IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-CA-00596-SCT
H.A.S. ELECTRICAL CONTRACTORS, INC.
v.
HEMPHILL CONSTRUCTION COMPANY, INC.
DATE OF JUDGMENT: 03/24/2015 TRIAL JUDGE: HON. JOHN HUEY EMFINGER TRIAL COURT ATTORNEYS: JIM L. DAVIS, III DAVID BONDS ELLIS DANNY ALTON DRAKE COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JIM L. DAVIS, III ATTORNEYS FOR APPELLEE: DAVID BONDS ELLIS DANNY ALTON DRAKE NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: REMANDED WITH DIRECTIONS - 06/02/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
MAXWELL, JUSTICE, FOR THE COURT:
¶1. During jury selection, plaintiff H.A.S. Electrical Contractors (HAS) challenged
defendant Hemphill Construction Company’s use of two peremptory strikes. HAS argued
Hemphill’s strikes were racially discriminatory.
¶2. HAS’s race-based objections triggered a three-step Batson1 analysis. But the record
1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). shows the trial court failed to follow the Batson criteria when analyzing the challenged strike
of Juror 7. We remand this case to the trial court for a limited Batson hearing for Juror 7.
On remand, the court should determine if HAS can meet its burden to prove purposeful
discrimination in Hemphill’s exercise of that peremptory strike—i.e., was Hemphill’s stated
reason for the strike (age) merely pretext for discrimination.
¶3. We retain jurisdiction of this case pending the outcome of that hearing. Once the
results are certified, we will review the trial court’s Batson determination for Juror 7 and
address HAS’s remaining issues on appeal.
Procedural Background
I. Suit and Countersuit
¶4. This is a breach-of-contract case involving a subcontract for electrical work for a state
park in Waveland, Mississippi. Subcontractor HAS Electrical Contractors, Inc., sued
contractor Hemphill Construction Company, Inc., for breach of contract, quantum meruit,
and conversion. HAS requested $570,678.71 in compensatory damages, plus attorney’s fees,
costs, and punitive damages. Hemphill countersued, seeking $23,677.04 in damages.
Hemphill also asked for attorney’s fees and expenses under the subcontract.
II. Jury Selection
¶5. The dispute went to a jury trial. The trial court gave both HAS and Hemphill four
peremptory strikes to use in selecting the twelve-member jury.2 HAS used two of its strikes
2 The parties were asked to select from two twelve-member panels. Of the twenty- four potential jury members, four were African-American and the remaining twenty were Caucasian.
2 without objection. The twelve venire members HAS had accepted were then tendered to
Hemphill. Hemphill accepted Jurors 1-3 and 5-6, all white females.3 Hemphill then used a
strike on Juror 7, Don R. Taylor, a black male. HAS interjected, “Judge, we’ll just point out
that is the first black we have reached on the panel.” The court then asked, “Anything
further?”
HAS: Judge, we – I guess we would go ahead and ask for a race neutral reason because it is the first black we have reached on panel at this time of the venire.
Court: Well, I don’t see how in the world you can have a pattern after one strike, but I will, as I believe the cases say, that I should ask you for a race neutral reason for Number 7, Taylor.
Hemphill: Your Honor, we – my reason, race neutral or otherwise, was age. We just thought he was – we would prefer not to have an older jury panel.
Court: Any response?
HAS: They had accepted Number 2, who is 68 years old, and Number 5 [who] was 62 years old, but they were both white.
Court: All right. Well, I believe that there’s not a pattern. That’s the first person – that’s the first black that’s been presented. I don’t believe that there’s any pattern possible. The older venire, whether there’s one or two, or three, I don’t believe that’s a good reason so I’m going to – I’m going to recognize the strike.
¶6. Hemphill then accepted Jurors 8, a black female, and Juror 9, a black male. Hemphill
also accepted Jurors 11 and 12, both white females.4 Hemphill then struck Juror 13, Rodney
Calhoun, a black male.
3 HAS had struck Juror 4, a white male. 4 HAS also had struck Juror 10, a white male.
3 ¶7. Once again, HAS objected:
HAS: He’s only used two strikes and they’ve both been on blacks, your Honor. And we’ve only reached four blacks at this time and he has struck 50 percent of them.
...
Court: All right. . . . I’ll hear from you on your Batson.
