Goggins v. State, 57762

• Decision Date: 27 July 1988
• Docket Number: No. 57762,57762
• Citation: 529 So.2d 649
• Parties: Craig GOGGINS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 649

529 So.2d 649

Craig GOGGINS v. STATE of Mississippi.

No. 57762.

Supreme Court of Mississippi.

July 27, 1988.

Rehearing Denied Aug. 10, 1988.

Sam P. Cooper, Jr., Picayune, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

SULLIVAN, Justice, for the Court:

On August 29, 1986, a judgment was returned in the Circuit Court of Pearl River County, where Craig Goggins was tried and found guilty of armed robbery. Goggins was sentenced to twenty (20) years in the custody of the Mississippi Department of Corrections. He now appeals to this Court assigning the following as error:

I. That the trial court erred in allowing the district attorney to excuse without proper cause black jurors Melinda Hayes and Herbert R. Lee;

II. That the trial court erred in not sustaining appellant's motion to suppress the identification of appellant;

III. That the trial court erred in not sustaining appellant's objection to prosecution witness, Donna Cowart, dramatically leaving the witness stand to view and identify appellant in the courtroom; and

IV. That the verdict of the jury was against the great weight of the evidence.

At approximately 9:15 p.m. on March 13, 1985, a black man wearing a hood over his head and a blue handkerchief under his nose entered the JAS Quick Stop Convenience Store in Picayune, Mississippi, armed with a pistol and demanded money from store attendant Donna Cowart. The robber fled with $1,215.76.

A frontal and profile view of the robber was sketched by a local artist two days later based on Cowart's description. Cowart testified that the drawings were accurate. On April 18, 1985, a photographic lineup was presented to Cowart by Picayune Police Officer Charles Stockstill. Out of six photographs, Cowart identified Goggins as the robber. Coward also identified Goggins in court.

At trial, Goggins testified that he was at home in Slidell, Louisiana, at the time of the robbery. Five witnesses supported his alibi.

The jury found Goggins guilty of armed robbery but was unable to fix a penalty. Goggins was sentenced by the trial judge to twenty (20) years in the Mississippi Department of Corrections and he is presently incarcerated.

I.

THAT THE TRIAL COURT ERRED IN ALLOWING THE DISTRICT ATTORNEY TO EXCUSE WITHOUT PROPER CAUSE BLACK JURORS MELINDA HAYES AND HERBERT R. LEE.

This case involves a black defendant and a white victim. Goggins contends that the State improperly used two of its peremptory challenges to systematically exclude blacks from the jury. Goggins first objected to the composition of the special venire, claiming that it did not fairly represent the proportion of black and whites in Pearl River County. The court overruled the motion finding that the jury selection process was conducted correctly; the names were drawn from the jury box in the presence of the defendant and the cards gave no indication of race of the potential juror. Defense counsel conceded that he "had no problem with the way it was done."

After defense counsel had exercised his peremptory challenges the following exchange took place:

MR. McDONALD:

We would also like the record to show the first jurors were white and the defendant is black and that the defense attorney has given absolutely no reason for striking these first twelve jurors except the only possible reason there could be is racial reasons, and he has systematically continued to strike every white person on the jury.

MR. COOPER:

Now, that's not necessarily true. That's a conclusion of yours.

MR. McDONALD:

It's not true? What are the reasons you're striking those jurors, juror by juror?

MR. COOPER:

I choose to. They're white.

MR. McDONALD:

Is that reasonable for you to do that?

MR. COOPER:

Sure it's reasonable. I can do that.

MR. McDONALD:

I just want to find out if that's reasonable, because I am going to exercise my challenges like that, too, now that I've got it in the record that he says it's reasonable; and I just wanted to clarify that, Judge.

The State struck two black jurors, Melinda A. Hayes and Herbert R. Lee, resulting in a jury composed of eleven white jurors and only one black juror. The trial judge required the prosecutor to articulate his reasons for striking the black jurors.

