Thomas v. State
Citation | 517 So.2d 1285 |
Decision Date | 04 March 1987 |
Docket Number | No. 56423,56423 |
Parties | Elisha THOMAS, Jr. v. STATE of Mississippi. |
Court | United States State Supreme Court of Mississippi |
Mark T. Fowler, Roy O. Parker, Tupelo, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, ROBERTSON and ANDERSON, JJ.
Affirmed.
En Banc.
ON PETITION FOR REHEARING
Elisha Thomas, Jr. was tried and found guilty of rape by a Pontotoc County jury. Conviction and sentence of fifteen (15) years were affirmed by this Court on March 4, 1987. Thomas v. State, 517 So.2d 1285 (Miss.1987). Thomas presently seeks rehearing of that decision on the basis of a single issue not raised prior to the verdict or on direct appeal. Today, we are required to determine to what extent trial objection is required to preserve a jury selection challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) for direct review by this Court.
The record reflects that the State at trial used two of ten peremptory challenges to strike blacks from the jury. Thomas concedes that his counsel made no objection to the use of these peremptory challenges on any ground nor did he move to strike the jury venire. In fact, the first challenge to the composition of the jury was made when Thomas filed his motion for judgment notwithstanding the verdict, or, in the alternative, motion for new trial following the verdict of guilty. On direct appeal to this Court, Thomas raised three assignments of error, none of which alleged racial discrimination in jury selection. In the present petition, two new claims are alleged, both involving racial discrimination. Thus, it is clear, for purposes of our discussion, that the first and only objection to the jury composition came in Thomas' motion for new trial after he had been found guilty and the jury had been finally released.
Thomas predicates his plea for a new trial on Batson v. Kentucky, supra, and Griffith v. Kentucky, 479 U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Batson holds that a prosecutor's use of peremptory challenges to exclude blacks from a jury trying a black defendant may be the basis for a claim of purposeful racial discrimination under the due process clause. The primary thrust of Batson, then, is the modification of the harsh procedural rule carried forward from Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), which required that the discrimination be proved as a pattern throughout other cases tried by that prosecutor. In short, Batson provides that discrimination may be shown by the illicit use of a single jury strike in a single case. Griffith, supra, applies the rule of Batson retroactively to "all cases, State or Federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." Griffith, 479 U.S. at ----, 107 S.Ct. at 716, 93 L.Ed.2d at 650.
It is obvious that the present case fulfills the time requirements of Batson and Griffith concerning the proper window for retroactive consideration of a Batson claim. Griffith mandates the availability of Batson rights since Thomas' appeal was perfected on June 1, 1984, and affirmed by this Court on March 4, 1987, while Batson was handed down on April 30, 1986. See generally Williams v. State, 507 So.2d 50 (Miss.1987); Harper v. State, 510 So.2d 530 (Miss.1987).
The fact that Batson may be properly applied to a case in the time frame of Thomas' does not end our inquiry nor does it suggest the proper resolution of this petition. The question here, a question equally important to the retroactivity issue, involves whether an appellant must make a timely objection to the composition of the jury in order to preserve his right to assert that issue on appeal. We do not hesitate in answering this question affirmatively.
While the issue of timely objection question is not expressly answered by Batson, the case nonetheless contemplates a timely objection and invites the states to fashion the procedural requirements:
We decline, however, to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges. In this case, petitioner made a timely objection.... (Emphasis added).
Batson, 476 U.S. at 99, 106 S.Ct. at 1724, 90 L.Ed.2d at 89-90.
Quite clearly, the United States Supreme Court contemplates that procedural parameters of a Batson challenge will be fleshed out by the states pursuant to prevailing state law. Toward this end, we have already expressly held that the failure of defense counsel to timely object to the state's peremptory challenges bars later attempts to advance that claim on appeal. Irving v. State, 498 So.2d 305 (Miss.1986). As we stated in Irving:
[T]he failure of Irving's counsel to object to the racial make-up of the jury at trial goes beyond a mere procedural default. The rationale of Batson is entirely premised on the idea that the trial court will hear the challenge to the jury and decide whether the prosecutor has used his peremptory challenges in a discriminatory fashion.
Our contemporaneous objection rule is so well established that it bears no lengthy discussion here. Suffice it to say, our holding in Irving flows from a long-standing requirement that objection at the trial court level support any allegations of jury composition raised at the appellate level. Harper, supra, at 532 ( ); Stevens v. State, 458 So.2d 726 (Miss.1984); Copeland v. State, 423 So.2d 1333, 1335 (Miss.1982) (); Fermo v. State, 370 So.2d 930 (Miss.1979) ( ); Watkins v. State, 262 So.2d 422 (Miss.1972) ( ); Holloway v. State, 242 So.2d 454 (Miss.1970) ( ); Goldsby v. State, 226 Miss. 1, 86 So.2d 27 (1956) ( ); Arnold v. State, 171 Miss. 164, 157 So. 247 (1934) ( ); Jackson v. State, 55 Miss. 530 (1878); Gavigan v. State, 55 Miss. 533 (1878).
