jurors solely on account of race or the assumption that a particular race of people, as a
whole, will be unable to impartially consider the State’s case against a defendant.

                                               6
exhibited disinterested mannerisms and appeared as though they had already determined his

guilt. The State countered that Allen’s explanations were insufficient because he failed to

describe specific body language that suggested the men were disinterested. When given the

opportunity to further elaborate, Allen offered no response.

¶12.    The circuit judge pointed out that neither Juror 3 nor Juror 9 had answered any

questions during voir dire. The judge further noted that he had personally kept watch, and

he saw nothing that drew his attention to either of the men. The circuit judge ultimately

determined that Allen’s strikes were pretextual in nature and placed both of the men on the

jury.

¶13.    At trial, Allen failed to detail specific body language to indicate the jurors appeared

disinterested. But now he cites to several supreme court cases to support the contention that

body language and demeanor are in fact recognized as race- and gender-neutral reasons for

a peremptory strike. Allen claims that “a nonexhaustive list” of supreme court cases have

found that demeanor is a neutral justification. However, of the four cases that he relies on,

all of the challenges were based on specific behaviors, and the trial courts recognized each

explanation as neutral.

¶14.    For example, Allen erroneously relies on Lockett v. State, 517 So. 2d 1346, 1356-57

(Miss. 1987), which, in its appendix, provides a detailed listing of various reasons that have

been accepted as neutral by other state courts. Allen fails to recognize that the supreme court

merely cited to these cases to support its determination that the prosecution provided

legitimate reasons for striking jurors. As set out in the facts of Lockett, the trial court



                                               7
sustained the prosecution’s strike of a juror who wore a hat into the courtroom because this

behavior appeared contemptuous of the proceedings. Id. at 1351-52. Likewise, another

potential juror in Lockett rolled her eyes and became unresponsive to the voir dire after she

was denied excusal from the jury pool. Id. at 1351. Consequently, the trial court determined

that the potential juror’s posture and demeanor appeared hostile and were legitimate concerns

for the prosecution. Id.

¶15.   In the remaining cases cited by Allen, he fails to reference specific language upon

which he relies for each case. As such, the cases cited provide little support for his argument

that the supreme court recognizes demeanor, generally, as a neutral reason. Allen cites Lynch

v. State, 877 So. 2d 1254 (Miss. 2004), but this case does not add much support to his

position. In Lynch, each of the peremptory challenges was based on actual responses and the

prosecutor’s belief that several of the jurors appeared anxious to be excused from jury duty.

Id. The instant case is distinct because neither Juror 3 nor Juror 9 responded to voir dire, nor

was either juror alleged to have been anxious to get off the jury.

¶16.   Allen also relies on Davis v. State, 660 So. 2d 1228, 1242 (Miss. 1995), but he cites

this case to return the Court’s attention to the list provided in Lockett. Mere reference to the

word “demeanor” in a supreme court opinion without more of an explanation of the specific

demeanor is not enough to sustain a peremptory strike as race-neutral. Further, of the

prosecution’s nine peremptory strikes, in Davis, none were predicated on body language

alone. Id. at 1240-42. The facts in Davis are distinct from the instant case. The prosecution

provided extensive justification for each of its strikes, and the trial court sustained each



                                               8
reason. Id. We would apply the same analysis provided above for Davis to Allen’s use of

Hardison v. State, 94 So. 3d 1092 (Miss. 2012), which he also relies on to support his

argument that demeanor alone is a sufficient race-neutral justification.

¶17.   Finally, in reliance on Randall v. State, 716 So. 2d 584, 588 (¶16) (Miss. 1998), Allen

asserts that “any reason which does not facially violate the Constitution is sufficient.”

Further, he adds that “a strike does not have to be persuasive or even plausible.” Id. Allen

further contends that the record is void of any inherent discriminatory intent toward Jurors

3 and 9. Id.

¶18.   Here, Allen misinterprets the court’s intent when he relies solely on this passage from

the opinion. In this portion of Randall, the supreme court simply laid out the steps to be

taken by a trial court when analyzing a Batson challenge of a peremptory strike. In fact, this

Court has held that “a facially race-neutral explanation for a peremptory challenge should

never be sufficient, standing alone, to meet a Batson objection.” Dubose v. State, 22 So. 3d

340, 347-48 (¶17) (Miss. Ct. App. 2009). Rather, “[a] Batson [challenge] requires more.”

Id. Under Batson, “the trial judge [must] determine whether the facially race-neutral reason

is in fact a pretext for purposeful discrimination: a ‘smoke-screen,’ if you will.” Id. When

challenged, Allen provided no explanations to disprove the State’s argument that he sought

to rid the jury of Caucasian males. Unlike the previously discussed cases, in the instant case,

neither of the jurors spoke nor exhibited specific mannerisms that raised concern.

