Hardison v. State, 2009–KP–00233–SCT.

Citation94 So.3d 1092
Decision Date09 August 2012
Docket NumberNo. 2009–KP–00233–SCT.,2009–KP–00233–SCT.
PartiesMerlin HARDISON v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

OPINION TEXT STARTS HERE

Merlin Hardison, appellant, pro se.

Office of the Attorney General by W. Glenn WattsScott Stuart, attorneys for appellee.

Before WALLER, C.J., DICKINSON, P.J., and KITCHENS, J.

DICKINSON, Presiding Justice, for the Court:

¶ 1. The trial judge erroneously denied the accused a peremptory strike by holding that a juror's previous service on a jury in a criminal case was not a race-neutral reason for the strike. During voir dire, the juror had expressed regret that the jury was unable to reach a verdict. We reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2. When, at the beginning of Merlin Hardison's armed-robbery trial, his counsel exercised a peremptory strike on a juror, the State raised a Batson1 challenge. The trial judge required Hardison's counsel to provide a race-neutral reason for the strike. Hardison's counsel responded that, during voir dire, the juror had expressed regret that a previous jury on which he had served in a criminal case had failed to reach a verdict. The trial judge held this was not a valid race-neutral reason and denied Hardison the peremptory strike.

¶ 3. A jury convicted Hardison, and he appealed, raising nine issues. However, we find the trial judge's denial of Hardison's peremptory strike to be dispositive. We also shall address Hardison's claim that he was denied his right to a speedy trial.

ANALYSIS

¶ 4. Were Hardison to prevail on the speedy-trial issue, we would dismiss this case. Therefore, we address that issue first.

I. Hardison's right to a speedy trial was not violated.

¶ 5. Hardison was indicted on February 10, 2004, arrested on March 2, 2005, and brought to trial on May 22, 2006. Because a total of 833 days passed between the indictment and trial, Hardison claims the delay violated his Sixth Amendment right to a speedy trial. But Hardison failed to make this objection at the trial in circuit court, and we remanded the issue to the circuit court for a hearing on the matter. As ordered, the circuit court held a hearing for the limited purpose of allowing the State an opportunity to show reason for the delay and to overcome the presumption that Hardison was prejudiced by the twenty-seven-month delay. Based on the circuit judge's findings of fact and conclusions of law, we now hold that there was no violation of Hardison's constitutional right to a speedy trial.

¶ 6. The Sixth Amendment of the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....” 2 And when a defendant claims the State did not provide a speedy trial, we analyze the claim using the following four factors announced in Barker v. Wingo: “Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” 3

¶ 7. In weighing the Barker factors, we look at “the quality of evidence available on each and, in the absence of evidence, identification of the party with the risk of non-persuasion. In the end, no one factor is dispositive. The totality of the circumstances must be considered.” 4

A. Length of Delay

¶ 8. It is well-settled that [t]he Sixth Amendment clock begins to tick upon indictment when no prior arrest on the alleged offense is involved.” 5 And this Court has held that an eight-month delay is presumptively prejudicial.6 Because the delay in bringing Hardison to trial was more than three times the presumptively prejudicial eight-month mark, this factor clearly weighs against the State, thus triggering an examination of the remaining Barker factors.

B. Defendant's Assertion of His Rights

¶ 9. The second Barker factor is whether or not the defendant asserted his Sixth Amendment right in the trial court.7 But we have long recognized that a defendant “has no duty to bring himself to trial.” 8 That statement would have no meaning at all if defendants who fail to demand a speedy trial nevertheless have Barker points” taken away. So while a defendant is awarded points for asserting his right, the failure to demand a speedy trial does not count against Hardison. Instead, as here, the factor favors neither the defendant nor the State—it remains neutral.

C. Reason for Delay

¶ 10. After the alleged crime, Hardison fled to California—where he remained for almost a year following the indictment. This time—385 days—is attributable to Hardison. Hardison eventually was arrested on March 2, 2005, and trial was set for May 9, 2005. But it was not until May 22, 2006, that Hardison was actually brought to trial. Between his arrest and trial, a total of 445 days elapsed. Of this delay, 316 days resulted from continuances sought by Hardison himself. This time is attributable to Hardison as well. So, of the 833 total days between indictment and trial, 701 days are attributable to Hardison.