We are not alone in holding Batson subject to some form of timely objection. The Fifth Circuit Court of Appeals has applied such a rule on several occasions since the rendition of Batson. United States v. Forbes, 816 F.2d 1006 (5th Cir.1987); United States v. Ratcliff, 806 F.2d 1253 (5th Cir.1986); United States v. Erwin, 793 F.2d 656 (5th Cir.1986). In Erwin, the defendant moved to strike the jury on the first day of trial before empanelment, but after the venire had been released. The court held this objection to be untimely and unsupported by precedent. "The court in Batson envisioned that a motion to strike would be made promptly, probably before the venire was dismissed." Erwin, 793 F.2d at 667. In Forbes, which was tried after Batson, the court points out that the defendant never objected to the prosecutor's failure to explain his strike of the third black venire person. The prosecutor had explained why he had struck the first two in a satisfactory manner. The Court noted:
Now it is too late for appellants to insist on an explanation they did not request at trial. [Citations omitted] The "timely objection" rule is designed to prevent defendants from "sandbagging" the prosecution by waiting until the trial has concluded unsatisfactorily before insisting on an explanation for jury strikes that by then the prosecutor may have largely forgotten.
In Ratcliff, a black defendant claimed that the government impermissibly discriminated against him by utilizing a peremptory challenge to exclude a black female from the jury. Ratcliff's claim was found unavailing due to his failure to timely raise this objection at trial, and his further failure to establish a prima facie case of purposeful discrimination as required by Batson. Ratcliff, 806 F.2d at 1256. See also Government of the Virgin Islands v. Forte, 806 F.2d 73 (3d Cir.1986) ( ).
Several other state courts concur in the necessity of trial objection. See generally Ex parte: Penn, No. 85-1095 (Ala. Feb. 20, 1987); Jackson v. State, No. 84-1112 (Ala. Dec. 19, 1986) ( ); State v. Lockett (Mo. Feb. 17, 1987); State v. Oliver, 729 S.W.2d 560 (Mo.Ct.App.1987); State v. Butler, 731 S.W.2d 265 (Mo.Ct.App.1987) ( ); Allen v. State, 726 S.W.2d 636 (Tex.Ct.App.1987); Price v. State, 726 S.W.2d 611 (Tex.Ct.App.1987) ( ); Williams v. State, 731 S.W.2d 563 (Tex.Crim.App.1987); Henry v. State, 729 S.W.2d 732 (Tex.Crim.App.1987); Gray v. Commonwealth of Virginia, 233 Va. 313, 356 S.E.2d 157 (1987) ( ).
In summary, we adhere to our ruling in Irving affirming the necessity for trial objection to a Batson claim. We further hold that objection is timely only where made prior to the impanelling of the jury. We see nothing in the record of Thomas' trial to excuse his failure to object. To the contrary, the fact that he did object during the ...
To continue reading
Request your trial-
Smith v. State
...Id. at 1264. See also Mack v. State, 650 So.2d 1289, 1297 (Miss.1994); Shaw v. State, 540 So.2d 26, 27 (Miss.1989); Thomas v. State, 517 So.2d 1285, 1287 (Miss.1987); Pickett v. State, 443 So.2d 796, 799 (Miss. s 42. In the case at bar, Clyde made no objection in the trial court to any of t......
-
State v. Robinson
...denied, 489 U.S. 1059, 109 S.Ct. 1328, 103 L.Ed.2d 596 (1989); Stanley v. State, 313 Md. 50, 69, 542 A.2d 1267 (1988); Thomas v. State, 517 So.2d 1285, 1287-88 (Miss.1987); State v. Parker, 836 S.W.2d 930, 935-36 (Mo.) (en banc), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (......
-
State v. Wilson
...313 Md. 50, 542 A.2d 1267, 1276 (1988); People v. Williams, 174 Mich.App. 132, 435 N.W.2d 469, 472 (Mich.Ct.App.1989); Thomas v. State, 517 So.2d 1285, 1286-88 (Miss.1987); People v. Harris, 542 N.Y.S.2d 411, 412 (App.Div.1989); State v. Jones, 293 S.C. 54, 358 S.E.2d 701, 704 (1987). A Tex......
-
Smith v. State, 93-DP-00821-SCT.
...Id. at 1264. See also Mack v. State, 650 So.2d 1289, 1297 (Miss.1994); Shaw v. State, 540 So.2d 26, 27 (Miss.1989); Thomas v. State, 517 So.2d 1285, 1287 (Miss.1987); Pickett v. State, 443 So.2d 796, 799 (Miss. s 205. In the case at bar, Jerome made no objection in the trial court to any of......