Fisher v. State

989 So. 2d 893, 2007 WL 2917395
CourtCourt of Appeals of Mississippi
DecidedOctober 9, 2007
Docket2005-KA-01886-COA
StatusPublished

This text of 989 So. 2d 893 (Fisher 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
Fisher v. State, 989 So. 2d 893, 2007 WL 2917395 (Mich. Ct. App. 2007).

Opinion

989 So.2d 893 (2007)

Charles Isaac FISHER, Jr., Appellant
v.
STATE of Mississippi, Appellee.

No. 2005-KA-01886-COA.

Court of Appeals of Mississippi.

October 9, 2007.
Rehearing Denied April 29, 2008.
Certiorari Denied August 28, 2008.

*894 Carrie A. Jourdan, attorney for appellant.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

EN BANC.

LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On August 19, 2004, Charles Fisher struck Monessa Bardley with his automobile. Bardley was hospitalized and treated for serious injuries, including a pelvic fracture. At the time of the incident, Fisher and Bardley had been involved in a relationship for over four years and had three children. By all accounts the relationship was tempestuous and both parties alleged that the other had instigated this particular altercation.

¶ 2. On August 16, 2005, a jury in the Lowndes County Circuit Court found Fisher guilty of aggravated assault. Fisher was then sentenced to serve eighteen years in the custody of the Mississippi Department of Corrections. Fisher subsequently filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. After this motion was denied by the trial court, Fisher appealed to this Court asserting that the trial court erred in upholding certain peremptory strikes of potential jurors made by the State, thus he was denied a fair trial.

DISCUSSION

¶ 3. In his sole issue on appeal, Fisher argues that the trial court denied him a fair trial by upholding certain peremptory strikes of two potential jurors by the State when these particular strikes were used in a racially discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), provides procedural directives for the trial court to follow in detecting and disallowing the practice of using peremptory challenges to remove members of an identified racial group from jury service based upon nothing more than their racial identification. To successfully assert a Batson claim, the following procedure must occur:

*895 First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Berry v. State, 728 So.2d 568, 572(¶ 11) (Miss.1999) (citing Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)).

¶ 4. Our standard of review requires a reversal only if the factual findings of the trial judge are "clearly erroneous or against the overwhelming weight of the evidence." Tanner v. State, 764 So.2d 385, 393(¶ 14) (Miss.2000). Any determination made by a trial judge under Batson is accorded great deference because it is "based, in a large part, on credibility." Coleman v. State, 697 So.2d 777, 785 (Miss. 1997). The term "great deference" has been defined in the Batson context as meaning an insulation from appellate reversal of any trial findings which are not clearly erroneous. Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987).

¶ 5. Our supreme court "has recognized five indicia of pretext that are relevant when analyzing the race-neutral reasons offered by the proponent of a peremptory strike," specifically:

(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge; (2) the failure to voir dire as to the characteristic cited ... (3) the characteristic cited is unrelated to the facts of the case; (4) lack of record support for the stated reason; and (5) group-based traits.

Flowers v. State, 947 So.2d 910, 917(¶ 9) (Miss.2007) (citing Manning v. State, 765 So.2d 516, 519(¶ 9) (Miss.2000) (citations omitted)).

¶ 6. During jury selection, Fisher, a black male, raised a Batson objection. The State had used four of its peremptory strikes on black females, leaving the jury panel void of any minorities other than one of the alternates. The record is unclear as to the exact size and racial makeup of the jury pool. The trial judge did make a comment during a motion hearing about the jury panel being majority white. In his brief, Fisher focuses on two of the jurors who were struck, namely Juror S-2, a black female, and Juror S-3, a black female. We find it helpful to include the pertinent portions of the trial transcript relating to the Batson challenge. In advancing race-neutral reasons for striking Juror S-2 and Juror S-3, the following exchange occurred between the prosecution, Ms. Hayes-Ellis, the trial judge and Fisher's trial counsel, Ms. Jourdan:

BY MS. HAYES-ELLIS: With regard to S-2, Your Honor, she is essentially around the same age group as this defendant. And in speaking with the victim, we believe that there may have been some dealing of some sort, we're not quite sure, between — if not specifically with this defendant, but some dealings around that way and also with regard to her occupation.
BY THE COURT: Age and occupation are your race neutral reasons. She's a sitter.
BY MS. HAYES-ELLIS: Yes, sir.
BY MS. JOURDAN: Well, Your Honor, we —
BY THE COURT: Anything further on that one?
BY MS. JOURDAN: Your Honor, I would say that the information from the *896 victim has already proved to be not half [sic] a strong indicia of credibility already as it relates to Mr. Thornton.
BY THE COURT: She [Juror S-2] didn't respond.
BY MS. JOURDAN: A bunch of the jurors didn't respond, and they're not being struck for that reason.
BY THE COURT: Age is the primary reason you gave me.
BY MS. HAYES-ELLIS: Yes, sir.
BY THE COURT: That is a race neutral reason.
BY MS. JOURDAN: Your Honor, there are other members of the panel the same age as Mr. Fisher.
BY THE COURT: That though is a race neutral reason. Next?
BY MS. HAYES-ELLIS: Your honor, with regard to S-3, juror 19, if I'm not mistaken, Your Honor is also around the same age with this particular defendant, and the victim has had some — as she put it, some — I think there has been an altercation between this person and the victim, if I have this as the right person. But —
BY THE COURT: You're supposed to have it as the right person.
BY MS. HAYES-ELLIS: Yes, sir. My recollection is that she is the one. But in addition to that, there was also — in regards to the occupation and the age was basically the reason that we struck her.
BY THE COURT: She is a housekeeper. Her age is about the same age, and that she has had prior dealings with your victim.
BY MS. HAYES-ELLIS: Yes, sir. And there was also some issues, Your Honor, regarding whether or not this is the last name that our office has dealt with.

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Related

Batson v. Kentucky
476 U.S. 79 (Supreme Court, 1986)
Hernandez v. New York
500 U.S. 352 (Supreme Court, 1991)
Tanner v. State
764 So. 2d 385 (Mississippi Supreme Court, 2000)
Johnson v. State
754 So. 2d 1178 (Mississippi Supreme Court, 2000)
Lockett v. State
517 So. 2d 1346 (Mississippi Supreme Court, 1987)
Hatten v. State
628 So. 2d 294 (Mississippi Supreme Court, 1993)
Berry v. State
728 So. 2d 568 (Mississippi Supreme Court, 1999)
McFarland v. State
707 So. 2d 166 (Mississippi Supreme Court, 1998)
Lynch v. State
877 So. 2d 1254 (Mississippi Supreme Court, 2004)
Flowers v. State
947 So. 2d 910 (Mississippi Supreme Court, 2007)
Davis v. State
660 So. 2d 1228 (Mississippi Supreme Court, 1995)
Coleman v. State
697 So. 2d 777 (Mississippi Supreme Court, 1997)
Manning v. State
765 So. 2d 516 (Mississippi Supreme Court, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
989 So. 2d 893, 2007 WL 2917395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-state-missctapp-2007.