Boggan v. State

894 So. 2d 581, 2004 WL 1662087
CourtCourt of Appeals of Mississippi
DecidedJuly 27, 2004
Docket2002-KA-02120-COA
StatusPublished
Cited by5 cases

This text of 894 So. 2d 581 (Boggan 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
Boggan v. State, 894 So. 2d 581, 2004 WL 1662087 (Mich. Ct. App. 2004).

Opinion

894 So.2d 581 (2004)

James D. BOGGAN a/k/a James Douglas Boggan, Appellant
v.
STATE of Mississippi, Appellee.

No. 2002-KA-02120-COA.

Court of Appeals of Mississippi.

July 27, 2004.
Rehearing Denied November 2, 2004.
Certiorari Denied March 3, 2005.

*583 James A. Williams, Meridian, attorney for appellant.

Office of the Attorney General by Charles W. Maris, attorney for appellee.

Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.

GRIFFIS, J., for the Court.

¶ 1. James D. Boggan was convicted of three counts of statutory rape and was sentenced to serve three concurrent thirty year terms in the custody of the Mississippi Department of Corrections. On appeal, Boggan asserts eight errors. Finding no merit to Boggan's appeal, we affirm. Because many of the issues actually fall under the same claim for relief, we combine our discussion of the related issues.

FACTS

¶ 2. Boggan, a twenty-year-old man, was indicted on three counts of statutory rape of a thirteen-year-old girl, B.K. Boggan became acquainted with B.K.'s family as a result of his close friendship with her oldest brother. Boggan was a friend, regular visitor, and occasional overnight guest of her family.

¶ 3. After B.K.'s mother noticed that Boggan acted differently around B.K., she asked Boggan not to return to their house. Shortly thereafter, B.K. and Joey, the younger of B.K.'s two older brothers, began sneaking out of their house to meet Boggan. Upon returning from the third of these meetings, B.K.'s mother caught B.K. sneaking back into the house. B.K. confessed to her mother that she had been sneaking out to see Boggan and that she had sex with Boggan on three separate occasions, during April and May of 2001.

¶ 4. At trial, B.K. testified that for a short time during April of 2001 she slept on the couch near her mother's bedroom because she was sick. Boggan awoke her on one of these nights, and they had sex on the couch. B.K. also testified that, in May of 2001, she began sneaking out of the house to meet Boggan. B.K. and Boggan used a telephone signaling scheme to know *584 when to meet. The scheme consisted of either Boggan or her calling, letting the phone ring once, and then hanging up. They would then meet afterwards. On one of these occasions, B.K. and Boggan had sex in a pasture near her house, and on the other occasion, they had sex in a barn near her house.

¶ 5. Joey testified that on one of the occasions he also met Boggan. He testified that on that occasion Boggan asked to have some time alone with B.K. to talk. He also testified regarding the phone signaling scheme.

¶ 6. Boggan testified that he stayed at B.K.'s house during April of 2001 and that he slept on the couch. However, he denied ever having sex with B.K. and denied sneaking out to meet her. According to Boggan's testimony, the reason B.K.'s mother asked him not to return to their house was because he mentioned to the mother that he may want to ask B.K. out for a date once she turned eighteen years old.

¶ 7. The jury found Boggan guilty on all three counts of statutory rape. Boggan's motion for a new trial was denied. He appeals his convictions and sentence.

ANALYSIS

I. Whether the trial court denied Boggan a fair trial, equal protection of the law, and due process.

a. Jury panel composed of over fifty percent females.

¶ 8. Boggan argues that he was denied a fair trial because over fifty percent of the jurors were female. Boggan claims that the State purposefully selected women to be on the jury and that the State's use of its peremptory challenges against males created an inference of purposeful discrimination. He argues that the trial court erred in failing to require the State to provide a non-gender reason for its peremptory challenges.

¶ 9. During jury selection, the State challenged two of the twelve eligible venire members. The court asked for objections following each challenge. In response to the first challenge, defense counsel responded: "Yes, sir. I don't know why. He never said a word. He never said a word." The court explained that he was asking if there was a gender, race, or religion objection. The defense counsel replied, "Yes, sir. He never said a word. There's no reason to." The court ruled that there was no prima facie case of racial, gender, or religious discrimination for striking the venire member. In response to the second challenge, defense counsel replied that there was no objection. The jury selection continued with Boggan exercising peremptory challenges on a female and then a male. After these challenges the jury of twelve was in place.

¶ 10. Based on our review of the jury selection, Boggan's defense counsel never voiced a gender discrimination objection to the State's use of its peremptory challenges. Defense counsel merely posed a general objection that there was no reason to challenge the first venire member. In Chase v. State, 645 So.2d 829, 843-44 (Miss.1994), our supreme court held that the failure to make a contemporaneous objection to challenges based on gender procedurally barred raising the issue on appeal. Boggan, by not raising a gender discrimination objection during jury selection, may not now raise the issue on appeal.

¶ 11. Even assuming the issue is properly before this Court, it is without merit. In order to establish a prima facie case of purposeful discrimination in jury selection a criminal defendant must show: (1) that he is a member of a "cognizable *585 racial group," (2) that the prosecutor has exercised peremptory challenges toward the elimination of venire members of his race, and (3) that the facts and circumstances raised an inference that the prosecutor used his peremptory challenges for the purpose of striking minorities. Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987). Once the prima facie case of purposeful discrimination is met, the State is compelled to come forward with a neutral explanation. Batson, 476 U.S. at 97, 106 S.Ct. 1712, Lockett, 517 So.2d at 1349. The trial court should then determine, on the record, whether each of the State's reasons for striking minority jurors is, in fact, racially neutral. Conerly v. State, 544 So.2d 1370, 1372 (Miss.1989).

¶ 12. Although Batson, Lockett, and Conerly all concerned racial discrimination, our supreme court has held that all of the case law following Batson also applies to gender discrimination issues. Bounds v. State, 688 So.2d 1362, 1366 (Miss.1997).

¶ 13. A great deal of deference is accorded to the trial court in examining alleged discrimination when exercising peremptory challenges. Spann v. State, 771 So.2d 883, 904(¶ 61) (Miss.2000). We, as an appellate court, will not reverse factual findings relating to a Batson challenge unless they are clearly erroneous. Johnson v. State, 529 So.2d 577, 583 (Miss.1988).

¶ 14. The trial court ruled that Boggan failed to establish a prima facie case of gender discrimination. The court based this ruling on the defense counsel's failure to allege any gender discriminatory objections to the State exercising its peremptory challenges. The record supports this finding. We find no error in the trial court's ruling that Boggan failed to establish a prima facie case of gender discrimination.

¶ 15.

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Cite This Page — Counsel Stack

Bluebook (online)
894 So. 2d 581, 2004 WL 1662087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boggan-v-state-missctapp-2004.