Hatten v. State, No. 91-KA-0144

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: SMITH; HAWKINS; SULLIVAN, J. dissents with separate written opinion joined in part by McRAE; BANKS, J., dissents with separate written opinion joined by SULLIVAN; McRAE; HAWKINS; White; Marshall; SULLIVAN; McRAE; BANKS; Russell; SULLIVAN
• Citation: 628 So.2d 294
• Parties: Michael Eugene HATTEN v. STATE of Mississippi.
• Decision Date: 24 November 1993
• Docket Number: No. 91-KA-0144

Page 294

628 So.2d 294 Michael Eugene HATTEN
v.
STATE of Mississippi. No. 91-KA-0144. Supreme Court of Mississippi. Nov. 24, 1993.

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Carter Dobbs, Jr., Amory, for appellant.

Michael C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

SMITH, Justice, for the court:

Michael Hatten was found guilty of robbery in the Circuit Court of Monroe County and sentenced to fifteen years imprisonment. On appeal to this Court, Hatten raises five assignments of error, one of which merits discussion, the remaining being totally devoid of merit. Hatten, who is African-American, claims the trial court committed reversible error by failing to find that two members of the venire were improperly struck from the jury panel, in violation of Hatten's equal protection rights under Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S.Ct. 1712, 1716-17, 90 L.Ed.2d 69, 80 (1986).

We mandate prospectively the requirement that a trial judge make an on-the-record factual determination that each reason proffered by the State for exercising a peremptory challenge is, in fact, race neutral. This procedure is necessary to protect the rights of both defendants and potential jurors, as well as making clear the ruling of the trial judge for purposes of appellate review. However, finding no violation of Hatten's equal protection rights under the facts presented, we affirm Hatten's conviction and sentence.

FACTS

A Monroe County Grand Jury indicted Michael Hatten for the crime of armed robbery on or about November 18, 1989, of an employee of the Southside Amoco gas station in Aberdeen, Mississippi. The indictment charged that Hatten, by the "exhibition of ... what appeared to be a pistol concealed in [his] pocket" assaulted an Amoco employee and stole $65 from the station. Hatten entered a plea of not guilty in March 1990, and trial was held in June 1990. Because we address only the Batson issue presented, the bulk of the underlying facts are omitted as unnecessary to the opinion.

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Demetric Arville Ewing testified he was working at the Southside Amoco gas station on the evening of November 18, 1989. He was taking inventory at about 7:45 p.m. when he heard a person outside the locked door. Ewing opened the door and the man asked whether Ewing had any oil. The man then said: "I'll tell you what, I don't want to make a scene or anything but I'm about to rob you." After stating he had a pistol, the man told Ewing to go to the cash register. Ewing handed him all the money in the register, and then, taking some packs of cigarettes, the man instructed Ewing to "get down and count to one hundred." The robber left and Ewing called the police. Ewing estimated about $60 had been stolen.

Hatten testified that on the night of November 18, he smoked crack cocaine with Annie McFarland at Hatten's house. According to Hatten, he was told his cigarette contained marijuana, but it was actually laced with crack. Hatten testified he had never used crack before, and the drug "put me in a state of incapable thinking." After spending all his money on crack, Hatten still wanted more and stated that McFarland told him "she knew a guy at a place that we can obtain money from by going in the place and asking for it." Arriving at the Amoco station, McFarland gave Hatten a brown paper bag and told Hatten to go in, tell the attendant he came to pick up the money and ask for a carton of cigarettes.

Hatten did so and told the attendant to turn around and count to one hundred before turning back around. McFarland then drove around, picked up Hatten, and the two left. They used the stolen money to buy more crack.

Hatten was cross-examined on why his explanation about smoking crack did not appear in his statement to police; he stated he had told this to the police, but they did not write it down. Hatten further stated the language "this is a holdup" was included in his statement by the police to further incriminate him.

Annie McFarland took the stand, but would state only her name and address for the record. She would answer no further questions, invoking her Fifth Amendment right against self-incrimination.

The jury, deliberating for less than ten minutes, returned a guilty verdict on the lesser charge of robbery. Hatten was sentenced to fifteen years under the supervision of the Mississippi Department of Corrections.

DISCUSSION

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PERMITTING THE

STATE TO EXCLUDE BLACKS FROM THE JURY UNDER BATSON

v. KENTUCKY.

In the proceedings below, the State exercised five of its peremptory challenges against black veniremen. Their names and reasons given for the challenges were as follows:

S-1: Venirewoman # 13, Christine Dobbs.

