Burnett v. Fulton, 2000-CA-01241-SCT.

• Decision Date: 18 September 2003
• Docket Number: No. 2000-CA-01241-SCT.,2000-CA-01241-SCT.
• Citation: 854 So.2d 1010
• Parties: Kathy BURNETT and Phillip Burnett v. Dr. Lori FULTON.
• Court: Mississippi Supreme Court

854 So.2d 1010

Kathy BURNETT and Phillip Burnett v. Dr. Lori FULTON.

No. 2000-CA-01241-SCT.

Supreme Court of Mississippi.

September 18, 2003.

John F. Hawkins and Steven Mark Wann, Jackson, for appellants.

Jimmy B. Wilkins, Mildred M. Morris, and Susan Latham Steffey, Jackson, for appellee.

EN BANC.

SMITH, Presiding Justice, for the Court.

¶ 1. The genesis of the case at bar arises from a suit filed in the Circuit Court of Hinds County by Kathy and Phillip Burnett against Dr. Lori Fulton alleging medical malpractice. The jury found for Dr. Fulton. On appeal, the Burnetts raise the issue of improper peremptory challenges by Dr. Fulton. We affirm the decision of the learned trial judge who found all the jurors strikes to be race neutral.

FACTS

¶ 2. On October 3, 1997, Kathy and Phillip Burnett filed a medical malpractice action against Dr. Lori Fulton in the Circuit Court of the First Judicial District of Hinds County. A jury trial began on March 13, 2000. At the conclusion of voir dire, counsel for Dr. Fulton exercised all four of her peremptory challenges to strike African Americans from the jury panel. The Burnetts made a Batson challenge, and Dr. Fulton responded appearing to give race neutral reasons for the strikes.

¶ 3. Counsel for Dr. Fulton stated the following reasons, to which counsel for the Burnetts made no rebuttal:

As to Juror No. 6, ... Cavett, she didn't laugh at any of Mr. Wilkins comments. She looked away the entire time he was in voir dire. She frowned at several comments he made and several questions he asked her. Her body language was inappropriate. She has limited education and we have a complicated case.

Our next challenge was to ... Ransom who was completely unengaged. She looked down during Mr. Wilkins voir dire, did not make any eye contact whatsoever with him, and we have excused Ms. Ransom.

Ms. Myrick is 29 years old. That's exactly the same age that Ms. Burnett was when she began to see Dr. Fulton for a period of approximately four years. She is going to relate to that time period in life. She also frowned, refused to make eye contact, and appeared to have her eyes closed during part of the voir dire.

Ms. Thigpen absolutely was asleep during the first part of the voir dire. She actually paid more attention to Mr. Wilkins than to Mr. Hawkins, but she had her eyes closed and at one point totally nodded off and shook when she woke up. She was completely inattentive. She also could not remember the results of her civil case and was not particularly interested in the judicial process. And, for the record, we have accepted a number of African-American Jurors including African American women.

¶ 4. Dr. Fulton then raised a Batson challenge to the Burnetts' strikes, and the Burnett's counsel articulated race-neutral reasons for having used all strikes against Caucasians. Of the jurors struck by the Burnetts' counsel, one knew Dr. Fulton and had worshiped at the same church, one was an acquaintance of a senior partner in defense counsel's firm, and one was, Mr. Barranco, a pharmacist and thus a member of the health care profession who was openly hostile toward both sides during voir dire. Defense counsel indicated that this strike was not a surprise. These strikes are not, however, at issue in this appeal.

¶ 5. Upon considering the justifications given by both parties, the trial judge made the following observations with regard to the exercise of the strikes:

The Court: I'm going to allow all of the challenges to stand. I am troubled by some of the reasons that have been given for some of the strikes, and this provides me with another opportunity to give my new [definition] of voir dire, and I hope that's not what's occurring in this case. But more and more and more voir dire is an exercise in finding race neutral reasons to justify racially motivated strikes. And that's what I'm seeing more and more and more to the point that I'm almost ready to decide that there will be no voir dire other than an introduction of the parties and the litigants and we can just bring the jurors in and let the lawyers pick what their race is and decide who they want to strike, because more and more and more I'm having cases where plaintiff lawyers, no matter what a juror says, they're going to strike all the white people that they can strike, and defense lawyers are going to strike all the black people that they can strike ... So having given my speech again because I'm just tired of seeing it ... I'm letting your strikes stand just as you made them and I'm letting their strikes stand just as you made them. Bring in the jury.

¶ 6. Although the judge allowed the reasons to stand, he did not make "specific explanation" on the record. The selected jury returned a verdict in favor of Dr. Fulton. The sole issue on appeal is whether this case must be reversed in light of Dr. Fulton's peremptory challenges and the judge's ruling to let them stand.