HAS: Judge, of course, he has now struck Mr. Calhoun. The blacks that we have reached on jury venire, Number 7, Don Taylor; Number 8, Kadreanna Johnson; Number 9, Mr. Anderson, and; Number 13, Mr. Calhoun. Today, he has only used two strikes at the time we were at Juror Number 13, and both of them were on black males, and there has only been four blacks reached on the venire at this time and he has struck 50 percent of them.
Court: All right. I will note for the record that Juror Number 7, that was D1, is a black male; Juror Number 8, that was accepted, is a black female; Juror Number 9, that was accepted, is a black male, and; Juror Number 13 is a black male. So, to my count, there have been four blacks tendered. He’s exercised strikes on two and accepted two. I don’t believe that that is a pattern showing discrimination, but I’m going to ask for a race neutral reason relative to Juror Number 13.
Hemphill: He showed his employer as Labor Ready. There’s a number of issues here about, in this case, about part-time and temporary employees and we think that would – he would have a bias toward the Plaintiff in this matter.
Court: What says the Plaintiff?
HAS: One second, your Honor. We wouldn’t accept that as a race neutral reason, your Honor.
Court: You said you do?
HAS: Do not. Would not.
Court: All right. I do. I’m going to uphold the strike on that.
4 ¶8. Neither side used any more peremptory strikes. Jurors 14-17, two white females and
two white males, completed the jury panel. And Jurors 18 and 19, both white males, were
selected as alternates.
III. Verdict and Award
¶9. At the end of trial, the jury found in Hemphill’s favor on both HAS’s claims and
Hemphill’s counterclaim. While the jury awarded Hemphill no money damages, the trial
court awarded Hemphill $90,000 in attorneys fees and expenses. The trial judge based the
award on “prevailing party” language in the subcontract.
Issues on Appeal
¶10. On appeal, HAS argues for a new trial, insisting the trial judge failed to conduct a
proper Batson hearing during jury selection. See Batson v. Kentucky, 476 U.S. 79, 89, 106
S. Ct. 1712, 1719, 90 L. Ed. 2d 69 (1986). HAS claims the trial court failed to complete the
required three-step Batson analysis because it did not consider if Hemphill’s stated race-
neutral reason was persuasive. Instead, it argues the court wrongly dismissed HAS’s Batson
challenges for “failure” to establish a pattern of discrimination.
¶11. Alternatively, HAS requests we vacate the award of attorneys fees. HAS suggests
Hemphill was not the “prevailing party” because the jury awarded Hemphill no money
damages.
Discussion
¶12. At this juncture, we address the Batson issue only. While we find no Batson error
connected to Juror 13, we do agree with HAS that the trial court failed to conduct a proper
5 Batson hearing for Juror 7. And we remand for the limited purpose of holding such a
hearing.
I. Batson’s Three-Part Analysis
¶13. The privilege to use peremptory strikes “is subject to the commands of the Equal
Protection Clause.” Batson, 476 U.S. at 89, 106 S. Ct. at 1719, 90 L. Ed. 2d 69. The Equal
Protection Clause prohibits using peremptory strikes to engage in racial discrimination. Id.
While Batson addressed a prosecutor’s use of peremptory strikes in a criminal case, the same
prohibition applies when selecting juries in civil cases. E.g., Burnett v. Fulton, 854 So. 2d
1010, 1013-14 (Miss. 2003) (applying Batson to medical-malpractice case).
¶14. To safeguard against racial discrimination in jury selection, the United States Supreme
Court in Batson established a three-step process. Pitchford v. State, 45 So. 3d 216, 224
(Miss. 2010) (citing Batson, 476 U.S. 79). First, the party objecting to the use of a
peremptory strike has the burden to make a prima facie case that race was the criterion for
the strike. Second, if the objecting party makes such a showing, the burden shifts to the
striking party to state a race-neutral reason for the strike.5 Third, after the striking party
offers its race-neutral explanation, the court must determine if the objecting party met its
burden to prove purposeful discrimination in the exercise of the peremptory strike—that the
5 Race-neutral reasons previously accepted by this court include, but are not limited to, “age, demeanor, marital status, single with children, prosecutor distrusted juror, educational background, employment history, criminal record, young and single, friend charged with crime, unemployed with no roots in community, posture and demeanor indicated juror was hostile to being in court, juror was late, short term employment[,]” and defense distrusted juror. Hardison v. State, 94 So. 3d 1092, 1098 (Miss. 2012) (quoting Davis v. State, 660 So. 2d 1228, 1242 (Miss. 1995)).