Rebuttal: Venirewoman said her daughter was being represented by Hatten's attorney in an on-going lawsuit.

Response: None from Hatten.

Ruling: Non-pretextual. Venirewoman excused.

S-2: Venireman # 16, Leonard Whitley.

Rebuttal: State "did not like the appearance of Mr. Whitley, felt that he would not be a good juror to hear this case."

Response: Hatten began to respond but was instructed by the trial court that no response was needed.

Ruling: Pretextual. Venireman seated on jury.

S-3: Venireman # 21, Harry A. Swan.

Rebuttal: State had been informed by local law enforcement officers that Venireman # 21 had been arrested for bootlegging in the past. As such, "Mr. Swan would probably not be the type of law-abiding citizen in Monroe County that we'd like to see serve as a juror." The State then called a deputy with the Monroe County Sheriff's Department who testified under oath that he apprehended Swan driving into a dry portion of the county with a truckload of liquor.

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Response: Hatten did not have an opportunity to respond to the officer's testimony. Prior to the deputy's testimony, Hatten objected that the State's contention that Swan was bootlegging was unsubstantiated.

Ruling: Non-pretextual. Venireman excused.

S-4: Venireman # 22, Lynda Kay Strong.

Rebuttal: Strong was inattentive and giggling during voir dire. The State also alleged Strong "caused a disturbance with what seemed to be a candy wrapper." The State also asserted: "She stood up at one time and tried to explain as to whether or not she knew one of the witnesses; made very little sense. We could not ascertain as to whether or not she did know this person."

Response: Hatten stated: "As to Lynda Kay Strong, her being allegedly inattentive and giggling, I didn't observe that, Your Honor. And about her answers, the State had the opportunity to question her, and if they couldn't ask the right question or enough questions to get an answer, then that's their fault."

Ruling: Non-pretextual. Venirewoman excused.

S-5: Venireman # 27, Alonzo Sykes.

Rebuttal: Sykes stated during voir dire that he knew Annie McFarland, the alleged getaway driver in the case. Sykes also stated he knew Lee Anna Walker, another individual who might be called as a witness.

Response: McFarland and Walker may be called by the State as well as the defense. Also, there were other veniremen who knew potential witnesses who were not struck.

Ruling: Non-pretextual. Venireman excused.

The trial judge's ruling on the Batson issue was as follows:

THE COURT: All right. The Court finds that the State has properly articulated non-racial reasons for using their challenges against juror Christine Dobbs, juror Harry A. Swan, juror Lynda Kay Strong and juror Alonzo Sykes. However, I don't find there was sufficient reasons even though it appeared to be non-racial or could appear to be non-racial. He's black; if they don't like his looks it may be because he is black, and so, therefore, I'm not going to allow the State to challenge juror Leonard McKinley Whitley, Jr. He will be placed on the jury unless the defendant desires to challenge him.

On appeal, Hatten challenges the determination of the trial judge regarding the use of peremptory strikes against Venirewoman Linda Kay Strong (# 22) and Venireman Alonzo Sykes (# 27). Hatten claims: "The Court made a finding that the State had properly articulated non-racial reasons for the using of peremptory challenges against these two prospective jurors. The Court made no factual determination as to whether the facts as stated by the assistant district attorney were true and correct or not." Hatten concludes the trial court's failure to make factual findings regarding the validity of the reasons given by the State for the use of its challenges requires reversal of this case.

The State maintains: "All that is necessary is that there exist support in the record for the court's decision," and that there is nothing in the record which would indicate that the trial court's ruling was "clearly erroneous or against the overwhelming weight of the evidence." Lockett v. State, 517 So.2d 1346, 1350 (Miss.1987).

At the outset we point out that this area of the law is one in which it is most difficult to make a record. It is important to note that Hatten's attorney, for example, does not deny the State's allegations that Venirewoman Strong was inattentive and giggling, only that he did not observe this demeanor. Calling attention to a such a matter in front of the entire venire would tend to potentially prejudice other veniremen by the comments to the trial judge. Further, by the time a matter is called to the trial judge's attention, it may no longer exist. This type of situation requires a trial judge to constantly scan the trial proceedings with eyes like an eagle. What will we decide when asked to determine whether or not some potential juror gave a glaring look to a defendant or his counsel during voir dire?

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We point out the difficulties involved in every Batson determination in order to admonish parties that the failure to provide this Court with a complete record for our review only complicates matters. The portion of the jury selection process wherein the State and Hatten...