Conerly v. State, 58218

• Decision Date: 10 May 1989
• Docket Number: No. 58218,58218
• Citation: 544 So.2d 1370
• Parties: Willie Ray CONERLY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1370

544 So.2d 1370

Willie Ray CONERLY v. STATE of Mississippi.

No. 58218.

Supreme Court of Mississippi.

May 10, 1989.

Rehearing Denied June 28, 1989.

Sam P. Cooper, Jr., Picayune, Bobby J. Garraway, Lumberton, for appellant.

Mike Moore, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

ANDERSON, Justice, for the Court:

Willie Ray Conerly was indicted by a Pearl River County Grand Jury on a charge of armed robbery and was tried August 21, 1986, which trial resulted in a mistrial when the jury was unable to agree upon a verdict. He was retried on January 27, 1987, and the jury returned a verdict of guilty and a sentence of life imprisonment. Conerly appeals, alleging that: the prosecutor violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); the trial court erred in overruling his motion to dismiss based on denial of a speedy trial; the trial court erred in admitting the State's exhibits; and, the trial court erred in denying his motion for new trial. In reversing we address only Conerly's Batson claim.

I.

It is unnecessary, for purposes of this appeal, to provide a full recitation of the facts. Witnesses testified that Conerly robbed a Picayune, Mississippi, convenience store on August 18, 1985. In the process of the robbery, Conerly held two employees at gun point and obtained over three hundred dollars ($300.00) in cash. Conerly admitted that he had been in the store on the day of the robbery, but claimed an alibi for the time of the robbery. On this conflicting evidence the jury returned its guilty verdict.

II. BATSON ISSUE

Forty-nine venire persons were present at Conerly's trial. Nine of those forty-nine were black. The trial court excused two of the nine for cause. The state accepted one black venire person and used five peremptory challenges to exclude black venire persons. A jury composed of eleven whites and one black was accepted before reaching the last black venire person.

Our concern today centers on the state's challenge of one of the five excluded black venire persons. The portion of the jury selection process involving Juror Jean Swain is taken from the record and is as follows:

THE COURT:

Let the record show that Willie Ray is a member of the Black race, and therefore the Court will require if the State exercises any challenges on Black jurors, to state their reason for so doing. Whether or not I have all of the jurors marked that are Black, I'm not absolutely certain, so Mr. Cooper, if the State does strike a Black juror and I fail to require an explanation, would you please bring it to my attention that that juror being struck is Black.

* * * * * *

MR. McDONALD:

We are going to strike Jean Swain, ..., who is Black, because she was unable to completely fill out her form, and we believe she lacks the--

THE COURT:

Let's see her form.

MR. DOUGLASS:

She is also confused on some of it. I can't figure her age out.

THE COURT:

Let the record show that Jean Swain filled out her form by printing and put her age as 59-5-27-27, which could mean fifty-nine years old and that she was born on May 27th of the year 1927, which would be very sensible. Her occupation is maid one day per month; her address is Mrs. Harris Love, 318 North Hickory; she shows a marital status of separated how long worked there, twenty years; she did finish high school--well, she's got high school checked, but highest grade completed, 11th. She wouldn't have to fill in outside the county seat because she lives in Poplarville and that is the county seat.

MR. DOUGLASS:

Doesn't say how long she lived--

THE COURT:

Does not fill out how long she has lived in Pearl River County. And does her husband or wife work, she didn't fill out any of that but she shows she's separated. Then she does put the name of her mother and her father. So if that's your reason, the form to me is filled out adequately and I believe that her age would be--the month and date and year would show to be the age.

Do you object to the excusing of her?

MR. COOPER:

Yes, sir.

(JURY SELECTION CONTINUED--OFF THE RECORD)

In order to "establish a prima facie case of purposeful discrimination in selection of the petit jury" a criminal defendant must show:

1. That he is a member of a "cognizable racial group";

2. That the prosecutor has exercised peremptory challenges toward the elimination of veniremen of his race; and

3. That facts and circumstances raised an inference that the prosecutor used his peremptory challenges for the purpose of striking minorities.

Batson, 476 U.S. at 96-97, 106 S.Ct. at 1722-23, 90 L.Ed.2d at 87-88; Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987).

Conerly has complied. He has shown that he is a black person and that the district attorney has exercised peremptory challenges to remove black persons from the jury--Jean Swain and four others. Finally, the fact that the prosecution used all of the peremptory strikes necessary (five) to remove all but one black person from the jury satisfies the requirement of raising an inference of racial discrimination.

