Gary v. State, No. 98-KA-00091-SCT.

• Decision Date: 01 June 2000
• Docket Number: No. 98-KA-00091-SCT.
• Citation: 760 So.2d 743
• Parties: Cerdick D. GARY a/k/a Cedrick D. Gary a/k/a Cedrick Deeshawn Gary a/k/a Cedrick Deshawn Gary v. STATE of Mississippi.
• Court: Mississippi Supreme Court

760 So.2d 743

Cerdick D. GARY a/k/a Cedrick D. Gary a/k/a Cedrick Deeshawn Gary a/k/a Cedrick Deshawn Gary v. STATE of Mississippi.

No. 98-KA-00091-SCT.

Supreme Court of Mississippi.

June 1, 2000.

Thomas Michael Reed, Hattiesburg, Attorney for Appellant.

Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.

EN BANC.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. This matter came before us from the Forrest County Circuit Court. Cedrick D. Gary was convicted of armed robbery and sentenced to 45 years in the custody of the Mississippi Department of Corrections.

STATEMENT OF FACTS

¶ 2. On the night of March 21, 1994, Phillip Rhodes ("Rhodes") and James McBeth ("McBeth") were riding around Hattiesburg, Mississippi, in a 1985 Chevrolet pickup truck that belonged to Rhodes's father. At the intersection of North 21st Street and Quinn Street, Rhodes and McBeth were waived down by Terry Robertson¹ ("Robertson") and Cedrick D. Gary ("Gary"), two former school friends. Robertson and Gary requested a ride and were allowed to enter the truck with Rhodes and McBeth.

¶ 3. Since the facts of the case become contradictory at this point, it is necessary to address both sides separately. According to the testimony of both Rhodes and McBeth, Robertson and Gary entered the truck, and the four were seated from driver side to passenger side as follows: McBeth (driver), Robertson, Gary, and Rhodes. Shortly thereafter, Robertson put a .22 caliber handgun to McBeth's head and ordered him to stop the truck. McBeth stopped the truck, put it in park, and sat there. Robertson then reached over, turned off the ignition, and instructed Rhodes and McBeth to exit the vehicle. According to the testimony of Rhodes and McBeth, McBeth and Robertson exited on the driver's side of the vehicle, while Rhodes and Gary exited on the passenger's side.

¶ 4. McBeth testified that, after exiting the driver's side, Robertson continued to point the gun at him and demanded money. Rhodes testified that Gary, after exiting on the passenger's side, demanded money from him as well. Rhodes testified that he gave Gary the money, and Gary then hit him with a closed fist twice in the head and once in the shoulder. McBeth corroborated Rhodes's testimony by saying he witnessed Gary hit Rhodes three times. McBeth further testified that when Gary began hitting Rhodes, Robertson "turned to watch," and McBeth was able to hide his money in his sock. Robertson took $2 off the dashboard of the truck.

¶ 5. Additionally, McBeth testified that Robertson then walked to the passenger side, exchanged words with Rhodes, walked back to the driver's side, pointed the gun at McBeth, and ordered everyone to get back into the truck. Rhodes refused and told McBeth to run. According to the testimony of both Rhodes and McBeth, after they began running Robertson and Gary jumped in the truck. A shot was fired from the passenger side of the truck, and both Rhodes and McBeth testified that Gary was on the passenger side. Rhodes and McBeth ran to Rhodes's house on Melba Street and called the police. Officer Ted Socha was summoned, and the truck was found on 25th Avenue shortly thereafter.

¶ 6. Gary's testimony is substantially different. According to Gary, Robertson and Gary entered the truck, and the four were seated from driver side to passenger side as follows: Rhodes (driver), Robertson, Gary, and McBeth. Gary testified that Robertson pulled out a .22 caliber handgun and told Rhodes to turn off the truck. Gary stated that Rhodes and Robertson exited on the driver's side of the vehicle, while he and McBeth exited on the passenger's side. Gary testified that upon exiting the truck Robertson placed the gun to Rhodes's head and demanded his money.² Gary further testified that Rhodes initially did not give Robertson the money and asked him why he was doing this. Gary then testified that he walked over to the driver's side of the vehicle where Robertson and Rhodes were located. Gary contends that he punched Rhodes in the head once in order to "save him." Gary asserts that he was trying to save Rhodes's life by punching him in the head "so he would be quiet." Rhodes then gave up the money. According to Gary's testimony, he took no money from either McBeth or Rhodes, and only Robertson received the money.

