Simon v. State, 95-US-00001-SCT
| Decision Date | 01 August 1996 |
| Docket Number | No. 95-US-00001-SCT,95-US-00001-SCT |
| Citation | 679 So.2d 617 |
| Parties | Robert SIMON, Jr. v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
MILLS, Justice, for the Court.
In June of 1990, Robert Simon, Jr., was convicted in the Circuit Court of Jones County on change of venue from Quitman County of the crimes of capital murder, sexual battery, and kidnaping. Simon was convicted by a jury composed of two African-Americans and ten whites, five males and seven females. Simon v. State, 633 So.2d 407, 409 (Miss.1993). After a jury in a separate sentencing hearing was unable to reach a unanimous verdict as to the imposition of the death penalty, Simon was sentenced to consecutive terms of life imprisonment for capital murder, thirty years for sexual battery, and thirty years for kidnaping in the custody of the Mississippi Department of Corrections.
Soon thereafter he appealed this conviction to the Supreme Court of Mississippi, raising as one issue whether the State was required to give a gender-neutral reason for peremptory challenges used to remove women from a jury. In response to this assignment of error this Court wrote:
There is no merit to Simon's claim that the State was required to give a "gender-neutral" reason for peremptorily challenging women. The Equal Protection Clause does not extend to gender. United States v. Hamilton, 850 F.2d 1038, 1042 (4th Cir.1988). But see United States v. DeGross, 913 F.2d 1417, 1423 (9th Cir.1990). And Batson should not be extended to challenges of gender-based discrimination. United States v. Broussard, 987 F.2d 215 (5th Cir.1993).
Simon cites United States v. DeGross and Powers v. Ohio to support his claim on this point. However, in DeGross the court of appeals forbade the peremptory challenge of an Hispanic woman because of her race--not her gender. DeGross, 913 F.2d 1417 at 1425. And the United States Supreme Court in Powers v. Ohio only forbade unfettered peremptory challenges as to race; gender was neither raised nor discussed. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Simon's reliance upon DeGross and Powers is misplaced.
This Court went on to affirm Simon's conviction and sentence, handing down its opinion on September 30, 1993, and denying Simon a rehearing on March 17, 1994. Simon then appealed this Court's ruling to the Supreme Court of the United States.
On April 19, 1994, the United States Supreme Court decided J.E.B. v. Alabama, ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). At issue in that case was "whether the Equal Protection Clause forbids intentional discrimination on the basis of gender, just as it prohibits discrimination on the basis of race." Id. at ----, 114 S.Ct. at 1421. The Court decided that:
[T]he Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man. As with race, the "core guarantee of equal protection, ensuring citizens that their State will not discriminate ..., would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors' [gender]." Batson v. Kentucky, 476 U.S. 79, 97-98, 106 S.Ct. 1712, 1723-1724 [90 L.Ed.2d 69 (1986)].
J.E.B., 511 U.S. at ----, 114 S.Ct. at 1430.
On October 31, 1994, the United States Supreme Court decided Simon's appeal. Simon v. Mississippi, 513 U.S. 956, 115 S.Ct. 413, 130 L.Ed.2d 329 (1994), reads in pertinent part:
On petition for writ of certiorari to the Supreme Court of Mississippi. The motion of petitioner for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Mississippi for further consideration in light of J.E.B. v. Alabama, ex rel. T.B., 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).
On remand from the United States Supreme Court, the only issue before this Court is whether this case should be remanded to the circuit court for further proceedings on appellant's claim that the prosecutor engaged in gender discrimination in employing his peremptory challenges to eliminate a highly disproportionate number of females.
For the purposes of the current appeal, the significant portions of the trial court's ruling on this issue are set forth below.
MR. WALLS [Defense Counsel]:
Your Honor, we do have a motion.
All right, sir.
MR. WALLS:
Comes the defendant, and moves the court to disallow the challenges of the State exercised for juror number 2, Steinwinder, on the basis that she's a woman.