STANDARD OF REVIEW

¶ 7. A trial court's determinations regarding Batson challenges are afforded great deference because they are, in large part, 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 deference given to the trial judge is due because the trial judge is present during voir dire and is in a better position to measure the prospective jurors' responses. Venton v. Beckham, 845 So.2d 676, 679 (Miss.2003); Smith v. State, 802 So.2d 82, 86 (Miss.2001); Wells v. State, 698 So.2d 497, 501 (Miss.1997). Therefore, a trial court's findings are to be given the utmost consideration on appeal, and this Court will reverse only where the decision is clearly erroneous or against the overwhelming weight of the evidence. Gary v. State, 760 So.2d 743, 749 (Miss.2000); Randall v. State, 716 So.2d 584, 587 (Miss. 1998); Collins v. State, 691 So.2d 918, 926 (Miss.1997). Recently, the United States Supreme Court restated its earlier plurality holding that

in the context of direct review, therefore, we have noted that "the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal" and will not be overturned unless clearly erroneous.

Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 1041, 154 L.Ed.2d 931 (2003) (quoting Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)).

LAW AND ANALYSIS

A. WHETHER DR. FULTON'S PEREMPTORY STRIKES WERE RACE-BASED AND THEREFORE A VIOLATION OF BATSON v. KENTUCKY, 476 U.S. 79 (1986)?

¶ 8. Pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) the proper analysis for a peremptory challenge violation has been set forth by this Court in numerous cases. See Berry v. State, 728 So.2d 568, 572 (Miss.1999)

; Randall, 716 So.2d at 585; McFarland v. State, 707 So.2d 166, 171-72 (Miss.1997). We follow the decision made by the United States Supreme Court in Miller-El, 537 U.S. at 328-29,

123 S.Ct. at 1035, holding the Batson requirements to be as follows:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. 476 U.S. at 96-97,106 S.Ct. 1712,90 L.Ed.2d 69. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Id., at 97-98, 476 U.S. 79,106 S.Ct. 1712,90 L.Ed.2d 69. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Id., at 98, 476 U.S. 79,106 S.Ct. 1712,90 L.Ed.2d 69.

(emphasis added).

¶ 9. Here, the Burnetts challenged Dr. Fulton's use of all four of her peremptory strikes against prospective African-American jurors. It is of no consequence whether the Burnetts established a Batson prima facie case, as the trial court required Dr. Fulton to provide race-neutral reasons for her challenges. Because Dr. Fulton offered explanations for her challenges, the elements of whether the Burnetts established a prima facie case and whether Dr. Fulton should be required to give race-neutral reasons for her challenges are immaterial. Mack v. State, 650 So.2d 1289, 1297 (Miss.1994) (citing Hernandez, 500 U.S. at 352-54, 111 S.Ct. 1859).

¶ 10. The striking party is not required to "provide the same degree of justification for a peremptory challenge as is required for a challenge for cause." Bush v. State, 585 So.2d 1262, 1268 (Miss. 1991). Inattentiveness, demeanor, sleeping during voir dire, lack of eye contact, educational level and hostility (the reasons cited by Dr. Fulton) have all been held by this Court to be race neutral reasons in keeping with Batson. Mack, 650 So.2d at 1299

; Harper v. State, 635 So.2d 864, 868 (Miss.1994); Lockett v. State, 517 So.2d 1346, 1356-57 (Miss.1987).

¶ 11. Once the striking party has submitted race-neutral reasons for its peremptory challenges, the opposing party has a chance to rebut the proffered reasons. Gary v. State, 760 So.2d at 743; Chisolm v. State, 529 So.2d 635, 638 (Miss. 1988). The Burnetts did not rebut the race neutral reasons given by Dr. Fulton. This Court has previously held that a lack of response to the striking party's race-neutral reasons makes it improper for the Court to reverse on this point. Davis v. State, 551 So.2d 165, 172 (Miss.1989). In the instant case, the Burnetts did not rebut with a specific argument, such as pretext, in order to supplement their general Batson challenge. Therefore, this argument is waived. Mack, 650 So.2d at 1297. The Burnetts were not required to rebut, but by offering no other arguments regarding the peremptory strikes, they forced the trial court to base its decision solely upon the reasons given by Dr. Fulton. Gary, 760 So.2d at 743; Johnson v. State, 529 So.2d 577, 584 (Miss.1988).

¶ 12. In Hatten v. State, 628 So.2d 294 (Miss.1993), this Court held that trial court judges should make on-the-record factual...