Berry v. State

• Decision Date: 11 October 2001
• Docket Number: No. 93-DP-00059-SCT.,93-DP-00059-SCT.
• Citation: 802 So.2d 1033
• Parties: Earl Wesley BERRY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

802 So.2d 1033

Earl Wesley BERRY v. STATE of Mississippi.

No. 93-DP-00059-SCT.

Supreme Court of Mississippi.

October 11, 2001.

Rehearing Denied December 13, 2001.

David O. Bell, Oxford, Attorney for Appellant.

Office of the Attorney General by Marvin L. White, Jr., Jackson, Attorney for Appellee.

EN BANC.

PITTMAN, Chief Justice, for the Court:

¶ 1. This case is before the Court on an appeal prosecuted from the Circuit Court of Chickasaw County, Mississippi, where relief was denied after a January 16, 1998, hearing on the issue of jury selection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The circuit court filed a written finding of fact on January 28, 1998. The hearing was held pursuant to a remand order after this Court affirmed Berry's sentence of death on all grounds except for the Batson question. See Berry v. State, 703 So.2d 269 (Miss.1997)

.

FACTS

¶ 2. Earl Wesley Berry was convicted of capital murder in the Chickasaw County Circuit Court and sentenced to death for the kidnapping and murder of Mary Bounds in violation of Miss.Code Ann. § 97-3-19(2)(e). Berry was also charged with being an habitual offender in violation of Miss.Code Ann. § 99-19-81. On appeal, this Court affirmed the jury's verdict of guilty but vacated the death sentence and remanded for a new sentencing trial. Berry v. State, 575 So.2d 1 (Miss.1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2042, 114 L.Ed.2d 126 (1991) (Berry I). Following the resentencing trial, the jury again returned a sentence of death.

¶ 3. The State used all twelve of its peremptory strikes in this case. Seven white prospective jurors and five African American prospective jurors were stricken, resulting in a jury composed of eleven white jurors and one African American juror.

¶ 4. During the original trial, the trial court found that Berry had not established a prima facie case of purposeful discrimination, and that Batson did not apply because Berry was a white defendant. Both parties and the trial court failed to recognize that under Powers, white defendants also have standing to challenge discriminatory peremptory strikes.

¶ 5. On appeal to this Court, Berry argued, inter alia, that the trial court erred in allowing the State to peremptorily strike black jurors in violation of Batson and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). This Court affirmed Berry's sentence of death on all grounds except for the Batson question, and remanded to the trial court for a hearing on whether the Batson criteria were violated by the prosecution in exercising its peremptory challenges.

¶ 6. The hearing on remand was held before Circuit Judge Kenneth Coleman on January 16, 1998. The district attorney was given an opportunity to come forward with neutral, non-race based Batson-conforming explanations for each of the peremptory challenges he used on all the African Americans excused. Berry in turn was afforded the opportunity to challenge and rebut any such explanations.

¶ 7. On January 28, 1998, the circuit court entered its order finding that Berry failed to establish a prima facie case of purposeful discrimination and that the strikes made by the State were race neutral. After careful review, this Court concludes that the trial court properly denied Berry's Batson motion.

¶ 8. On appeal, Berry raises the following issues:

I. THE TRIAL COURT ERRED IN FINDING THAT THE STATE HAD PROFFERED RACIALLY NEUTRAL EXPLANATIONS FOR EXERCISING PEREMPTORY CHALLENGES AGAINST POTENTIAL JURORS.

II. THE TRIAL COURT FAILED TO MAKE A FACTUAL ANALYSIS

OF THE REASONS GIVEN BY EITHER SIDE.

STANDARD OF REVIEW

¶ 9. On appellate review, a trial court's determinations under Batson are accorded great deference because they are largely based on credibility. McGilberry v. State, 741 So.2d 894, 923 (Miss.1999) (citing Coleman v. State, 697 So.2d 777, 785 (Miss.1997)). This Court will reverse only when such decisions are clearly erroneous. Woodward v. State, 726 So.2d 524, 530 (Miss.1998); Lockett v. State, 517 So.2d 1346, 1349-50 (Miss.1987).

DISCUSSION

¶ 10. Berry alleges that the State's use of five of its peremptory challenges against African American jurors constitutes a violation of Batson v. Kentucky. Berry contends that the trial court erred in finding that the State had offered racially neutral reasons for exercising its peremptory strikes.