6 stated reason for the strike was merely a pretext for discrimination. Id.
¶15. On appeal, we “afford[] great deference to the trial court’s findings of whether a
peremptory challenge was race neutral . . . because finding that a striking party engaged in
discrimination is largely a factual finding.” Berry v. State, 802 So. 2d 1033, 1038 (Miss.
2001) (citations omitted). But to reach that finding, the trial judge must conduct a proper
Batson analysis. E.g., Hardison v. State, 94 So. 3d 1092, 1099 (Miss. 2012) (reversing jury
verdict because trial court failed to proceed to step three of Batson analysis after being
offered a race-neutral reason for the strike).
¶16. Normally, we would begin our review with step one and ask if HAS established a
prima facie case that race was the reason for both strikes. But this court follows the United
States Supreme Court’s procedure in Hernandez v. New York, 500 U.S. 352, 355-59, 111
S. Ct. 1859, 114 L. Ed. 2d 395 (1991). Pruitt v. State, 986 So. 2d 940, 943-44 (Miss. 2008).
Under Hernandez, “once reasons are offered by the proponent [of the strike], the issue of
whether a prima facie case of discrimination has been developed is moot.” Hughes v. State,
735 So. 2d 238, 250 (Miss. 1999) (citing Hernandez, 500 U.S. at 359). And we shift our
focus to step two. Berry v. State, 802 So. 2d 1033, 1037 (Miss. 2001).
¶17. Here, though the trial court did not buy HAS’s discrimination-based objections to
striking Juror 7 and Juror 13, the court still required Hemphill to articulate a race-neutral
reason for both strikes. So the issue of whether HAS met its burden to establish a prima facie
case is moot. We begin our review with step two.
II. Juror 7
7 ¶18. All step two required was that Hemphill state a race-neutral reason for the strike.
Hardison, 94 So. 3d at 1099-1100. Hemphill claimed it struck Juror 7, Taylor, because of
his age—an accepted race-neutral reason. Id. at 1099; see also Stewart v. State, 662 So. 2d
552, 558 (Miss. 1995). This prompted step three of Batson.
¶19. Under this step, once “the [striking] party offers a valid race-neutral reason, the trial
judge must allow the strike unless the other party demonstrates that the valid race-neutral
reason was a pretext for discrimination.” Hardison, 94 So. 2d at 1100. One way to “attempt
to refute the other party’s race-neutral reason [is] by ‘pointing out that similar claims can be
made about non-excluded jurors.’” McFarland v. State, 707 So. 2d 166, 172 (Miss. 1997).
And here, when asked to rebut Hemphill’s race-neutral reason, HAS pointed out that two
nonexcluded white jurors, Juror 2 and Juror 5, were similar in age to Taylor.6
¶20. The trial court failed to consider HAS’s argument, mistakenly requiring HAS to prove
a pattern of discrimination, instead of pretext. This was error. “[O]nly one instance—not
a consistent pattern—of purposeful discrimination is enough to prove a discriminatory
purpose.” McGee v. State, 953 So. 2d 211, 215 (Miss. 2007). So to meet its burden, HAS
did not have to show a pattern. Instead, once Hemphill offered a race-neutral reason for
striking Taylor, HAS’s burden was “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.” Pitchford, 45 So. 3d at 224.
¶21. Had step three been conducted properly, HAS would have been permitted to argue and
6 While the record does not establish Taylor’s age, HAS stated in its brief that Taylor was sixty-three years old. And Hemphill has not contested this assertion.
8 develop its theory that Taylor’s age was a pretext for discrimination. And Hemphill would
have been required to explain why, if it did not want “an older jury,” it accepted two white
jurors in their sixties. But step three was cut short due to the trial court’s erroneous pattern
belief. Thus, the record remains unclear on the ultimate question the trial court was tasked
with deciding—whether Hemphill’s stated reason for striking Taylor was race-neutral or
merely a pretext for purposeful discrimination. See Pruitt, 986 So. 2d at 944. For this
reason, we find remand necessary to afford HAS a full hearing on its claim Hemphill’s strike
of Taylor was discriminatory.
