Thorson v. State, No. 96-DP-00144-SCT

• Decision Date: 20 August 1998
• Docket Number: No. 90-DP-00015-SCT., No. 96-DP-00144-SCT
• Citation: 721 So.2d 590
• Parties: Roger THORSON, a/k/a Roger Eric Thorson v. STATE of Mississippi. Roger Eric THORSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

721 So.2d 590

Roger THORSON, a/k/a Roger Eric Thorson v. STATE of Mississippi.

Roger Eric THORSON v. STATE of Mississippi.

Nos. 96-DP-00144-SCT, 90-DP-00015-SCT.

Supreme Court of Mississippi.

August 20, 1998.

Henry Dale Robinson, Elizabeth Jane Hicks, Jackson, for Appellant.

Michael C. Moore, Attorney General, Leslie L. Lee, Special Asst. Atty. Gen., for Appellee.

En Banc.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE AND FACTS

¶ 1. Roger Eric Thorson was convicted of capital murder by a Walthall County Circuit Court jury and sentenced to death by lethal injection. In September of 1988, Thorson timely appealed to this Court and we affirmed the trial court on all issues except the Batson issue. Thorson v. State, 653 So.2d 876 (Miss.1994). Upon remand, the trial judge found no Batson violation and held that Thorson was not entitled to a new trial. From this finding, Thorson appeals.

ISSUES

I. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THORSON WAS REQUIRED TO PRESENT A PRIMA FACIE SHOWING OF DISCRIMINATION IN JURY SELECTION.

II. WHETHER THE REASONS PROFFERED BY THE STATE FOR EXERCISING ITS PEREMPTORY CHALLENGES WERE PRETEXTUAL OR RACE-NEUTRAL.

III. WHETHER THE STATE VIOLATED THE FIRST AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION BY STRIKING TWO JURORS ON THE BASIS OF THEIR RELIGIOUS BELIEFS.

IV. WHETHER THE TRIAL COURT ERRED IN DENYING THORSON'S MOTION FOR AN EXPERT IN STATISTICS.

V. WHETHER THE TRIAL COURT ERRED IN DENYING THORSON'S MOTION FOR DISCOVERY PRIOR TO THE BATSON HEARING.

VI. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW THORSON TO EFFECTIVELY CROSS-EXAMINE THE PROSECUTOR.

VII. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO RELY ON THIRD-PARTY INFORMATION AS REASON FOR STRIKING JURORS.

VIII. WHETHER THE TRIAL COURT ERRED IN DENYING THORSON'S MOTION FOR A CONTINUANCE TO PREPARE CROSS-EXAMINATION AND REBUTTAL.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THORSON WAS REQUIRED TO PRESENT A PRIMA FACIE SHOWING OF DISCRIMINATION

IN JURY SELECTION.

¶ 2. A Batson challenge to a peremptory strike should proceed as follows: First, the defendant must establish a prima facie case of discrimination in the selection of jury members. Berry v. State 703 So.2d 269 (Miss.1997) (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).). The prosecution then has the burden of stating a racially neutral reason for the challenged strike. If the State gives a racially neutral explanation, the defendant can rebut the explanation. Finally, the trial court must make a factual finding to determine if the prosecution engaged in purposeful discrimination. If the defendant fails to rebut, the trial judge must base his decision on the reasons given by the State.

¶ 3. Thorson asserts that the trial judge erroneously required him to make a prima facie showing of the Batson criteria. He claims that this Court would not have remanded his case for a Batson hearing if we had not already found that he made a prima facie case of discrimination. Thus, he contends that the trial court erred in asking him to make a prima facie case of discrimination. This contention is unsupported by the record, unnecessary for our holding today, and unworthy of further analysis herein.

II. WHETHER THE REASONS PROFFERED BY THE STATE FOR EXERCISING ITS PEREMPTORY CHALLENGES WERE PRETEXTUAL OR RACE-NEUTRAL?

¶ 4. We give great deference to the trial court's findings of whether or not a peremptory challenge was race neutral. Simon v. State, 679 So.2d 617, 621 (Miss.1996). Such deference is necessary because finding that a striking party engaged in discrimination is largely a factual finding and thus should be accorded appropriate deference on appeal. Hernandez v. New York, 500 U.S. 352, 367-68, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Anderson v. City of Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Indeed, we will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence. Lockett v. State, 517 So.2d 1346, 1350 (Miss.1987).

