McGee v. State

• Decision Date: 18 January 2007
• Docket Number: No. 2003-CT-01686-SCT.,2003-CT-01686-SCT.
• Citation: McGee v. State, 953 So.2d 211 (Miss. 2007)
• Parties: Jerry McGEE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

953 So.2d 211

Jerry McGEE v. STATE of Mississippi.

No. 2003-CT-01686-SCT.

Supreme Court of Mississippi.

January 18, 2007.

Thomas W. Powell, attorney for appellant.

Office of the Attorney General, by W. Daniel Hinchcliff, attorney for appellee.

EN BANC.

ON MOTIONS FOR REHEARING ON WRIT OF CERTIORARI

WALLER, Presiding Justice, for the Court.

¶ 1. The motions for rehearing filed by Jerry McGee are granted. The previous opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Jerry McGee was convicted of two counts of armed robbery by a Hinds County Circuit Court jury and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. The Court of Appeals reversed the judgment of conviction. See McGee v. State, 953 So.2d 241, 2005 WL 2739827 (Miss.Ct.App.2005). We affirm the decision of the Court of Appeals, reverse the judgment entered and sentence imposed by the Circuit Court of the First Judicial District of Hinds County, and remand for a new trial in accordance with this opinion.

FACTS

¶ 3. On January 4, 2000, McGee approached two women with an unloaded .12 gauge pistol grip shotgun, which was wrapped up in a yellow cloth, and demanded their money. The women testified they never saw the gun, but they could tell it was a gun under the yellow cloth. The women screamed and ran, and McGee grabbed one of their purses. A nearby security guard heard the screams and saw McGee running toward him with a purse. When the guard gave chase, McGee threw the purse at the guard. The guard tackled McGee, and the shotgun fell to the ground. The guard was able to restrain McGee until police arrived. A Jackson police officer testified that he saw the shotgun on the ground with a yellow cloth wrapped around the handle. He retrieved the gun but left the yellow cloth. McGee signed a confession but denied that he ever exhibited the shotgun or pointed it at the victims.

¶ 4. In McGee's first trial, a mistrial was declared because of a hung jury. The second trial resulted in a conviction. The Court of Appeals reversed the conviction, finding that gender discrimination by the State in the selection of the jury warranted a new trial under the plain error doctrine. We granted the State's petition for writ of certiorari and now find that the Court of Appeals was correct in its decision.

DISCUSSION

BATSON VIOLATION

¶ 5. McGee raised a Batson challenge during voir dire arguing the State was impermissibly striking African-American jurors.¹ The prosecutor gave gender as her race-neutral reason for striking a juror:

BY THE STATE: Your Honor, on panel number 5 juror number 4, Mr. Washington. I actually liked him. He has a college education, is well-educated except for the fact that his brother apparently was convicted in a drug trial in Madison County, and that did give me some concern. That was the reason I struck him.

BY THE COURT: But Ms. Deandrea's [another juror] mama was convicted of a drug crime in Hinds County. You didn't strike her.

BY THE STATE: I agree, Your Honor.

BY THE COURT: Tell me the difference between her and a black man whose [brother was convicted].

BY THE STATE: Well, Your Honor, it's difficult to take it on a juror by juror basis. I took these jurors as a whole. There weren't any specific things other than the way they-like I said with Mr. Washington, it concerned me that his brother was in Madison County.

Q. But Ms. Deandrea's mama being convicted didn't concern you?

A. And, Your Honor, the reason I don't like trying to do these Batson challenges piecemeal is because it's difficult because there are going to be jurors as we go along throughout this panel that I absolutely accept that are African-Americans that have relatives that have convictions. So it's difficult for me to explain in one case when—

Q. Right now all I'm asking you is explain why you weren't concerned about Ms. Deandrea's mother who has this conviction for a drug offense.

A. Your Honor, that did concern me. The other reason—and it had nothing to do with Mr. Washington's race—it's that he's a male. And I don't know if gender is discrimination or something, but Ms. Deandrea is a female, so between the two, a female or a male, I would rather have a female, you know, taking criminal convictions, if that family member have [sic] criminal convictions.