¶ 11. A Batson challenge to a peremptory strike should proceed as follows. First, the defendant must establish a prima facie case of discrimination in the selection of jury members. Berry v. State, 703 So.2d at 294 (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). The prosecution then has the burden of stating a racially neutral reason for the challenged strike. If the State gives a racially neutral explanation, the defendant can rebut the explanation. Finally, the trial court must make a factual finding to determine if the prosecution engaged in purposeful discrimination. If the defendant fails to rebut, the trial judge must base his decision on the reasons given by the State. Thorson v. State, 721 So.2d 590, 593 (Miss.1998).

¶ 12. Ordinarily, the first step in a Batson analysis would be to determine whether there was a prima facie showing that race was the motivation for the State's peremptory challenges. In the case at bar, however, the State gave race neutral reasons for its peremptory strikes during the resentencing trial. The United States Supreme Court has explained that once reasons are offered by the proponent, 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 v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)).

¶ 13. Therefore, the focal point of step two in the Batson analysis is whether the State met its burden of offering race-neutral reasons for its peremptory challenges of black members of the venire. The primary question is "whether the opponent of the strike has met the burden of showing that proponent has engaged in a pattern of strikes based on race or gender, or in other words, `the totality of the relevant facts gives rise to an inference of discriminatory purpose.'" Randall v. State, 716 So.2d 584, 587 (Miss. 1998) (quoting Batson, 476 U.S. at 94, 106 S.Ct. 1712). The establishment of a race neutral reason is not a difficult task. Stewart v. State. 662 So.2d 552, 558 (Miss. 1995). For Batson step II purposes, any reason which does not facially violate the Constitution is sufficient. Randall v. State, 716 So.2d 584, 588 (Miss.1998) (citing Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). In Randall, we held:

The second step of this process does not demand an explanation that is persuasive, or even plausible. `At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.' Purkett, 514 U.S. at 768,115 S.Ct. 1769.

Randall, 716 So.2d at 588.

¶ 14. At the final stage of the Batson analysis, the trial court determines if the reasons given by the prosecution were pretexts for intentional discrimination. Thorson, 721 So.2d at 593. The burden remains with the opponent of the strike. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771. This Court affords great deference to the trial court's findings of whether a peremptory challenge was race neutral. Simon v. State, 679 So.2d 617, 621 (Miss.1996). Such deference is necessary because finding that a striking party engaged in discrimination is largely a factual finding. Thorson, 721 So.2d at 593 (citing Hernandez v. New York, 500 U.S. at 367-68, 111 S.Ct. 1859).

¶ 15. This Court has identified five indicia of pretext when analyzing proffered race-neutral reasons for peremptory strikes under Batson:

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.

Manning v. State, 765 So.2d 516, 518 (Miss.2000); Mack v. State, 650 So.2d 1289, 1298 (Miss.1994) (citing Whitsey v. State, 796 S.W.2d 707, 707 (Tex.Crim.App. 1989)). For each juror listed below, Berry has raised arguments regarding these five indicia of pretext.

I.

¶ 16. We now examine the explanations given by the State at both the resentencing hearing and at the Batson hearing for each challenged strike.¹ The jurors in question are:

JUROR NO. 22, SARA MOSLEY:

¶ 17. In the resentencing trial, the State gave the following reason for striking Juror Mosley:

MR. LITTLE [for the State]: She did state that she had heard something on T.V. She said she could set that aside, but there weren't too many jurors that said they had heard anything on T.V. about this. Some of them said they saw something in the newspaper; and in response to number 22, I could not understand why her juror information and [sic] says, "Have you ever heard of Earl Berry?"

Says, "Yes."

"Please describe what you konw [sic] of him."

Nothing.

Then it's "n-a-b-o-r."

BY MR. LITTLE: And she is also somewhat close in age to the defendant. I forget how old the defendant is. This is a 32-year-old black female, had lived in Racine Wisconsin, also, it says in response to number 4 on the juror information card; and, of course, this being Albany, Mississippi, in my experience everyone nearly we've had to extradict [sic] from New Albany goes to Racine, Wisconsin or Iowa. When I see Racine, Wisconsin, I always am concerned about that; that they may have had problems with the law.

¶ 18. During the remand hearing presently before this Court on appeal, the State restated the reason given at the...