Yes, I was going to go through them all.
All right. Let me mark them down then as you go.
MR. WALLS:
S-2 on juror number 11, Robert Neal Strickland, who is a black juror; S-3, Sherry Jackson, a black juror.
What's her number?
MR. WALLS:
Number 26. S-4, number 30, Tina Tidwell, who is a woman, S-5--
Which one was that?
MR. WALLS:
Number 30.
S-5, number 31, Delores Dixon, who's a woman; S-6, number 34, Clara H. Holifield, who's a woman; S-7, 35, who is a woman. S-8, number 39 is a black male; S-9 is a woman and S--strike that one, Your Honor. The basis is--
Is that all?
MR. WALLS:
That's all.
Go ahead.
MR. WALLS:
For those black jurors which were cited, we object on the basis of the decision of the Mississippi--excuse me, U.S. Supreme Court in Batson versus Kentucky, and all of the Mississippi Supreme Court cases which--that would docket and follow Batson. There was nothing about any of these jurors which indicated that they should have been stricken other than their race, and on the other jurors which I've mentioned were all--all of the other ones were white women. That's also based on a line of cases which in various jurisdictions which have recognized the systematic striking with peremptory challenges of women as jurors. It's akin to a bachelor objection.
Cognizant of rules, correct?
MR. WALLS:
Yes, sir.
That would be really the 6th Amendment objections; isn't that right, Mr. Walls?
MR. WALLS:
Yes, sir.
I'm going to address first the objection under the Batson case which were to the two jurors or members of the panel who were black. Under the Batson case, which was a ruling under the 14th Amendment to the United States Constitution, and then I will address the challenges to the women.
(T. 1261-1263) 1
Judge Pearson conducted a Batson hearing concerning the two excluded black jury members at the conclusion of which the final jury was seated and sworn in. He then held the following dialogue with counsel for the State and for the Defense:
The court has one or two different things to take up, but the first thing I want to take up is the court failed to address one portion of the motion Mr. Walls made with regard to either a continuance or a change of venue, I think an objection to the jury on the basis that I believe six or eight of the--I've forgotten how many, but a number of the jurors that were stricken by the state were white females; is that correct?
MR. WALLS:
Yes, sir.
And the court had alluded to the fact that, of course, these persons were not of the same race as the defendant, so this would not be a Batson challenge, and the only way that the court understands that the defense would be entitled to challenge these would be under the 6th Amendment which would be because by striking those eight jurors or whatever many there were, was it eight?
MR. WALLS:
Yes, sir.
That they would be--the fair cross section of the community would not be represented on the jury. Of course, they do represent a cognizable group, and also, it's conceivable, and this court has stated this before, that even under the Batson ruling that persons who are excluded from the jury could be excluded in violation of the equal protection of the laws under the 14th Amendment because everyone has stated in that case, the Batson case, each person has a constitutional right to sit on a jury. The court feels that that is true of both the State witnesses or jurors, rather, as either challenged by the State or the defense, and in 6th Amendment cases that the court is aware of, and I have alluded to these a number of times, the case in California, the Wheeler case, the Sores case in Massachusetts, I've forgotten the names of the cases, but Florida, a number of other states as well as a number of federal jurisdictions recognize the right to sit on a jury and not to be challenged as a group because of your racial identity, whatever it might be. Of course, in those cases, they were decided the burden was equally on the defense as well as the State to justify those weaknesses, and this court has ruled on one case, and the Supreme Court and State of Mississippi have not ruled under the 6th Amendment on cases of that sort. I frankly would hope that they would do so and apply it equally to both sides of the case in both criminal and civil cases, but so far, they have not seen fit to do so or maybe have not had an opportunity to do so because there hadn't been a case presented to them that would justify making that ruling, but at any rate, somewhere down the line, hopefully, that will be decided and whatever way it is decided this court will, of course, follow it. But at this point, the court does not feel that that is something that needs to be addressed by this court affirmatively for the defense and on this case, either, for the State,...
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