¶19.   While the supreme court has recognized that “demeanor is a legitimate reason . . . to

exercise a peremptory challenge,” here, the challenging party failed to articulate specific



                                              9
mannerisms or demeanors for the peremptory strikes. Lockett, 517 So. 2d at 1352. The

circuit judge made specific findings based on his own observations as well as the assertions

of each party. Allen failed to elaborate on the mannerisms or body language that caused him

concern. Moreover, the circuit judge personally noted that neither of the jurors drew his

attention. Without more of an explanation from Allen, the circuit judge determined there was

in fact a pattern of strikes against Caucasian males only.

¶20.   This Court gives great deference to a trial court’s finding of whether or not a

peremptory challenge was race-neutral. Here, we find that the circuit court did not err when

it found that Allen’s explanations were neither race- nor gender-neutral. The evidence in the

record supports the circuit judge’s finding that the strikes were discriminatory and pretextual.

The circuit court’s ruling was not clearly erroneous. This issue is without merit.

       II.    Sufficiency of the Evidence

¶21.   Allen contends there was insufficient evidence to convict him of armed robbery and

conspiracy to commit armed robbery. He argues that the State failed to prove each element

of the crimes. He contends there was plain error because the evidence did not show that he

conspired to commit the unlawful act of armed robbery. Allen argues that the State failed

to prove that an agreement existed between him and the other two men involved in the armed

robbery.

¶22.   “On review of the sufficiency of the evidence, ‘the critical inquiry is whether the

evidence shows []beyond a reasonable doubt that [the] accused committed the act charged,

and that he did so under such circumstances that every element of the offense existed; and



                                              10
where the evidence fails to meet this test it is insufficient to support a conviction.’” Dorsey

v. State, 986 So. 2d 1080, 1085 (¶15) (Miss. Ct. App. 2008) (citing Bush v. State, 895 So. 2d

836, 843 (¶16) (Miss. 2005)). The question is not “whether we believe the evidence showed

guilt beyond a reasonable doubt.” Id. Rather, our inquiry is based on consideration of “the

evidence in the light most favorable to the verdict.” Id. We must ask ourselves if “a rational

trier of fact could have found each essential element of the crime beyond a reasonable

doubt.” Id. (citation omitted). If “the facts and inferences . . . point in favor of the

defendant[,] on any element of the offense[,] with sufficient force that no reasonable juror

could have found guilt beyond a reasonable doubt, then we must reverse and render.” Id.

(citation omitted).

¶23.   To obtain a conviction for conspiracy to commit armed robbery, the State was

required to prove that Allen along with “two (2) or more persons . . . conspire[d] . . . to

commit [the] crime [of armed robbery].” Miss. Code Ann. § 97-1-1. To prove the

underlying crime of armed robbery, the State was also required to prove, beyond a reasonable

doubt, that Allen “feloniously [took] or attempt[ed] to take from the person or from the

presence the personal property of another and against his will by violence to his person or

by putting such person in fear of immediate injury to his person by the exhibition of a deadly

weapon.” Miss. Code Ann. § 97-3-79.

¶24.   In his supplemental pro se brief, Allen claims that he had no deliberate intent to

commit any crime. He asserts that he had no prior knowledge of the other men’s plan to

commit a robbery. He contends that his agreement to provide transportation in exchange for



                                              11
gas money falls short of conspiring to engage in an armed robbery. Further, he argues that

the conviction was received in error because the State failed to prove that he agreed to

accomplish some unlawful purpose. Allen offers this lack of awareness as proof that he

never entered into an agreement to commit the armed robbery.

¶25.   Allen claims that his ignorance of the robbery plot is undisputed. However, this claim

is contrary to the evidence presented at trial. Weighing the evidence in the light most

favorable to the verdict, Allen’s own confessions, accompanied by the investigator’s

corroborating testimony, established that Allen conspired to commit armed robbery.

Therefore, Allen, as a coconspirator, was also guilty of armed robbery.

¶26.   Allen’s recorded statements were played for the jury, and several of the detectives

testified on behalf of the State. Allen told detectives that he drove around until the gunman

instructed him to stop the vehicle and back into a parking spot. He also admitted that he

became aware of the plan to commit armed robbery before the act took place.