III. Juror 13
¶22. But Juror 13, Calhoun, presents a different story. As with Juror 7, the trial court was
not persuaded HAS had made a prima facie case. But as with Juror 7, this issue is moot
because the judge required Hemphill to state a race-neutral reason. Id. at 943-44; Hughes,
735 So. 2d at 250. And once again, Hemphill did. Calhoun worked for a temporary-
employment company, and the case involved issues of part-time and temporary employment.
Thus, Hemphill was concerned Calhoun would be biased against it. See Foster v. State, 639
So. 2d 1263, 1280 (Miss. 1994) (listing employment history and type of employment as
accepted race-neutral reasons).
¶23. Significantly, at this point, the judge gave HAS the opportunity to rebut Hemphill’s
race-neutral reason and persuade him why the reason was pretextual. But in contrast to
Juror 7, HAS provided no rebuttal. Instead, HAS simply informed the judge it did not
“accept that as a race-neutral reason.”
9 ¶24. Under step three of Batson, “[t]he burden remains on the opponent of the strike to
show that the race-neutral explanation given is merely a pretext for racial discrimination.”
Hicks v. State, 973 So. 2d 211, 219 (Miss. 2007) (citing Berry v. State, 802 So. 2d 1033,
1042 (Miss. 2001)). And “[w]hen the [objecting party] offers no rebuttal, the court is forced
to examine only the reasons given by the [striking party].” Bush v. State, 585 So. 2d 1262,
1268 (Miss. 1991); see also Johnson v. State, 529 So. 2d 577, 584 (Miss.1988) (finding “the
lack of any rebuttal” to the striking party’s stated race-neutral reason “significant”). HAS
made absolutely no attempt to meet its burden to prove Hemphill’s reason for striking Juror
13 was pretextual.7
¶25. Thus, we find no error or unclarity here in the circuit judge’s accepting Hemphill’s
stated reason to strike Juror 13 as nondiscriminatory. Unlike with Juror 7, no further
examination for pretext was required. Bush, 585 So. 2d at 1268.
¶26. Because the trial court did not err in its Batson analysis of Juror 13, we do not disturb
the trial court’s determination that the strike of Juror 13 was nondiscriminatory. We remand
the question of striking Juror 7 only.
Conclusion
¶27. On remand, the trial court should conduct the third step of Batson analysis for Juror 7.
HAS should be allowed the opportunity to prove purposeful discrimination—i.e., Hemphill’s
7 While the dissent would suggest otherwise, when conducting Batson’s third step, the burden remains on the strike’s opponent to show the given race-neutral explanation is pretext for discrimination. Hicks, 973 So. 2d at 219 (citing Berry, 802 So. 2d at 1042). Because HAS’s attorney made no attempt to show pretext, under our discretionary review, we do not second-guess the judge’s accepting Hemphill’s race-neutral reason for striking Juror 13.
10 race-neutral reason for striking Taylor was pretextual. And Hemphill should be permitted
to defend its stated reason for striking Taylor—age. But Hemphill is restricted from giving
any new, race-neutral reason to justify the strike. Further, to support their arguments, both
parties are limited to using the record as it existed at the time of the original Batson hearing.
¶28. This court retains jurisdiction of this case pending the trial court’s certified results of
the Batson hearing. We will then review the trial court’s Batson ruling for Juror 7, along
with the other appellate issues not addressed in this opinion.
¶29. REMANDED WITH DIRECTIONS.
WALLER, C.J., DICKINSON, P.J., LAMAR, COLEMAN AND BEAM, JJ., CONCUR. RANDOLPH, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY BEAM, J.; DICKINSON, P.J., LAMAR, COLEMAN AND MAXWELL, JJ., JOIN IN PART. KING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.
