Tanner v. State

Decision Date04 May 2000
Docket NumberNo. 98-KA-00008-SCT.,98-KA-00008-SCT.
Citation764 So.2d 385
PartiesBoman L. TANNER v. STATE of Mississippi.
CourtMississippi Supreme Court

Michael J. Malouf, Sr., Michael James Malouf, Jr., Jackson, Attorneys for Appellant.

Office of the Attorney General by Scott Stuart, Attorney for Appellee.

En Banc.

MILLS, Justice, for the Court:

¶ 1. Boman L. Tanner ("Tanner") was indicted for the crime of capital murder in the Circuit Court of Hinds County, First Judicial District. On October 15, 1997, Tanner was convicted by a jury for the capital murder of Verna Wood and sentenced to a term of life imprisonment in the custody of the Mississippi Department of Corrections. Tanner appeals to this Court, raising 13 issues as grounds for reversal. Because Batson errors were committed at the trial level, we remand for a Batson hearing consistent with this opinion. All other issues are affirmed upon appeal.

STATEMENT OF THE CASE AND FACTS

¶ 2. Verna Wood ("Wood") was an elderly woman who lived in Jackson, Mississippi, across the street from Tanner. On March 6, 1997, the Jackson Police were notified that Wood had been found dead in her home. Originally, the death was thought to be from natural causes. The body was removed and examined by Robert Martin, Hinds County coroner, who determined that Wood's death was not natural and ordered an autopsy. The autopsy, performed by Dr. Rodrigo Galvez, revealed that Wood died from a bullet wound to the back of the head. The autopsy further revealed it was not suicide and that Wood had died sometime between 2:00 p.m. and 8:00 p.m. the previous day. Although there were no signs of forced entry, it was determined that several of Wood's diamond rings were missing.

¶ 3. According to Julie Tanner, Tanner's wife, Tanner had befriended Wood and often helped her with small chores around her house. On the day Wood's body was found, Tanner tapped Detective Reggie McCann on the shoulder and informed him that his fingerprints would be all over Wood's house. He further informed Detective McCann that he had recently helped Wood break into a little safe at her request.

¶ 4. On March 5, 1997, the day of Wood's death, Tanner left the Isle of Capri Casino in Vicksburg at 2:48 p.m. According to Detective Grant Parker, it takes approximately 42 minutes to travel from the Isle of Capri Casino to Tanner's home. Telephone records indicate on March 5, 1997, at 3:35 p.m., Tanner made a phone call from his house to the MEA Clinic at the reservoir, where his wife worked, to inform his wife he would be late picking her up.

¶ 5. Tanner was next seen at Crown Jewelers in the Park Place Shopping Center in Pearl. According to Detective Parker, it takes approximately 16 minutes to travel from Tanner's residence to Crown Jewelers. Jim Eutzler, owner of Crown Jewelers, testified that Tanner stayed at the store for approximately 40-45 minutes and left at approximately 4:40 p.m. Tanner had been there trying to sell diamonds which matched those taken from Wood.

¶ 6. Telephone records next indicate that Tanner telephoned his mother, Barbara Stewart, at 5:05 p.m. from a service station located just down the street from Crown Jewelers. Tanner called his mother and asked her to pick up his wife and son for him. She did so and brought the two back to her house. At approximately 6:15 p.m., Tanner went by his mother's house, picked up his wife and son, and took them home.1

¶ 7. That same day, Wood had a dental appointment at 1:45 p.m. with Dr. Westover. Martha Boyd, an employee at Dr. Westover's office, testified that Wood was on time for her appointment and left the office sometime between 3:15 and 3:30 p.m. Boyd further testified that Wood was wearing her diamond rings when she was at the dentist's office. Additionally, Ethel Taylor, Wood's housekeeper, was at Wood's home when she left for her dental appointment. Taylor also saw the rings that day and testified she helped Wood retrieve one of the rings from the recliner earlier that morning. When Taylor left Wood's house between 3:00 and 3:30 p.m., Wood was not back from her dental appointment.

¶ 8. On March 10, 1997, the Jackson Police Department received information, through a pawn sheet, that the missing diamonds had been sold to DJ's Silver Mine Pawn Shop on March 6, 1997. Further investigation revealed that Tanner had sold the diamonds to DJ's in exchange for $3,700. Thereafter, detectives arrived at Tanner's home and took him to the police station for questioning. During questioning, Tanner admitted he stole the diamonds from Wood "two or three weeks ago", but denied that he killed her. He was then placed under arrest and charged with capital murder.

