Dennis v. State, 07-58666

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: BLASS; ROY NOBLE LEE; PITTMAN
• Citation: 555 So.2d 679
• Parties: Kenneth DENNIS v. STATE of Mississippi.
• Docket Number: No. 07-58666,07-58666
• Decision Date: 25 October 1989

Page 679

555 So.2d 679 Kenneth DENNIS
v.
STATE of Mississippi. No. 07-58666. Supreme Court of Mississippi. Oct. 25, 1989.
Rehearing Denied Jan. 31, 1990.

Tim F. Wilson, Freeland & Freeland, Janet G. Arnold-Wilson, Holcomb Dunbar Connell Firm, Oxford, for appellant.

Page 680

Edwin Lloyd Pittman, Atty. Gen., elected Supreme Court Justice Jan. 3, 1989, Mike C. Moore, Atty. Gen., Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and SULLIVAN and BLASS, JJ.

BLASS, Justice, for the Court:

Kenneth Dennis was convicted in the Circuit Court of Lafayette County, Mississippi, for the raping and the kidnapping of a young female University student. Life sentences were imposed for each, to run consecutively. We affirm.

I. FACTS

On June 29, 1986, the victim was kidnapped by two men at approximately 10:00 p.m. from her dorm parking lot at the University of Mississippi. Dennis was one of two men who abducted her at gunpoint forcing her into a car. Dennis was tried separately.

The men took her to a wooded area in the countryside of Lafayette County where she was subjected to brutal sexual attacks, including rape by the defendant Dennis.

After these attacks her assailants drove aimlessly about for some time, apparently uncertain as to what to do with their victim. During this period Dennis sat in the back seat of the car and held a gun in the small of her back. She promised not to tell and begged them to let her go. The men instead drove to Ben's and Todd's, a remote, rural convenience store, where they purchased gas, cigarettes, beer, and a coke. The victim was able to see Dennis clearly at that point because they were in a lighted area. Thus she was able to testify that no doubt existed in her mind that the man she identified in the court room, Kenneth Dennis, was one of the men who abducted and raped her.

The trio drove around for another long period after they left Ben's and Todd's to discuss the disposal of the young woman. She again promised that she would not tell if they would just let her live. Finally the car stopped, and Dennis got out of the car under a big security light. Dennis' confederate then informed her that he was going to take her back to campus.

After other events, not necessary to be related here, the confederate left her on a dead end road near the campus, and she hysterically ran back to her dorm parking lot. She immediately reported this crime to the University Police, and they took her to the Oxford-Lafayette County hospital at approximately 12:30 p.m. where she was examined.

After being examined she gave the University Police Department the information she had. She rode with the police down the roads where she was taken and viewed two line-ups. She was able to identify Dennis out of the second line-up. He was picked up for questioning around 1:00 a.m. on July 2, 1986.

On July 3, 1986, a male sexual assault kit test was performed on Dennis, and a blood sample was taken. In due course he was indicted on two counts for kidnapping and rape, tried, and convicted as we have stated. He now appeals to this court.

On Appeal, defendant asserts that the following things occurred and he assigns them as error:

1. There was improper exercise of peremptory challenges to exclude black venire persons from the jury.

2. The foreman of the jury was a long-term private practice client of the county prosecutor.

3. Defense counsel was not served with a copy of the witness list upon which the prosecution relied at trial.

4. The trial court allowed testimony from a police officer speculating that Ken Dennis was involved in other crimes.

5. The trial court refused to exclude highly prejudicial medical evidence of minimal probative value, and refused to appoint a medical expert to assist the defense.

6. The trial court improperly refused jury instructions concerning non-flight.

7. The prosecution improperly interrupted defense's closing argument with the prejudicial objection, and said prejudice

Page 681

was then amplified by the trial court's ruling.

We examine each of these complaints below.

II. DISCUSSION

A.

THE PROSECUTION EXERCISED PEREMPTORY CHALLENGES TO EXCLUDE BLACK VENIRE PERSONS FROM THE JURY IN THE ABSENCE OF VIABLE NON-DISCRIMINATORY REASONS FOR SUCH EXCLUSION.

The defendant relies on the decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in support of his suggestion of discrimination. Batson established that a defendant can make out a prima facie case in the following manner:

[T]he defendant first must show that he is a member of a cognizable racial group, Castenada v. Partida [430 U.S. 482, 494, 97 S.Ct. 1272, 1275, 51 L.Ed.2d 498 (1977) ], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Avery v. Georgia, [345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953) ]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. (emphasis added)

Batson v. Kentucky, 476 U.S. at 96, 106 S.Ct. at 1722-23, 90 L.Ed.2d at 87.

We hold that no prima facie case of racial discrimination has been shown in this case. To establish such a case, the defendant must show, among other things, that the government's use of peremptory challenges and any other relevant circumstances raise an inference that the government excluded prospective jurors on the basis of their race. See Lockett v. State, 517 So.2d 1346, 1349, 1355 (Miss.1987) (reviewing requirements of a prima facie case under Batson ); U.S. v. Montgomery, 819 F.2d 847 (8th Cir.1987) (discussing the third prong of the Batson requirements for a prima facie case). The defendant in this case failed to meet his burden of proof in demonstrating that the prosecution exercised his peremptory challenges in a racially discriminatory manner. See U.S. v. Cartlidge, 808 F.2d 1064 (5th Cir.1987).

Here the defendant merely stated that the prosecutor had exercised five of his seven peremptory challenges against blacks, and then he asserted "We would raise discrimination." While the court did not require it, the prosecutor offered to state his race-neutral reasons for the challenges that were made. The Court said "You may proceed if you want it part of the record, Mr. Little." Batson contains a three-pronged test for a prima facie case, and the third prong was completely ignored. The prosecutor had several challenges left. The defendant had several left. Numerous potential black jurors were left uncalled, and one black juror was in the box. The victim of the crime charged was black, as well as the defendant. When we examine all of the facts and circumstances surrounding the case, they simply fail to create an inference that the prosecution purposefully and intentionally struck potential jurors solely because they were black. United States v. Grandison, Evans, and Kelly, 885 F.2d 143 (4th Cir.1989).

B.

THE FOREMAN OF THE JURY WAS A LONG-TERM PRIVATE PRACTICE CLIENT OF THE COUNTY PROSECUTOR.

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