RANDOLPH, PRESIDING JUSTICE, CONCURRING:
¶30. The purpose of Batson8 and its progeny is the eradication of purposeful discrimination
due to prejudice, animus, or bias reflected in the intentional exclusion of jurors based on their
race. It is a struggle that plays out daily in courtrooms across our nation.9 Our system
8 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 69 (1986), extended to gender-based strikes by J.E.B. v. Alabama, 511 U.S. 127, 141, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). 9 The concept of purposeful discrimination is not relegated to one side or to one race. All of HAS’s strikes were against whites, but because Hemphill failed to raise a Batson challenge, HAS’s strikes are not before this Court on appeal. When asked at oral argument why HAS wanted the two challenged African Americans on the jury, counsel replied that he likes minorities and finds them more sympathetic to his clients. HAS’s counsel admitted that he selects jurors based on color, but that he “always makes sure he has good notes to justify [his strikes]” and is prepared to argue accordingly. This revelation begs the question whether HAS claims that Hemphill’s strikes were in fact racially motivated or whether HAS’s
11 designates trial judges to oversee compliance—a most difficult task, given that attorneys are
“mak[ing] sure [they have] good notes to justify [their strikes].” It is the responsibility of the
trial judge to observe the jury-selection process, which includes, inter alia, the conduct and
activity of the parties and attorneys in prior cases, the interplay between attorneys and
potential jurors, and the demeanor of all, and ultimately to evaluate the credibility of all.
Justice King’s dissent correctly directs the trial court to consider “all of the circumstances
that bear upon the issue of racial animosity.” (Diss. Op. at ¶ 37) (quoting Snyder v.
Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008)). Snyder further
holds “that these determinations of credibility and demeanor lie peculiarly within a trial
court’s province, and . . . in the absence of exceptional circumstances, we would defer to the
trial court.” Snyder, 552 U.S. at 477 (internal citations omitted). That being said, it is
incumbent upon our trial judges to understand and follow the mandates of Batson and its
progeny, and to adhere meticulously to the prescribed process.
¶31. Batson challenges should be analyzed step-by-step. First, the party contesting the
strike must make a prima facie showing that the juror’s race was the criterion for the strike.
Birkhead v. State, 57 So. 3d 1223, 1230 (Miss. 2011). A prima facie showing is made by
producing evidence sufficient to permit the trial judge to draw an inference based on the
totality of the circumstances that the strike was racially motivated. See id. If, and only if, the
court is satisfied that a prima facie showing has been made, then the party exercising the
objections were based on the fact that, since it struck jurors based on race, Hemphill must have done the same thing. While offering no insight for the trial judge or this Court, this revelation nevertheless illuminates how difficult it is for any judge to sort out the truth.
12 strike must offer a race-neutral reason for the strike. Once a race-neutral reason is offered,
the opposing party may offer rebuttal. See id. at 1229 (citing Berry v. State, 802 So. 2d 1033,
1037 (Miss. 2001)). At this stage, the trial court should make a factual finding and conclude
whether the strike should stand or whether the stated reason was pretextual, i.e., a disguise
for purposeful racial discrimination.10 If the opposing party fails to rebut, the trial judge’s
decision should be based on the stated reason.11 See id.; Hardison, 94 So. 3d at 1098.
¶32. In the case sub judice, when faced with a Batson challenge, the trial judge mistakenly
found there was no basis for the objection, as no pattern could be established. As the majority
opinion holds, evidence of a pattern of discriminatory strikes is but one factor a court should
consider when determining whether the opponent of a strike has made a prima facie showing
of discrimination; it is not a required factor. (Maj. Op. at ¶ 20) (citing McGee v. State, 953
So. 2d 211, 215 (Miss. 2007)). See also People v. Davis, 803 N.E.2d 514, 522 (Ill. App. Ct.
2004) (“If the absence of a ‘pattern of strikes’ were enough, in and of itself, to defeat the
establishment of a prima facie showing of discrimination under Batson, this would
effectively enable a prosecutor to exercise at least one peremptory challenge in a
discriminatory manner. Such a possibility is untenable in light of the fact that, pursuant to
10 At this step, the trial court must make credibility findings, for the trial court is “uniquely in a position to observe the demeanor and assess the credibility” of the attorneys during jury selection as well as the demeanor of the potential jurors—observations that a blank record fails to reveal. See Birkhead, 57 So. 3d at 1230; Booker v. State, 5 So. 3d 356, 360 (Miss. 2008). 11 I agree with Justice Maxwell’s majority opinion that, because HAS failed to rebut the race-neutral reason offered for the second strike, the Batson hearing on remand should be limited to the first Batson challenge.
13 Batson and its progeny, the exclusion of just one venireperson on account of race is
unconstitutional and requires reversal of the conviction.”).