D. Prejudice to the Defendant

¶ 11. An eight-month delay is presumptively prejudicial, and the delay here was more than three times that amount.9 But because a majority of that delay—701 of 833 days—is attributable to Hardison, the State has overcome the presumption of prejudice in this case.

E. Balancing the Barker Factors

¶ 12. Not a single Barker factor weighs in Hardison's favor, and one—reason for the delay—weighs heavily against him. Therefore, we hold that Hardison was not denied his Sixth Amendment right to a speedy trial.

¶ 13. After finding no Sixth Amendment violation, we move to Hardison's other claims. And because we find the denial of Hardison's peremptory challenge without a proper Batson analysis constituted reversible error, we reverse and remand for a new trial without addressing the remaining issues.

II. The trial court erroneously denied Hardison's right to a peremptory strike.

¶ 14. Hardison argues that the trial court denied his constitutional right to a jury of his peers when it sustained the State's objections to his peremptory challenges. Hardison's specific argument for this issue, however, is that the trial court erred by not requiring the State to make a prima facie showing of racial discrimination and by sustaining the State's Batson10 challenge.

¶ 15. During jury selection, and after Hardison's counsel struck four white veniremembers, the State made a Batson challenge. Hardison's counsel argued that the State did not present a prima facie case of discrimination, because the defense struck both African–American and white veniremembers. The State rebutted, arguing that defense counsel struck highly educated older persons, many of whom had served on juries in the past. Ultimately, the trial judge found that the State had raised a prima facie case of discrimination and required Hardison to present race-neutral reasons for striking four white veniremembers: James Gray, Donald Wilder, Johnny Ramia, and John Danahue.

¶ 16. As required, Hardison's counsel gave reasons for striking those four witnesses. The trial judge agreed with defense counsel's race-neutral reasons for all but one of the strikes (James Gray). During voir dire, Gray said that he had served on a jury in an armed-robbery case and that the jury did not reach a verdict because of prosecutorial error. Hardison's counsel argued that this response suggested to him that Gray regretted not being able to reach a verdict, so he was more likely to convict. Hardison's counsel pointed out that the defense was not trying to strike Gray for cause, and that the reason was race-neutral. The trial judge, however, found the reason insufficient, denied Hardison the peremptory challenge, and restored Gray to the jury pool.

¶ 17. In Batson v. Kentucky, the United States Supreme Court held that the prosecution may not use peremptory strikes in a discriminatory manner. 11 This Court has said that the Batson analysis applies to both prosecutors and defendants.12 And when the Batson analysis is used against the defense, this Court has referred to it as a reverse- Batson challenge.13 We analyze a Batson challenge using a three-part test:First, the party objecting to the peremptory strike of a potential juror must make a prima facie showing that race was the criterion for the strike. Second, upon such a showing, the burden shifts to the State to articulate a race-neutral reason for excluding that particular juror. Finally, after a race-neutral explanation has been offered by the prosecution, 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 strike, i.e., that the reason given was a pretext for discrimination.14

A. Prima facie showing

¶ 18. To establish a prima facie case, the opponent of a peremptory strike must establish that (1) the opponent is a member of a cognizable class, such as a racial group; (2) the proponent has used peremptory strikes to remove veniremembers in that class; and (3) the facts and circumstances give rise to an inference that the proponent used peremptory strikes to purposefully remove individuals of that class.15 In Powers v. Ohio, the Supreme Court modified that test.16 Under Powers, a defendant has standing to challenge the exclusion of a juror even if that juror is not of the defendant's race.17 The critical inquiry, then, is whether “the opponent has met the burden of showing that the proponent has engaged in a pattern or practice of strikes based on race or gender.” 18

¶ 19. Based on this Court's highly deferential standard, we cannot say that the trial court erred by finding a prima facie case of racial discrimination. Again, the record does not show the racial makeup of the venire, so we cannot determine how the defendant's strikes compared to the overall composition of the venire. And, as this Court stated in Birkhead v. State, [w]e cannot override the trial court when this Court does not even know the racial makeup of the venire or the...

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    ...and public trial by an impartial jury ....").109 This Court's order granting leave cited a plurality opinion in Hardison v. State , 94 So. 3d 1092, 1101 & n. 37 (Miss., 2012), which identified "[a]t least five states" that have adopted an automatic-reversal rule as a matter of state law and......
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