Avant v. State

896 So. 2d 379, 2005 WL 14900
CourtCourt of Appeals of Mississippi
DecidedJanuary 4, 2005
Docket2003-KA-02251-COA
StatusPublished
Cited by1 cases

This text of 896 So. 2d 379 (Avant v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avant v. State, 896 So. 2d 379, 2005 WL 14900 (Mich. Ct. App. 2005).

Opinion

896 So.2d 379 (2005)

Titus Depriest AVANT, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2003-KA-02251-COA.

Court of Appeals of Mississippi.

January 4, 2005.
Rehearing Denied March 22, 2005.

David L. Walker, Southaven, attorney for appellant.

Office of Attorney General by Billy Gore, attorney for appellee.

Before KING, C.J., IRVING and MYERS, JJ.

IRVING, J., for the Court.

¶ 1. Titus DePriest Avant a/k/a Titus D. Avant was convicted of the sale of cocaine and sentenced to eight years in the custody of the Mississippi Department of Corrections and twelve years post-release supervision. He has appealed and raises the following issues: (1) whether the trial court erred in overruling his objection to the empaneling of the jury and to the State's exercising peremptory challenges against certain prospective jurors, (2) whether the trial court erred in overruling his motion to interrogate the prospective *380 jurors concerning the basis offered by the State for its challenges, and (3) whether the trial court erred in sentencing him to twelve years of post-release supervision.

¶ 2. We find no reversible error; therefore, we affirm the decisions of the trial court and the resultant conviction and sentence.

FACTS

¶ 3. Avant does not challenge the sufficiency or the weight of the evidence supporting his conviction; therefore, a long recitation of the facts is not necessary. Suffice it to say that his conviction was based on an undercover purchase of cocaine involving audio and video recording of the transaction.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Batson Challenges to Prospective Jurors

¶ 4. Avant argues that the trial court erred in accepting as race-neutral the State's explanation for striking veniremen Kenneth Richardson, Bobby Walton, Jr., Calvin Dandridge, and Jerry Ballard and in empaneling the jury without these persons being members of the panel. The State counters that the reasons offered by the State were race-neutral and that no error occurred in permitting the strikes by the State.

¶ 5. We are limited in our review of the trial court's decision accepting as race-neutral the explanations given by the State for striking particular veniremen in the face of a Batson challenge.

We give great deference to the trial court's findings of whether or not a peremptory challenge was race-neutral.... Such deference is necessary because finding that a striking party engaged in discrimination is largely a factual finding and thus should be accorded appropriate deference on appeal.... Indeed, we 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....

Lynch v. State, 877 So.2d 1254(¶ 46) (Miss.2004) (quoting Walker v. State, 815 So.2d 1209, 1214(¶ 10) (Miss.1202)). "The trial judge acts as finder of fact when a Batson issue arises." Id. at (¶ 47) (citing Walker, 815 So.2d at 1215). "The race neutral explanations must be viewed in the light most favorable to the trial court's findings." Id."`[A]ny reason which is not facially violative of equal protection will suffice....'" Lynch, 877 So.2d at 1271(¶ 49) (quoting Randall v. State, 716 So.2d 584, 588(¶ 16) (Miss.1998)).

¶ 6. We combine Avant's first two issues as they are interrelated. As observed in the earlier portion of this opinion, Avant's first issue involves the explanations given by the State for striking certain veniremen and the court's acceptance of those explanations as race neutral. The second issue involves the refusal of the court to allow interrogation of those veniremen for the purpose of ascertaining the verity of the reasons given by the State for striking the veniremen.

¶ 7. Our review of the record supports the State's assertion that the reasons offered by the State were race-neutral and that the trial court did not err in ruling accordingly. We review the explanations given in support of the peremptory strikes. The first juror that was struck was Kenneth Richardson, and the prosecutor gave the following explanation for striking Richardson:

KELLY: Peremptory number 1 was against Kenneth Richardson who told us that he grew up with the defendant, *381 they went to school together, and they, in fact, were good friends.
THE COURT: That is reflected by no notes as well, and the court will accept that as a race neutral reason.

¶ 8. The second strike was against Juror Bobby Walton, Jr. In support of this strike, the prosecutor gave the following explanation:

KELLY: Peremptory number 2 was used against Bobby Walton, Jr. who told us that he went to school with the defendant, that he was friends with the defendant, that he was familiar with the apartments where this alleged event occurred.
[THE COURT:] My notes do reflect those responses and the court will accept that as a race neutral reason.

¶ 9. The third juror that was struck was Melvin (Calvin) Dandridge. The following explanation was given for striking him:

KELLY: Mr. Dandridge, I am told by the deputy sheriff James Rudd, is the stepfather of two people who were indicted and have an indictment pending in this court for drug sales at Domino's Pizza. If, in fact, Mr. Rudd's information is accurate, then I think that is a race-neutral reason. Mr. Dandridge did not tell the court or the prosecution that any of his family members were being prosecuted. I think the court asked about the past. I don't think I asked about the present. So technically Mr. Dandridge has not misstated anything. But if, in fact, he has a stepson who is under indictment for drug sales at Domino's Pizza, I assert that's a race-neutral reason.
DEFENSE COUNSEL WALKER: Your Honor, in rebuttal, the state has offered no proof as to the knowledge of Melvin Dandridge, number 31, as to the allegations made by Mr. Kelly. I would request the court to ask Mr. Dandridge to come back and interrogate him as to that knowledge. That's my rebuttal. There's no proof that he knows anything about these drug indictments, or whether they've even been served.
THE COURT: Mr. Kelly says that he's been provided information by Mr. Rudd who is chief deputy in this county and one who is responsible for serving these indictments, and certainly Mr. Kelly is entitled to rely on information that is provided to him by third parties, in this case deputies with the sheriff's department. He doesn't have to prove that, but that information was provided to him. Certainly it is a race-neutral reason. As stated, it's been asked a number of ways. The record will reflect whether or not we asked about current prosecution. I do believe I normally phrase my question as to whether they or close members of their family have been prosecuted in the past. So I don't know that he was intentionally trying to mislead the court. As stated, the record will just have to bear out specifically what those questions are. But based on that information, the court will accept that a race-neutral reason, unless you have something to rebut that with.

¶ 10. The fourth and final venireman that was struck was Jerry Ballard, and the record reflects the following as the initial basis for striking him:

MR. KELLY: Juror number 44 is Mr. Jerry Ballard. I am told by Mr. Rudd or Jackie Smith or both that this person knows Mr. Avant's family.

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Related

Jackson v. State
962 So. 2d 649 (Court of Appeals of Mississippi, 2007)

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Bluebook (online)
896 So. 2d 379, 2005 WL 14900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avant-v-state-missctapp-2005.