¶33. Based on the record before us, it is unclear whether the trial court ruled that HAS had
established a prima facie showing that racial animosity was the criterion for Hemphill’s first
strike, as the proceedings drifted into the second stage of a Batson analysis. While pondering
the lack of a pattern, the trial judge nevertheless required Hemphill to offer a race-neutral
reason for its strike.12 The trial judge failed to address any other factor it considered in
ascertaining whether HAS had made its prima facie showing.13 Rather than proceeding
methodically through the required three-step Batson procedure, the trial court collapsed the
12 HAS’s attempted rebuttal of Hemphill’s reason for its first strike (not wanting a jury panel composed of older persons) was that Hemphill had accepted two similarly aged jurors. HAS’s argument is based on facts not in the record. Two unidentified female jurors are said to have been 62 and 68 years old, and while HAS argues in its brief that the challenged juror was 63, his age is undisclosed in the recorded voir dire. Included in HAS’s motion for new trial is a list of potential jurors, their races, and their genders, which is not contained anywhere else in the record, nor is it supported by any evidence. The juror information cards were not made a part of the record. We cannot consider facts outside the record. See Greenwood Leflore Hosp. v. Miss. State Dep’t of Health, 980 So. 2d 931, 936 (Miss. 2008) (citing In re City of Jackson, 912 So. 2d 961, 971 (Miss. 2005)). 13 HAS objected when Hemphill exercised its first strike against the first black juror on the panel and stated “I guess we would go ahead and ask for a race neutral reason because it is the first black we have reached on panel at this time of the venire.” But HAS had no right to ask for a race-neutral reason. Only if the court found a prima facie showing had been made was it to ask for a race-neutral basis for the strike. Both parties compounded this confusion in their post-trial arguments. HAS argued in its motion for new trial that, after Hemphill had used two of its four strikes against African Americans, HAS “alleged a racial pattern and requested race neutral reasons. The [c]ourt did not feel that this was a pattern exclusion of blacks and allowed both of [HAS]’s peremptory strikes to stand[.]” Not to be outdone, Hemphill argued that “the [c]ourt was clearly correct when it did not require a racially neutral reason for the second peremptory strike.” But HAS did not allege a pattern after the first strike, and the trial court did require Hemphill to give a race-neutral reason for the second strike.
14 first and second steps into a single inquiry, an obvious error. Courts are required to complete
the first step, a determination of whether a prima facie showing has been made, before
proceeding to the second. In the absence of a prima facie showing, the inquiry terminates.
¶34. On remand, the trial judge may consider such evidence and arguments presented by
the parties so as to ensure compliance with the third step of Batson, as steps one and two are
moot. Additionally, the judge may consider any notes he may have made contemporaneous
to voir dire and may also rely upon his own recollections and observations made of the jurors
or the attorneys. If the trial judge relied upon information contained on the juror information
cards, he may consider them as well.
BEAM, J., JOINS THIS OPINION. DICKINSON, P.J., LAMAR, COLEMAN AND MAXWELL, JJ., JOIN THIS OPINION IN PART.
KING, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶35. I agree with the majority’s conclusion that the trial court erred in its Batson analysis
for Juror 7. However, because I believe that there are serious concerns as to the pretextual
nature of both of Hemphill’s proffered explanations, I dissent from the majority’s finding that
the trial court may not consider Hemphill’s explanation for striking Juror 13 on remand.
¶36. The purpose of Batson was to “eradicate racial discrimination in the procedures used
to select the venire from which individual jurors are drawn.” Batson v. Kentucky, 476 U.S.
79, 85, 106 S. Ct. 1712, 1716, 90 L. Ed. 2d 69 (1986). The United States Supreme Court
described its efforts as “unceasing” on this issue. Id. Indeed, the Court found that “racial
discrimination in jury selection offends the Equal Protection Clause,” because a party has
“the right to be tried by a jury whose members are selected pursuant to nondiscriminatory
15 criteria.” Id. at 85. This concept advances the policy of the United States, that “all litigants
in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected
at random from a fair cross section of the community in the district or division wherein the
court convenes.” 28 U.S.C.A. § 1861 (West 2015) (emphasis added). Yet, despite the
Supreme Court’s unceasing efforts, discrimination in the use of peremptory challenges
remains to this day. The majority and concurring opinions do little to diminish this problem
and, I fear, may even widen the gap that our Supreme Court has worked so hard to close.
¶37. The United States Supreme Court previously has emphasized that, when analyzing a
Batson objection, “all of the circumstances that bear upon the issue of racial animosity must
be consulted.” Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 1208, 170 L. Ed.