¶ 9. Further investigation led to the testimony of Wood's neighbor, Rosemary Scheuerman ("Scheuerman"), who saw Wood on March 5, 1997, between 4:20 and 4:35 p.m. According to Scheuerman, as Wood pulled into her driveway, another vehicle pulled up and parked beside her. Scheuerman further testified that she saw someone follow Wood inside her home. She also testified that she would "not have assessed [the person] as being the same build as Bo Tanner."

¶ 10. At trial, the State presented the testimony of Austin Shaddix ("Shaddix"), an inmate who had been jailed with Tanner. According to Shaddix's testimony, Tanner told him that he killed Wood and described the circumstances surrounding the murder. Tanner told Shaddix that he had lost approximately $3,000 at a casino that day and was worried that "he was going to lose everything he had over his gambling." According to Shaddix, Tanner saw Wood pull into her driveway and followed her into her house. Tanner entered the front door and walked into the bedroom intending only to strike Wood to render her unconscious. When he approached her from behind, however, he thought she sensed his presence. Tanner then panicked, shot Wood in the back of the head, removed the rings from her fingers, and left the house. Tanner was unsuccessful at pawning the rings that night, but sold the rings the next day to DJ's Silvermine for $3,700. ¶ 11. On October 15, 1997, a jury found Tanner guilty of capital murder. He is currently serving a term of life in the custody of the Mississippi Department of Corrections. Tanner maintains that he did not kill Wood and that the evidence provided at trial provides an incontrovertible alibi.

STATEMENT OF LAW

I.

WHETHER THE LOWER COURT ERRED IN NOT FINDING A BATSON VIOLATION

¶ 12. In Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that a defendant may establish a prima facie case of purposeful discrimination during jury selection based solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish the prima facie case under Batson, the defendant must ordinarily establish:

(1) That he is a member of a cognizable racial group;
(2) That the prosecutor has exercised peremptory challenges toward the elimination of veniremen of his race; and
(3) That facts and circumstances infer that the prosecutor used his peremptory challenges for the purpose of striking minorities.

Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987). Furthermore, the United States Supreme Court broadened the scope of Batson by allowing a white defendant to also have standing to challenge the prosecution's use of its peremptory strikes to remove black venire members. Powers v. Ohio, 499 U.S. 400, 408, 111 S.Ct. 1364, 1369, 113 L.Ed.2d 411 (1991). Consequently, the defendant does not have to show that he is a member of a cognizable racial group to establish a prima facie case of discrimination. Davis v. State, 660 So.2d 1228, 1240 (Miss.1995). A white defendant must only show that the prosecutor has used peremptory challenges on a person of race and that the circumstances give rise to the inference that the prosecutor used the peremptory challenges in order to strike minorities. Bush v. State, 585 So.2d 1262, 1268 (Miss.1991).

¶ 13. Once the defendant sets forth a prima facie case, "the burden shifts to the State to come forward with a raceneutral explanation for challenging the jurors." Mack v. State, 650 So.2d 1289, 1296 (Miss.1994). The trial court must then determine whether the objecting party has met its burden of proving there has been purposeful discrimination in the exercise of the peremptory challenge. Walters v. State, 720 So.2d 856, 865 (Miss.1998).

¶ 14. Finally, great deference is given the trial court when determining whether the offered explanation under the unique circumstances of a case is truly a race-neutral reason. Id. Accordingly, "we will not reverse a trial judge's factual findings on this issue unless they appear clearly erroneous or against the overwhelming weight of the evidence." Stewart v. State, 662 So.2d 552, 558 (Miss.1995).

¶ 15. Tanner is a white male. Tanner asserts the trial court erred by not finding a Batson violation during voir dire. Tanner specifically alleges the State "set a clear pattern of striking minorities from the jury" since 11 of its 12 peremptory challenges excluded black veniremen. After the defense asserted this challenge, the court called upon the State to provide racially neutral reasons for the strikes. This Court now addresses these African-American strikes.

A.

Dorothy Clark ... there are two bases for her being stricken. One of them is the fact that her son at this moment is charged as a defendant in a drug prosecution; and secondly based on the answers that she gave with respect to the death penalty questions. ¶ 16. Clark stated during voir dire that she is not opposed to the death penalty and that the State is sometimes justified in taking another person's life. Consequently, Clark is neither for nor against the death penalty, and as such, can not be disqualified on that basis. However, Clark's son was charged, at the time, as being a defendant in a drug prosecution. "Striking a...

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