The prima facie showing satisfied, the state is compelled "to come forward with a neutral explanation for challenging black jurors" [footnote omitted]. Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88; Lockett, 517 So.2d at 1349. The trial court should then determine, on the record, whether each of the state's reasons for striking black jurors is, in fact, racially neutral.

[A] trial judge's factual findings relative to a prosecutor's use of peremptory challenges on minority persons are to be accorded great deference and will not be reversed unless they appear clearly erroneous or against the overwhelming weight of the evidence.

Lockett, 517 So.2d at 1350.

The difficulty in the instant case lies in the fact that the trial court made a factual determination that Juror Swain's information card was adequately filled out, as well as an implied determination that Swain was not confused. The trial court was also able, without any difficulty whatsoever, to discern Juror Swain's age and birthdate. Having determined that the state's explanation did not provide a valid reason for striking Swain, the trial court was obligated to seat her on the jury unless the state could suggest another racially neutral reason for striking her. The district attorney did not articulate any other Batson eligible reason for challenging Swain.

As we noted in Chisolm v. State, 529 So.2d 635 (Miss.1988):

Batson tells us

'A single invidiously discriminatory governmental act' is not 'immunized by the absence of such discrimination in the making of other comparable decisions'. 476 U.S. at 95 , 90 L.Ed.2d at 87.

That the prosecutor accepted other black persons as jurors is no defense to a Batson claim.

Chisolm, 529 So.2d at 637.

In light of the prosecutor's failure to articulate a valid race-neutral reason for striking Juror Swain, the trial court's factual determination that she was eligible and the case law recited above, we have no alternative but to reverse this case and remand for a new trial.

REVERSED AND REMANDED.

ROBERTSON, PRATHER and SULLIVAN, JJ., concur.

ROY NOBLE LEE, C.J., and HAWKINS and DAN M. LEE, P.JJ., dissent.

PITTMAN and BLASS, JJ., not participating.

ROY NOBLE LEE, Chief Justice, dissenting:

I do not agree with the majority opinion reversing this case on the Batson issue, and, therefore, I dissent. In order to properly present my view, a full picture of the facts must be given.

Willie Ray Conerly was indicted in the Circuit Court of Pearl River County on a charge of armed robbery and was tried August 21, 1986, which trial resulted in a mistrial when the jury was unable to agree upon a verdict. He was tried a second time on the charge January 27, 1987, and the jury returned a verdict of guilty and a sentence of life imprisonment. Conerly has appealed to this Court from that conviction and sentence.

On August 18, 1985, between 6:15 p.m. and 6:20 p.m., a black male robbed Bill's Quick Stop # 1 in Picayune, Mississippi, and obtained over three hundred dollars ($300.00) in cash. According to Randy Mitchell, an employee of the convenience store, Conerly came in and bought a 16-oz. beer. Approximately five minutes later, he returned, pulled the beer out of the bag, put it on the counter and pulled out a gun. He pointed the gun at Mitchell's head and ordered him to open the cash register, and, as Mitchell was complying with the order, his co-employee, Darrell Holifield, returned from the back of the store where he had been stocking the cooler. Conerly pointed the gun at Holifield and ordered him behind the counter. Mitchell and Holifield testified that Conerly held the gun in his left hand and began stuffing money into his pockets with his right hand. Some of the money fell to the floor. Conerly stooped to pick it up.

A young woman named Marlette Brown, who said she had known Conerly for several years, testified that she walked in and saw Conerly bending over picking money up off the floor and the two employees were standing behind the counter next to each other with the cash register open and Conerly had a gun on them.

Lt. Tony Gibson, a sergeant with the Picayune Police Department, responded to a call and arrived at the store about 6:25 p.m. He dusted the door, counter area and beer can for fingerprints and lifted one latent (usable) print from the beer can.

Sarah McCray lives approximately one and one-half blocks from the Quick Stop. According to her, she and Conerly had a former live-in relationship and Conerly came by her house on the night of the robbery between 6:30 and 7:00 p.m. When he arrived, he was sweating and said he had been running; he had a gun which he placed on her dresser before taking a shower; and after showering, he changed shirts but put on the same pants. McCray gave the shirt and hat to Officer Gibson later that evening.

Mitchell, Holifield and McCray positively...