Perry v. State

949 So. 2d 764, 2006 WL 1460638
CourtCourt of Appeals of Mississippi
DecidedMay 30, 2006
Docket2005-KA-00541-COA
StatusPublished
Cited by13 cases

This text of 949 So. 2d 764 (Perry 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
Perry v. State, 949 So. 2d 764, 2006 WL 1460638 (Mich. Ct. App. 2006).

Opinion

949 So.2d 764 (2006)

Robert Lee PERRY, Appellant
v.
STATE of Mississippi, Appellee.

No. 2005-KA-00541-COA.

Court of Appeals of Mississippi.

May 30, 2006.
Rehearing Denied November 14, 2006.

*765 David L. Walker, attorney for appellant.

Office of the Attorney General, by Scott Stuart, attorney for appellee.

Before LEE, P.J., IRVING and ISHEE, JJ.

ISHEE, J., for the Court.

¶ 1. Robert Lee Perry was convicted of sale of a controlled substance, cocaine, in the Circuit Court of Panola County and sentenced to serve twelve years in the custody of the Mississippi Department of Corrections ("MDOC"). Aggrieved by his conviction and sentence, Perry appeals. Finding no error, we affirm.

FACTS

¶ 2. After selling crack cocaine to a confidential informant on April 28, 2004, Perry was arrested and charged with possession of a controlled substance. During the jury selection process, Perry exercised all of his peremptory strikes on white males. The *766 assistant district attorney objected, asserting that Perry was intentionally discriminating on the basis of race and gender. When asked to state his race/gender neutral reasons for exercising the peremptory strikes on these jurors, Perry presented the following: (1) juror McGregor was a security guard, thus pro-law enforcement, had been a crime victim, had a family member that had been a victim of narcotics, and had given a statement to law enforcement; (2) juror Chapman knew all of the narcotics agents involved in the case, had been a crime victim, and was a park ranger and emergency medical technician; (3) juror Davis was a crime victim; (4) juror Waller had been on a jury before and found the defendant guilty, had been a crime victim, and watches Law and Order; (5) juror Phillips was a military veteran and maintenance supervisor; and (6) juror Keeton was a military veteran, in addition to the fact that Perry "was reluctant to accept any prospective juror that the assistant district attorney liked."

¶ 3. The trial court found all of the asserted reasons to be non-discriminatory except for those pertaining to jurors Davis, Phillips, and Keeton. The trial judge reasoned that the fact that juror Davis had been a crime victim did not alone constitute a sufficient reason to strike him, especially considering that another prospective female juror had been a crime victim, but was not struck. Because the trial judge determined that the proffered race/gender neutral reason given was insufficient, he reinstated juror Davis to the petit jury. As to juror Phillips, the trial judge stated that it was impermissible to bar a former veteran from serving on a juror simply because of his veteran status; thus, juror Phillips was reinstated to the petit jury. The trial judge used the same rationale in reinstating juror Keeton to the petit jury. Perry then objected and asked that the court make a record of the composition of the petit jury, which it did.[1]

¶ 4. After his trial, Perry was convicted of possession of a controlled substance, cocaine, and sentenced to twelve years in the custody of the MDOC, with ten to serve and two suspended pending Perry's future good behavior. Perry further raised the issue of the trial court's reinstatement of the aforesaid jurors to the jury in his motion for a new trial, or in the alternative, for a judgment notwithstanding the verdict. Such motions were denied, and Perry appeals, asserting that the trial court erred by reinstating the jurors.

STANDARD OF REVIEW

¶ 5. This Court will only reverse a trial judge's factual findings if such findings were "clearly erroneous or against the overwhelming weight of the evidence." Tyler v. State, 911 So.2d 550, 553(¶ 10) (Miss.Ct.App.2005) (citing Tanner v. State, 764 So.2d 385, 393(¶ 14) (Miss.2000)). This Court will accord a trial judge's Batson determinations great deference, as such determinations are based largely on credibility. Tyler, 911 So.2d at 553(¶ 10) (citation omitted). "Great deference" has been defined in the Batson context as "insulation from appellate reversal of any trial findings which are not clearly erroneous." Id. (citing Lockett v. State, 517 So.2d 1346, 1349-50 (Miss.1987)).

ISSUES AND ANALYSIS

¶ 6. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 *767 (1986), the United States Supreme Court held that parties could not exercise peremptory strikes based solely on a potential juror's race. Batson, 476 U.S. at 89, 106 S.Ct. 1712; see Forrest v. State, 876 So.2d 400, 403(¶ 4) (Miss.Ct.App.2003) ("The Batson decision 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"). The Batson analysis has three prongs. Lynch v. State, 877 So.2d 1254, 1270-71(¶ 48) (Miss.2004). First, the party objecting to the opposing party's exercise of a peremptory strike "must make a prima facie showing that race [or gender] was the criteria for the exercise of a peremptory strike." Id. (quoting McFarland v. State, 707 So.2d 166, 171(¶ 14) (Miss.1997); see also Randall v. State, 716 So.2d 584, 588(¶ 16) (Miss.1998) (discussing application of Batson to gender discrimination)). To establish a prima facie case of discrimination, the party must demonstrate: (1) that he or she is a member of a cognizable racial [or gender] group; (2) that the opposing party has exercised peremptory challenges against members of a particular race; and (3) that the facts and circumstances raise an inference that the party exercising the peremptory strikes does so for the purpose of striking a particular race [or gender]. See Snow v. State, 800 So.2d 472, 478(¶ 10) (Miss 2001). "However, where the trial court does not explicitly rule on whether the defendant established a prima facie case under Batson but nevertheless requires the [opposing party] to provide [gender/]race-neutral reasons for its challenges and the [opposing party] provides reasons for its challenges, the issue of whether the [challenging party] established a prima facie case is moot." Lynch, 877 So.2d at 1271(¶ 48) (citing Snow, 800 So.2d at 478-79(¶ 11)).

¶ 7. Once a prima facie case is established, burden shifts to the party exercising the challenge to provide a [gender/]race-neutral reason for doing so. McFarland, 707 So.2d at 171(¶ 14). "`[A]ny reason which is not facially violative of equal protection will suffice.'" Lynch, 877 So.2d at 1271(¶ 49) (citations omitted). Such explanation does not have to be persuasive, or even plausible. Id. (quoting Randall, 716 So.2d at 588(¶ 16)). Unless discriminatory intent is inherent in the proffered race/gender-neutral explanation, the reason offered will be deemed a gender/race-neutral explanation. Id. In the absence of rebuttal by the challenging party, the trial judge is limited to the reasons proffered by the party exercising the peremptory strike. Lynch, 877 So.2d at 1271(¶ 49) (citations omitted). Failure by the challenging party to offer rebuttal to the proffered reasons constitutes waiver. Id. (citing Manning v. State, 735 So.2d 323, 339(¶ 30) (Miss.1999); Mack v. State, 650 So.2d 1289, 1297 (Miss.1994)).

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Bluebook (online)
949 So. 2d 764, 2006 WL 1460638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-state-missctapp-2006.