Chisolm v. State

529 So. 2d 635, 1988 WL 80193
Mississippi Supreme Court·Decided July 27, 1988·No. 57827·Published·Cited by 135 cases

Opinion

529 So.2d 635 (1988)

Rickey CHISOLM
v.
STATE of Mississippi.

No. 57827.

Supreme Court of Mississippi.

July 27, 1988.

*636 Robert M. Logan, Jr., Gerald, Brand, Watters, Cox & Hemleben, Newton, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by George W. Neville, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PRATHER, ROBERTSON and ZUCCARO, JJ.

ROBERTSON, Justice, for the Court:

I.

As in what for all practical purposes is a companion case, see Chisolm v. State, 529 So.2d 630, 632 (1988) (Chisolm I), this armed robber/defendant presents a claim that the prosecuting attorney practiced racial discrimination in the exercise of peremptory challenges of prospective jurors. The issue is a bit more difficult than in Chisolm I, as several of the purportedly racially neutral reasons here offered for challenges appear rather specious. In the end, we find that defendant wholly failed to unmask the prosecutor's "reasons" when offered opportunity for rebuttal. We affirm.

II.

This is Rickey Chisolm's second appearance before this Court in as many weeks.[1] The charge is the same: armed robbery. Indeed, the victim is the same: seventy-one-year-old Verner Lee Gatewood of the Lillian community, eleven miles from Forest in rural Scott County.

Gatewood was on his tractor inspecting timber for beetles around 1:30 p.m. on September 27, 1984, when two masked men ran out of the woods brandishing pistols. While the men pointed their guns at Gatewood's head, one of them deprived their hapless victim of his pocketbook (containing approximately $160.00) and watch. They then ordered Gatewood to prostrate himself whereupon they proceeded to tape his wrist, ankles and mouth. This done, one of the perpetrators said to the other, *637 "Let's go to the store, now and rob it," and both fled.

The wallet was later recovered near some tire tracks in the woods, a $100 bill still tucked away in a secret compartment. The toboggan-style masks were also found discarded in the woods.

On May 8, 1986, the Scott County Sheriff's Office took Rickey Chisolm into custody.[2] Chisolm was being held in Canton as a suspect on a capital murder charge. Before that, he was being held in Louisiana for disturbing the peace. Chisolm gave a statement implicating Nathaniel Moore and himself in the robbery of Gatewood. According to the statement, Moore was armed with a real gun while Chisolm held a toy gun.

Chisolm was indicted on February 27, 1985, in Scott County for armed robbery. The case was moved to Hinds County on a motion for change of venue. On August 25, 1986, Chisolm was found guilty of armed robbery and sentenced to thirty (30) years imprisonment. He now brings this appeal.

III.

Chisolm argues first that the Circuit Court erred in allowing the prosecution to exclude prospective jurors by peremptory challenges based on race. He relies, of course, on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which held that a prosecutor's peremptory challenge of a black juror violates the Equal Protection Clause where done for a racially discriminatory purpose.

Among the few clues Batson gives how we are to enforce the new claim it announces, we are directed to concentrate on the juror excluded, not those accepted (except, of course, when comparing the bases for exclusion). Batson tells us

`A single individiously discriminatory governmental act' is not `immunized by the absence of such discrimination in the making of other comparable decisions'. 476 U.S. at 95 [106 S.Ct. at 1722], 90 L.Ed.2d at 87.

That the prosecutor accepted other black persons as jurors is no defense to a Batson claim.

Batson recognizes a further analogy in Title VII or employment discrimination cases, stating "A `pattern'

of strikes against black jurors included in the particular venire might give rise to an inference of discrimination."

Batson, 476 U.S. at 94-96, ns. 18 & 19, 106 S.Ct. at 1721-22, ns. 18 & 19, 90 L.Ed.2d at 86-87, ns. 18 & 19. See also McCleskey v. Kemp, 481 U.S. 279- ___, 107 S.Ct. 1756, 1767-68, 95 L.Ed.2d 262, 279-80 (1987) (statistical disparities may be used as proof of an equal protection violation in jury selection cases). We accepted the employment discrimination analogy in Lockett v. State, 517 So.2d 1346, 1349 (Miss. 1987).

Though instructive in the abstract, none of this carries us far today.

Factually, Chisolm is black. The jury which tried him was composed of eight white persons and four black persons, with one white alternate. The prosecuting attorney exercised ten peremptory challenges. Nine of those were used to exclude black persons from the jury. Five of these were because the prospective juror was unemployed like Chisolm and the prosecuting attorney suggested that these jurors might identify with Chisolm. Another was purportedly involved in illegal activities. One was excused because of some labor union difficulties. Another was excused because he raised his hand when asked if he or anyone in his family had ever been accused of a crime.

We are concerned particularly with the remaining two black prospective jurors who were excused, Earnest Seals and Vivian Payne. In the course of the prosecution's reasons for these two peremptory challenges, the following colloquy between the Circuit Court and the district attorney took place:

BY THE COURT:
Why did you excuse Earnest Seals?
BY MR. PEARCE:
*638 Your Honor, he works for Mississippi ETV, and the district attorney over here has told me that Mississippi ETV has done two documentaries on law enforcement in Hinds County which was very unfavorable to the law enforcement.

Then in the case of prospective juror Payne, the following took place:

BY THE COURT:
Vivian Payne, why did you excuse her?
MR. PEARCE:
The district attorney here referred to a radio station documentary that was unfavorable to law enforcement, in general, and her husband works for the radio station.

As in Chisolm I, there can be no doubt that Chisolm made his prima facie showing of purposeful discrimination in the selection of the jury. To review briefly, the components of such a prima facie showing are that

(1) the defendant is a member of a cognizable racial group;
(2) the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race; and
(3) these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the venireman from a petit jury on account of their race.

See Batson v. Kentucky, 476 U.S. 79, 95-98, 106 S.Ct. 1712, 1722-1723, 90 L.Ed.2d 69, 87-88 (1986); Chisolm I, 529 So.2d at 632 (and cases cited therein).

Once the defendant has made his prima facie showing, the burden shifts to the prosecution to come forward with a racially neutral explanation for each of his challenges. <

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Chisolm v. State, 529 So. 2d 635, 1988 WL 80193 (Mich. 1988).

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