¶27.   Allen placed himself at the scene, and he was present when the victim was selected

as the target for the armed robbery. He provided a precise description of the victim’s vehicle

and also knew that the driver was of Mexican descent. Allen told investigators that he sat

in the car, and played on his cell phone while the men executed the robbery. He admitted

that he heard the gunshot, and he waited on the men to return to the car before he drove

away. Allen also confessed that he and the other men split the money that was taken from

the victim. “We do not find that the evidence so heavily preponderates against the verdict

that to allow the verdict to stand would permit an unconscionable injustice.” Dorsey, 986



                                             12
So. 2d at 1087 (¶21). We affirm.

¶28. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF FORTY
YEARS; COUNT II, ACCESSORY AFTER THE FACT TO MURDER, AND
SENTENCE OF TWENTY YEARS; AND COUNT III, CONSPIRACY TO COMMIT
ARMED ROBBERY, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCES
TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO MADISON COUNTY.

      LEE, C.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE,
JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY IRVING, P.J.

         WESTBROOKS, J., DISSENTING:

¶29.     I find that the trial court erred when it overruled Allen’s peremptory strikes of two

potential jurors. Because I believe the proffered reasons were race- and gender-neutral, I

respectfully dissent.

¶30.     Allen’s counsel used peremptory strikes on six white males. The prosecutor objected

and requested that Allen’s counsel be required to give race- and gender-neutral reasons for

the strikes. The court found that Allen’s counsel provided race- and gender-neutral reasons

for four of the peremptory strikes. For the remaining two jurors, the following exchange took

place:

         THE COURT: So it does appear that all six of the challenges exercised by the
         Defense was against white males. There was one white male that was
         accepted. However, . . . . I do think that shows a pattern in that all of the six
         challenges were utilized against white males so that I will ask the Defense to
         give me a neutral reason for the strike as to Juror Number 3.

         ....

         THE COURT: All right. What says the Defense to the race gender reason


                                                13
       [sic] for exercising D1?

       MR. DIXON (ALLEN’S COUNSEL): Your Honor, I believe it was this
       particular one that was more or less the mannerism and just that individual just
       showed a general disinterest in what was going on, in my opinion.

       ....

       THE COURT: Number 9, Mr. Thomas, what’s your race and gender neutral
       reason for striking Mr. Thomas?

       MR. DIXON: Again, your Honor, I believe it was the body language[.]

¶31.   The trial court found that Allen’s answers were pretextual in nature. I disagree. “Our

supreme court has set out a non-exhaustive list of valid race-neutral reasons for the exercise

of peremptory challenges[.]” Perry v. State, 949 So. 2d 764, 767-68 (¶7) (Miss. Ct. App.

2006). This list “includes living in a ‘high crime’ area, body language, demeanor, distrust

of a juror by the party exercising the strike, inconsistency between oral responses and juror’s

card, criminal history of juror or relative, social work and other types of employment, and

religious beliefs.” Id; see also Walker v. State, 815 So. 2d 1209, 1215 (¶12) (Miss. 2002)

(citing Lockett v. State, 517 So. 2d 1346, 1356-57 (Miss. 1987)).

¶32.   Also, a white-male juror had been accepted in the jury box before the prosecution

made a challenge to Allen’s peremptory strikes. “When considering a Batson objection, the

trial court should consider the racial composition of the entire venire panel, the jurors

considered for service, and the jurors and alternates who actually served.” Camper v. State,

24 So. 3d 1072, 1076 (¶17) (Miss. Ct. App. 2010). In Camper, a juror was excluded for

looking “disinterested” and had her hands crossed during the void dire procedure. Id. at

(¶15). “The trial court made its factual finding concerning [the juror] by holding that bad

                                              14
body language was an acceptable race/gender neutral reason.” Id. This Court further found

that “it was not error for the [trial] judge to accept the . . . reason, because body language has

been accepted by the Mississippi Supreme Court as a race-neutral reason for the exercise of

a peremptory strike.” Id.

¶33.   Allen’s counsel argued that the witnesses looked disinterested and exhibited body

language and mannerisms that exhibited that their minds had already been made up regarding

the case. Accordingly, I find these reasons to be race- and gender-neutral.

¶34.   The majority asserts that specific body language needs to be specified in giving a race-

and gender-neutral reason for striking a potential juror, and cites the appendix in Lockett, 517

So. 2d at 1356-57, which provides a listing of various reasons that have been accepted as

neutral by other state courts. Maj. Op. at (¶¶13-14). The majority holds that Allen

erroneously relies on Lockett; however, “demeanor” and “lack of eye contact and

attentiveness” are listed as neutral reasons. Lockett, 517 So. 2d at 1356. Therefore, I would

find that Allen’s reasons for using the peremptory strikes on Jurors 3 and 9 were race- and

gender-neutral.

¶35.   I respectfully dissent, and I would reverse and remand this case for a new trial.

       IRVING, P.J., JOINS THIS OPINION.




                                               15