¶ 5. As stated supra, determining whether there has been a Batson violation involves a three step process. The second step of the process entails submission by the state of a race neutral reason for striking a particular juror. At this point, the trial judge should accept the reason if it appears valid on its face. Hernandez, 500 U.S. at 360, 111 S.Ct. 1859. The state's reason shall be deemed facially valid unless the prosecutor's explanation embodies inherent discriminatory intent. Id. After affording the defendant an opportunity to rebut, the trial court should proceed to the third step of Batson and determine whether or not the opponent of the strike has proven intentional discrimination. Batson, 476 U.S. at 98, 106 S.Ct. 1712. At this stage, the trial court determines if the reasons given by the prosecution were pretexts for intentional discrimination.

¶ 6. The trial judge in the case sub judice submitted an eleven page finding of facts in which the judge reviewed the state's reasons for each of its strikes and determined that they were not racially motivated. Since these issues are not dispositive herein, we do not address the individual strikes.

III. WHETHER THE STATE VIOLATED THE FIRST AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION BY STRIKING TWO JURORS ON THE BASIS OF THEIR RELIGIOUS BELIEFS.

¶ 7. Thorson maintains that the trial judge erred in holding that the State did not violate the Equal Protection Clause when the prosecutor struck two jurors based on their religious beliefs. He is referring to the fact that the State struck Patty Jackson and Margaret Peters because they were members of the Holiness faith. Thorson asserts that striking a person based on her religious beliefs is tantamount to striking a juror based on her race or gender. He claims that by striking a person based on her religious beliefs, the prosecutor not only violated the Equal Protection clause, but also violated Section 13-5-2 of the Mississippi Code of 1972, as amended. ¶ 8. The issue of whether or not a juror may be struck based on his religious preference alone has not yet been decided by the United States Supreme Court. In fact, the Supreme Court denied certiorari in a case in which the Supreme Court of Minnesota held that peremptory strikes based on religious affiliation were Constitutional. See State v. Davis, 504 N.W.2d 767 (Minn.1993),cert. denied, 511 U.S. 1115, 114 S.Ct. 2120, 128 L.Ed.2d 679 (1994). A majority of jurisdictions have declined to extend the Batson holding to include religion, but instead have held that individual state constitutions prohibit exercising peremptory challenges on the basis of religious affiliation.¹ Contra, a growing number of jurisdictions have held that religious affiliation is a valid reason for striking potential jurors.² There are also some jurisdictions which have not specifically addressed the issue of whether or not religion based strikes are Constitutional, but have held that peremptory strikes based on religion are sufficient race-neutral Batson reasons.³ Finally, a minority of jurisdictions have held that Batson protection extends beyond race and incorporates religious groups.⁴ We find that Mississippi Constitutional and Statutory law prohibit exercising peremptory challenges based solely on a person's religious beliefs. Article 3, Section 18 of the Mississippi Constitution decrees in part that:

No religious test as a qualification for office shall be required; and no preference shall be given by law to any religious sect or mode of worship; but the free enjoyment of all religious sentiments and the different modes of worship shall be held sacred....

Section 18 prohibits preference to any particular religion and insures that each citizen of this state shall enjoy freedom of worship. Peremptory challenges based on a person's membership in a particular religious order or denomination violate our State Constitution by permitting preference of one religion over another. Serving on a jury is a right, privilege and responsibility of all our citizens. We will not allow the State or any other party to impede a citizen's rights to participate in our legal proceedings based solely on his or her religion.

¶ 9. In addition to our Constitution, Mississippi statutory law clearly prohibits peremptory challenges based on religion. Miss.Code Ann. § 13-5-2 reads:

It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity in accordance with this chapter to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose. A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin, or economic status.

Miss.Code Ann. § 13-5-2 (Supp.1997) (emphasis added). This statute mandates that the jury pool be selected from a random cross-section of the population. It also prohibits excluding a person from serving on a jury based on her race, color, religion, sex, national origin, or economic status. This chapter of our code is not limited only to grand jury proceedings. It applies equally, unless stated otherwise, to all jury proceedings. It follows that peremptory strikes cannot be exercised to exclude a juror for any of these reasons.⁵ Thus, Mr. Grissom violated this statute when he struck Patty Jackson solely because she was a member of the Holiness Faith.⁶

¶ 10. Religion or lack thereof is an inseparable part of a person's character. Unlike race and gender, religious beliefs are not ordained at birth. A person may belong to a particular religious group without adopting all of the tenets and dogma of that religion. The critical...