Regarding Hayes, the prosecutor explained that she would not look at him directly and she had not fully completed the jury form (she had failed to answer how many miles she lived from the courthouse and the names of her father and mother). Regarding Lee, the prosecutor explained that Lee would not look at him and showed an indifferent attitude. When listing his reasons for excluding Hayes the prosecutor also said the following:

We also, based on the classes in jury selection that were given pursuant to the continuing legal education requirements conducted by the University of Mississippi School of Law that brought in jury selection experts and gave us instructions on groups of people that would generally be favorable to the Defense and favorable to the Prosecution, information for these groups to make a decision on selecting jurors and striking jurors, and during the course of that instruction it was indicated that in cases that involved young black women and young black men, they would be in a group that would be more favorable towards the defendant. And so we would like the record to show this woman is twenty-four years of age.

"A prosecutor's use of peremptory challenges to exclude blacks from a jury trying a black defendant may be the basis for a claim of purposeful racial discrimination under the due process clause." Thomas v. State, 517 So.2d 1285, 1286 (Miss.1987), citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In the case at hand, the trial judge wisely required the prosecutor to state his reasons for excluding the black jurors. However, no ruling was made on the sufficiency of the explanations given by the prosecutor. Recently, this Court has addressed Batson claims and stated the following:

Once the accused has made a prima facie case of intentional discriminatory use of one or more of the prosecution's peremptory challenges, the burden shifts to the prosecution to come forward with a racially neutral explanation for each of the challenges. Such an explanation "need not rise to the level of justifying exercise of a challenge for cause," 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88, but may not include the prosecutor's "assumption--or his intuitive judgment--that they [black jurors] would be partial to the defendant because of their shared race." 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.

Lockett v. State, 517 So.2d 1346, 1352 (Miss.1988), and Williams v. State, 507 So.2d 50, 52 (Miss.1987).

In the case at hand the prosecutor candidly admitted that black jurors were excused because the defendant was black. Batson condemns and forbids this practice. ¹ Since the United States Supreme Court's opinion in Batson represents a departure from prior case law, we offer, from Batson, the following:

Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors' race.

Batson v. Kentucky, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.

Because the prosecutor's use of peremptory challenges violated the Equal Protection Clause this case must be reversed and remanded for a new trial.

II.

THAT THE TRIAL COURT ERRED IN NOT SUSTAINING GOGGINS' MOTION TO SUPPRESS THE IDENTIFICATION.

Cowart testified that she viewed the robbery for only five to seven minutes. She also testified that the robber had a handkerchief under his nose and a hood over his head which came to just above his eyebrows. The hood did fall back at one point and she saw his hairline.

As noted earlier, Cowart described the robber to a local artist who sketched a frontal and profile view of the man. She also identified Goggins out of a photographic lineup and at trial. When Cowart picked Goggins out of the photographic lineup she recalled a prominent scar on the robber's forehead that she had failed to mention to the police prior to that time. She testified that seeing the scar made her certain Goggins was the robber.

It is difficult to ascertain exactly which identification Goggins argues should have been excluded. The cases cited in support of his argument deal with whether one identification was impermissibly suggestive so as to taint the other. Thus, this writer assumes that the question presented is whether the photographic lineup was impermissibly suggestive and if so was the in-court identification of Goggins tainted as a result. ² Both parties cite basically the same rules as authority for their arguments but naturally reach different conclusions therefrom.

The appropriate analysis is found in Wilson v. State, quoting Bankston v. State, 391 So.2d 1005 (Miss.1980):

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court held that even if the pretrial identification procedure had been unnecessarily suggestive the identification did not have to be excluded if upon consideration of the totality of the circumstances there was no substantial likelihood of misidentification. The Court set out five factors to be used in analyzing the totality of circumstances. These factors include:

(1) The opportunity of the witness to view the criminal at the time of the crime;

(2) The witness's degree of attention;

(3...