2d 175 (2008). When there are doubts as to the outcome of a Batson challenge, a court is
“required to consider the strike of [one juror] for the bearing it might have upon the strike
of [a second juror].”14 Id. Hemphill used its first peremptory strike against the first African-
14 Not only does the trial court have a duty to evaluate the proffered explanations individually, but also in toto to determine if the reasons given were pretext for discrimination. Flowers v. State, 947 So. 2d 910, 937 (Miss. 2007). “The persuasiveness of a proffered explanation may be magnified or diminished by the persuasiveness of companion explanations . . . .” Gamble v. State, 357 S.E. 2d 792, 795 (Ga. 1987); see also Lewis v. Lewis, 321 F.3d 824, 831 (9th Cir. 2003) (“After analyzing each of the prosecutor’s proffered reasons, our precedent suggests that the court should then step back and evaluate all of the reasons together.”). Batson’s prohibition against discrimination in jury selection is intended to benefit the parties as well as the potential jurors. The parties as participants in the action have the ability to object to the selection process. That same ability is not true of potential jurors, so it is the trial court’s responsibility to protect the rights of the potential jurors. Thus, contrary to footnote 7 of the majority’s opinion, the ultimate responsibility to ensure fairness in the jury selection process rests with the trial court. The majority’s footnote 7 seems to suggest that the trial court simply sits like one of the three little monkeys who sees no evil. Such a position is inconsistent with the responsibility placed upon the trial court to prevent unconstitutional discrimination in the jury selection process. While it is true that
16 American potential juror, Juror 7, stating when questioned that it did not want an older jury
panel. Yet, Hemphill had accepted Juror 2, who was Caucasian and sixty-eight years old,
(five years older than Taylor’s sixty-three years), as well as Juror 5, a sixty-two-year-old,
who also was Caucasian. Hemphill gave no explanation for its disparate treatment of
African-American and Caucasian jurors in using its first peremptory strike. Thus, under the
Snyder precedent, Hemphill’s explanation for striking Juror 7 also throws Hemphill’s reason
for striking Juror 13 into question. In order to conduct a proper Batson analysis on remand,
the trial court must be required to consider Hemphill’s use of its peremptory strikes in toto.
¶38. Moreover, I believe that the trial court did in fact err in its Batson analysis for Juror
13. The majority contends that Juror 13 presents a different story. But the trial court’s
analysis for Juror 13 is strikingly similar to its analysis for Juror 7. As with Juror 7, when
HAS objected to Hemphill’s second use of a peremptory strike against an African-American
potential juror, the trial court again stated that it did not believe that a pattern had been
established and summarily accepted Hemphill’s proffered explanation without further
analysis. When asked to provide a reason for striking Juror 13, Hemphill offered a vague and
nonspecific explanation that lacked substance. Without considering the indicators which
suggested the proffered reasons were a pretext for racial discrimination, the trial court
summarily accepted Hemphill’s explanation and stated: “All right. I do. I’m going to uphold
the opponent of a strike does carry a burden, that does not relieve the trial court of its obligation to consider whether there is pretext in the exercise of a strike.
17 the strike on that.”15 Clearly the trial court failed to address any of the factors to be
considered when determining whether the proffered explanations were merely a pretext for
intentional discrimination in both Juror 7’s case and in Juror 13’s case.
¶39. The majority writes that “the burden remains on the strike’s opponent to show the
given race-neutral explanation is pretext for discrimination” in the third step of Batson. The
majority fails to address the fact that the opponent of the strike must be given a fair
opportunity to rebut the proponent’s proffered reasons. Here, after HAS objected to
Hemphill’s second use of peremptory strikes to exclude an African-American juror, the trial
court again stated that he did not believe that a pattern had been established but asked for a
race neutral reason. Hemphill responded that he might have a possible bias toward the
plaintiff because of his employment by Labor Ready. HAS then stated that it would not
accept that as a race neutral reason. The trial court did not allow any further analysis and
merely stated, “All right. I do.” Thus, HAS had no opportunity to explain why it believed that
Hemphill’s stated reason was pretextual. Not only was HAS deprived of a fair opportunity
to respond, but I believe any response would have been moot. The trial court summarily
accepted Hemphill’s explanations without analysis or concern. That summary acceptance of
Hemphill’s explanations for both Jurors 7 and 13 is precisely why, on remand, the trial court
must revisit both of Hemphill’s questionable strikes.