¶ 6. McGee made no objection to the State's use of gender as a race-neutral reason for excluding the juror. The Court of Appeals characterized defense counsel's failure to object as a failure to raise a Batson issue and found that neglecting to raise such an objection would normally bar McGee's argument concerning the State's use of gender in jury selection. McGee, 953 So.2d at 243-45, 2005 WL 2739827, at *2-3; see also Weeks v. State, 804 So.2d 980, 987 (Miss.2001). Despite the purported procedural bar, the Court of Appeals reviewed the issue of the juror's exclusion by relying on McGee's right to raise the issue for the first time on appeal under the plain error doctrine. McGee, 953 So.2d at 246, 2005 WL 2739827 at *4. The Court of Appeals found the State's on-the-record admission of gender discrimination cast doubt on the integrity of McGee's entire trial and reversed his conviction and remanded the case for a new trial. We agree with the Court of Appeals' decision.

¶ 7. Batson and its progeny anticipated a defendant's struggle to show a prosecutor's use of peremptory challenges to rid a jury of members of a specific group based on some distinct characteristic like race or gender. See Batson, 476 U.S. at 92-95, 106 S.Ct. 1712. See also J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). The language of Batson, however, clearly applies to situations where a pattern of discrimination is present in one party's use of its peremptory challenges. See Batson, 476 U.S. at 96-98, 106 S.Ct. 1712; Horne v. State, 819 So.2d 1186, 1188 (Miss.2001); Randall v. State, 716 So.2d 584, 587 (Miss. 1998). The present case, however, did not involve the systematic exclusion of males from a jury but only the exclusion of a single male juror. The State's use of gender as a reason for the exclusion of a male juror from the jury panel violated McGee's rights under the equal protection clause. See J.E.B., 511 U.S. at 130-31, 114 S.Ct. 1419.

¶ 8. The failure to object to the State's actions during jury selection normally bars the defendant from raising the issue on appeal. Spicer v. State, 921 So.2d 292, 309 (Miss.2006) (citing Williams v. State, 684 So.2d 1179, 1203 (Miss.1996)); see also Chase v. State, 645 So.2d 829, 843-44 (Miss.1994) (where we applied a procedural bar to a Batson issue when the defendant failed to raise it during his trial). However, if there is a finding of plain error, a reviewing court may consider the issue regardless of the procedural bar. A review under the plain error doctrine is necessary when a party's fundamental rights are affected, and the error results in a manifest miscarriage of justice. Williams v. State, 794 So.2d 181, 187-88 (Miss.2001). To determine if plain error has occurred, we must determine "if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial." Cox v. State, 793 So.2d 591, 597 (Miss.2001) (relying on Grubb v. State, 584 So.2d 786, 789 (Miss. 1991); Porter v. State, 749 So.2d 250, 260-61 (Miss.Ct.App.1999)).

¶ 9. Allowing the State to exclude the potential juror based on his gender was indeed a deviation from sound precedent. See J.E.B., 511 U.S. at 139-41, 114 S.Ct. 1419; Duplantis v. State, 644 So.2d 1235, 1246 (Miss.1994). Therefore, we will review McGee's claim of a Batson violation under the plain error doctrine. The record undoubtedly shows the prosecutor had a discriminatory intent in her attempt to prevent Washington from being seated as a juror.

¶ 10. A "defendant [has] the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. J.E.B., 511 U.S. at 129, 114 S.Ct. 1419. In J.E.B., the Supreme Court stated,

we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.

Id. (emphasis added). More specifically, the Court held "[i]ntentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women." Id. at 130-31, 114 S.Ct. 1419. Moreover, "a consistent pattern of official racial discrimination is [not] a necessary predicate to a violation of the Equal Protection Clause." Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 n. 14, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).

¶ 11. Based on the above precedent, we find that, because the State admitted that it was discriminating against a man in its use of a peremptory strike, McGee's right to equal protection was violated. We further find that, based on the above precedent, only one instance—not a consistent pattern—of purposeful discrimination is enough to prove a discriminatory purpose. Because McGee's right to equal protection was violated, the entire judicial process was infected, and we must reverse the judgment of conviction and remand for a new trial.

CONCLUSION

¶ 12. We affirm the judgment of the Court of Appeals, reverse the judgment entered by and the sentence imposed by the Circuit Court of the First Judicial District of Hinds County, Mississippi, and remand this case to the circuit court for a new trial in accordance with this opinion.

¶ 13. THE JUDGMENT OF ...