¶ 7. Rhodes and McBeth fled. Gary testified that he drove the truck and that Robertson was on the passenger side. As Gary drove, "[Robertson] stuck the gun out the window and fired a shot." Gary testified that he stopped the truck three to four blocks later on 25th Avenue and ran to his house on Third Street. Gary argues that he was only following Robertson's directions because he was "scared" and "had never seen him in that type of anger before." Gary contends that he did not know of the gun prior to the event, never touched the gun, and only took the truck under the direction of Robertson.

¶ 8. On July 12, 1994, Gary was convicted in the Circuit Court of Forrest County on a charge of armed robbery and was sentenced to a term of 45 years in the custody of the Mississippi Department of Corrections. The personal property alleged to have been taken by Robertson and Gary was $7 in U.S. currency and a 1985 Chevrolet Silverado Truck. On August 1, 1994, a Motion for New Trial and /or J.N.O.V. was filed. This motion was heard and denied by the circuit court on January 8, 1998. A Notice of Appeal was filed on January 20, 1998, but no Brief of the Appellant was filed. Consequently, substitute counsel was appointed, and this appeal was perfected to this Court.

ANALYSIS

1) WHETHER THE COURT ERRED IN FAILING TO SUSTAIN THE BATSON CHALLENGE RAISED BY THE DEFENDANT AT TRIAL

¶ 9. In Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) the Court held that a defendant may establish a prima facie case of purposeful discrimination during jury selection based solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish the prima facie case under Batson, a defendant must show the following:

[He] is a member of a cognizable racial group, 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 which permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that the facts and 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.

Walters v. State, 720 So.2d 856, 865 (Miss. 1998). "The burden then shifts to the State to come forward with a race-neutral explanation for challenging the jurors." Mack v. State, 650 So.2d 1289, 1296 (Miss. 1994). Finally, the trial court must determine whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory challenge. Walters, 720 So.2d at 865.

¶ 10. "We accord great deference to the trial court in determining whether the offered explanation under the unique circumstances of the case is truly a race-neutral reason." Id. "[A] trial judge's factual findings relative to a prosecutor's use of peremptory challenges on minority persons... will not be reversed unless they appear clearly erroneous or against the overwhelming weight of the evidence." Stewart v. State, 662 So.2d 552, 558 (Miss. 1995). "This perspective is wholly consistent with our unflagging support of the trial court as the proper forum for resolution of factual controversies." Id.

¶ 11. Gary contends that the State used its peremptory challenges in an unconstitutional manner, specifically alleging that the State had "effectively disenfranchised members of the black race" since 8 of the State's 13 peremptory challenges were against black veniremen. Gary also relies on Hatten v. State, 628 So.2d 294 (Miss. 1993), and asserts that the trial court failed to make an on-the-record factual finding that the explanations offered by the State were race neutral. After the State provided reasons for its peremptory challenges, the trial judge made the following statement:

With the exception of the gentlemen who is the accountant I would say under the Batson decision that I don't think any of these, both for the State or the defense, were stricken along racial lines or to constitute a jury that is racially consistent ...

¶ 12. Gary argues that a mere conclusive statement made by the trial court as to whether it finds a discriminatory purpose or race neutrality is not the specific finding required by Hatten. "We place our trust in the trial judges to determine whether or not a discriminatory motive underlies the prosecutor's articulated reasons ... [A trial judge], in determining which explanations are sufficiently race-neutral and which are not, should have an equally `clear and reasonably specific' explanation for his ruling." Id. at 299. Furthermore, Hatten requires "an on the record, factual determination, of the merits of the reasons cited by the State." Id. at 298. Mere broad conclusions at the end of the Batson process will not suffice. However, where a trial judge fails to elucidate such a specific explanation for each race neutral reason given, we will not remand the case for that Batson-related purpose alone. This Court is fully capable of balancing the Batson factors in cases such as this one. Continued remand of such cases only wastes the trial court's limited resources and acts to further delay justice.

¶ 13. Before moving to a review of those race-neutral reasons, we point out that the record clearly illustrates that Gary's counsel offered no rebuttal to the State's explanations for its peremptory strikes. In Bush v. State, 585 So.2d 1262 (Miss.1991), we stated...