¶40. Additionally, this Court has held that a trial court should consider “the extent and
15 The trial court made this ruling despite the fact that, after the jury was picked, when discussing the topic of objections during trial, the trial court itself stated that “[t]he things that will give me the most problems is going to be on relevance and things of that nature since I know nothing about the case.”
18 nature of voir dire on the grounds upon which the strike is being exercised.” Hardison v.
State, 94 So. 3d 1092, 1100 (Miss. 2012). “If the State asserts that it was concerned about
a particular characteristic but did not engage in meaningful voir dire examination on that
subject, then the State’s failure to question the juror on that topic is some evidence that the
asserted reason was a pretext for discrimination.” Reed, 555 F. 3d at 376. The trial court
conducted no analysis into whether there was a possibility of actual bias of not. When the
trial court asked Hemphill to give a race-neutral reason for striking Juror 13, Hemphill stated
that it had struck Calhoun because he had listed his place of employment as Labor Ready on
his jury card and because the case contained a number of issues about part-time and
temporary employees. Yet neither party in voir dire asked the potential jury members whether
they were temporarily employed or whether they worked part-time. In fact, no questions were
asked of either Taylor or Calhoun during voir dire. The trial court failed to take any of the
Batson factors into consideration. It merely stated that it accepted Hemphill’s reason and
moved on.
¶41. And, while it may be arguable whether part-time or temporary employment was
enough of an issue to evoke wariness, it is the trial judge’s burden to conduct a proper
Batson analysis. Cf. Hardison, 94 So. 3d at 1102 (“[T]he trial judge’s failure to conduct a
proper Batson analysis constituted clear error.”); Hatten v. State, 628 So. 2d 294, 298 (Miss.
1993) (“[W]e today decide it necessary that the trial courts make an on-the-record, factual
determination, of the merits of the reasons cited by the State for the use of its peremptory
challenges against potential jurors.”).
19 ¶42. The concurring opinion initially notes that the purpose of Batson is the elimination
of unconstitutional discrimination in the jury selection process. However, the concurring
opinion then immediately strays from the issue of this case by its extended discussion in
footnote nine, of HAS and its motivation in the exercise of jury challenges, and whether that
motivation is the basis upon which it questioned Hemphill’s jury strikes. The issue of
whether HAS improperly struck jurors was not before the trial court and is not now before
this Court. Therefore, any speculation thereof is moot. The effect and perhaps the purpose
of such a discussion is to cloud rather than illuminate the issue which this Court is asked to
address.
¶43. The concurring opinion does then correctly note that the burden is placed upon the
trial judge to ensure that there is no unconstitutional discrimination in the jury selection
process. This Court has not always been of assistance to the trial courts in that effort. Perhaps
the greatest service that this Court could render in that effort would be the complete
elimination of peremptory jury challenges, and the requirement that all challenges be based
upon cause clearly set out in the record. Hemphill Construction appears to have made no
effort in the record before this Court to demonstrate the truth of the reasons given for striking
Jurors 7 and 13. Such a requirement would eliminate the often farcical process of offering
questionable reasons for striking jurors in an effort to avoid the mandate of Batson.
¶44. In conclusion, the concurring opinion states that, upon remand, “the trial judge may
consider such evidence and arguments presented by the parties so as to ensure compliance
with the third step of Batson. . . .” I would disagree. The determination should be made upon
20 the facts as were before the court when the strikes were exercised. While this would include
the trial court’s contemporaneous notes, it would not allow for the introduction of new
information. Nor should it be read as allowing Hemphill to view the existing record with a
high powered microscope to find a new reason to justify its challenge.
¶45. The approach taken by the majority and concurring opinion would seem to be
designed to limit, rather than fully enforce, the mandate of Batson. The majority’s holding
that, notwithstanding the questionable circumstances surrounding the strikes of both Jurors
7 and 13, that each must be considered in a vacuum and that there was no error with respect
to Juror 13, at best defies logic. At worst, it appears to be a self-fulfilling prophecy upon
which to justify a finding of no discriminatory action. Accordingly, I dissent from the
majority’s finding that the trial court did not err in conducting its Batson analysis for Juror
13 and would require the trial court to consider Hemphill’s use of its peremptory strikes in
whole.
KITCHENS, J., JOINS THIS OPINION.