Farmer v. State, 1998-KA-01671-COA.

• Decision Date: 22 February 2000
• Docket Number: No. 1998-KA-01671-COA.,1998-KA-01671-COA.
• Citation: 764 So.2d 448
• Parties: Willie FARMER a/k/a Willie Lee Farmer, Jr., Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

764 So.2d 448

Willie FARMER a/k/a Willie Lee Farmer, Jr., Appellant, v. STATE of Mississippi, Appellee.

No. 1998-KA-01671-COA.

Court of Appeals of Mississippi.

February 22, 2000.

Rehearing Denied May 23, 2000.

Certiorari Denied August 17, 2000.

Calvin D. Taylor, Pascagoula, Attorney for Appellant.

Office of the Attorney General by Pat S. Flynn, Attorney for Appellee.

BEFORE KING, P.J., BRIDGES, AND MOORE, JJ.

MOORE, J., for the Court:

¶ 1. Appellant Willie Lee Farmer was indicted by a Jackson County grand jury for touching of a child for lustful purposes. Following a trial, the jury found Farmer guilty as charged. The circuit court sentenced Farmer as an habitual offender to fifteen years imprisonment in the custody and control of the Mississippi Department of Corrections, without benefit of probation or parole, with five years of the sentence suspended and five years of supervised probation. Aggrieved, Farmer raises the following issues on appeal

I. IT WAS ERROR FOR THE COURT TO DENY THE APPELLANT'S CHALLENGES FOR CAUSE TO ALL THE VENIREMEN WHO ON VOIR DIRE STATED THEY HAD BEEN A VICTIM OF A SEXUAL ACT, OR WERE A RELATIVE OF A PERSON WHO HAD BEEN A VICTIM OF A SEXUAL ACT;

II. IT WAS ERROR FOR THE COURT TO ALLOW THE STATE'S PEREMPTORY CHALLENGES OF JURORS O.D. ALFORD, JR. AND MARCELLA WILLIAMS FOR ALLEGED RACIALLY NEUTRAL REASONS;

III. THE COURT IN FAILING TO SUSTAIN NUMEROUS OBJECTIONS BY THE APPELLANT DURING THE COURSE OF THE TRIAL, EFFECTIVELY DENIED THE APPELLANT FROM RECEIVING A FAIR TRIAL;

IV. IT WAS ERROR FOR THE COURT TO DENY THE APPELLANT'S MOTIONS FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE-IN-CHIEF AND AT THE CONCLUSION OF THE ENTIRE CASE RESULTING IN A VERDICT AGAINST THE OVERWHELMING WEIGHT OF CREDIBLE EVIDENCE ADDUCED AT TRIAL, AND CONTRARY TO THE LAW OF THIS STATE; AND

V. THE CULMINATION OF ERROR IN THIS TRIAL REQUIRES REVERSAL.

FACTS

¶ 2. On November 21, 1995, during her Thanksgiving break from school, eight-year-old C.B. spent the night with her paternal grandmother, affectionately known as "Grandma Munch." C.B. and her three siblings lived with their mother Sharita and their maternal grandmother Vickie on the same street as Grandma Munch. Sharita was separated from her children's father, Clarence, Grandma Munch's adopted son and nephew by blood. Clarence resided with Grandma Munch. Appellant Willie Lee Farmer was temporarily residing with his aunt, Grandma Munch, and his cousin Clarence on the night in question.

¶ 3. On the night of November 21, C.B. and her three siblings were put to bed on a sofa-bed in Grandma Munch's living room. During the night, Farmer lifted C.B. from the sofa bed and carried her to the bedroom not occupied by Grandma Munch. At some point, C.B. noticed that Farmer, who had lowered her into his bed, was naked. Farmer crawled into bed with C.B. then touched her in her vaginal area and on her buttocks. C.B. tried to get away from Farmer, but he held her down and threatened to kill her if she told anyone about the molestation. Farmer hit C.B. in the back when she attempted to flee his abuse. C.B. told her sister and brother about Farmer's molestation of her.

¶ 4. When C.B. returned to school after the Thanksgiving break, she attended a special program entitled "good touch, bad touch." When the program concluded, C.B. informed her teacher that she had been molested by her maternal grandfather, before he died, and by Farmer. The teacher took C.B. to visit Pamela Rogers, the school counselor. C.B. described Farmer's actions to Rogers. Rogers then contacted C.B.'s mother. Both the Ocean Springs Police Department and the Mississippi Department of Human Services (MDHS) were notified, and C.B. gave statements to Officer Mary Brown and to MDHS counselor Edward Brennan. In her statements to Rogers, Brennan, and Brown, C.B. reported that Farmer picked her up out of bed and took her to his bed, that Farmer touched her in her vaginal area and buttocks, and that Farmer threatened to kill her if she reported him. C.B. told Brennan and Brown that Farmer had gotten on top of her, and she told Brennan that Farmer had gone up and down on her. She also told Brennan and Brown that Farmer kissed her lips and neck and hit her on the back. C.B. told Brennan that she told her brother and sister about the incident, and Brennan testified that he confirmed this with her brother and sister.

¶ 5. Rogers, Brennan, and Brown all testified that C.B. was frightened and nervous and that she cried when giving her statements. She also expressed fear that Farmer would hurt her. Brennan testified that C.B. blamed herself for Farmer's heinous acts. Rogers testified that C.B. covered her mouth and whispered when she recounted the story of the molestation and that she hyperventilated. Sharita testified that her daughter had been having nightmares since this incident and had undergone psychiatric counseling. When Sharita found out that Farmer had molested her daughter, she went after him with a gun. She kicked down the door of Grandma Munch's house while Farmer attempted to escape through the back door. Sharita admitted that she jumped Farmer and that they fought on the ground until her sister broke them up.

LAW AND ANALYSIS

I. WAS IT ERROR FOR THE COURT TO DENY THE APPELLANT'S CHALLENGES FOR CAUSE TO ALL THE VENIREMEN WHO ON VOIR DIRE STATED THEY HAD BEEN A VICTIM OF A SEXUAL ACT, OR WERE A RELATIVE OF A PERSON WHO HAD BEEN A VICTIM OF A SEXUAL ACT?

¶ 6. Fourteen of the seventy-four members of the venire either were victims of some type of sexual abuse, or had family members who were victims of sexual abuse. The trial judge, sua sponte, excused for cause those who expressed their inability to be fair and impartial. The trial court refused to strike for cause eight of those who had stated that they could be fair and impartial.

¶ 7. In the case sub judice, the parties selected the petit jury off the record then went back on the record to read the list of those selected as jurors. The record does not reveal whether Farmer exercised any of his peremptory challenges. The record also does not reveal whether any of the eight venire members who were challenged for cause were actually selected to serve on the petit jury. A comparison of the names of the venire members who were challenged for cause and those actually selected reveals that five of the eight challenged for cause were not selected for the petit jury. It is not clear whether the remaining three challenged venire members were selected to serve on the jury because these venire members, denoted as numbers fifteen, forty-one, and fifty-eight in the record, were not clearly named.

¶ 8. Prerequisite to a claim of trial court error for failing to grant a challenge for cause Farmer must show "that he had exhausted all of his peremptory challenges and that the incompetent juror was forced upon him by the trial court's erroneous ruling." Chisolm v. State, 529 So.2d 635, 639 (Miss.1988). See also Martin v. State, 592 So.2d 987, 988 (Miss.1991); Hansen v. State, 592 So.2d 114, 129 (Miss.1991). A trial court will not be held in error for refusing a challenge for cause as long as there are unused peremptory challenges. Martin, 592 So.2d at 988. Farmer has not met the threshold burden set forth in Chisolm. He has neither shown that he exhausted all of his peremptory challenges nor complained that the challenged jurors were forced upon him by the trial court's ruling. The trial court may not, therefore, be held in error for its refusal to excuse the challenged venire members for cause.

II. WAS IT ERROR FOR THE COURT TO ALLOW THE STATE'S PEREMPTORY CHALLENGES OF JURORS O.D. ALFORD, JR. AND MARCELLA WILLIAMS FOR ALLEGED RACIALLY NEUTRAL REASONS?

¶ 9. Farmer, an African-American, complains that the State's exercise of two peremptory challenges to exclude two out of three African-Americans from the first jury panel was racially motivated and invalid under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He further alleges the trial court did not allow a full examination of the Batson issue regarding these two challenged venire members. Farmer's Batson challenge concerns venire members O.D. Alford and Marcella Williams. The prosecutor peremptorily challenged Alford because he did not complete his jury questionnaire, and he failed to respond to a voir dire question regarding the presumption of innocence. The prosecutor peremptorily challenged Williams because she looked familiar to the prosecutor and because she failed to respond to voir dire questions.

¶ 10. To successfully assert a Batson claim, the following procedure must ensue:

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Berry v. State, 728 So.2d 568 (¶ 11) (Miss. 1999) (citing Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). "When the prosecution gives race-neutral reasons for its peremptory strikes, the sufficiency of the defendant's prima facie case becomes moot." Manning v. State, 735 So.2d 323 (¶ 28) (1999) (citing Hernandez, 500 U.S. at 352, 111 S.Ct. 1859). We assume Farmer made the requisite prima facie showing because the prosecution articulated its racially neutral reasons.

¶ 11. Farmer argues for the first time on appeal that the prosecution's reasons for striking Alford and Williams are purely pretextual. He did not raise pretext to the trial court either during the Batson examination or in his motion for JNOV or alternatively for new trial. "It is incumbent upon a defendant claiming that proffered reasons are pretextual to raise the argument...