Opinion
No. 2007-KA-00499-SCT.
April 10, 2008.
TRIAL JUDGE: HON. PAUL S. FUNDERBURK, DATE OF JUDGMENT: 03/07/2007
COURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT
DISPOSITION: AFFIRMED
ATTORNEY FOR APPELLANT: OFFICE OF INDIGENT APPEALS, BY: BENJAMIN A. SUBER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LA DONNA C. HOLLAND
DISTRICT ATTORNEY: JOHN R. YOUNG
BEFORE WALLER, P.J., CARLSON AND LAMAR, JJ.
¶ 1. Joe Solomon Pruitt appeals from his conviction on a charge of armed robbery in the Circuit Court of Monroe County Mississippi, alleging a Batson violation in the selection of the jury. Finding the trial court correctly found no prima facie showing of purposeful discrimination, we affirm.
FACTS
¶ 2. Loomis Fargo fired Alonzo Jones from employment as a delivery driver. Jones recruited his friend Joe Solomon Pruitt and James Person to rob the Renasant Bank in Smithville, Mississippi, one of the banks on his former route. Jones knew the layout of the bank, the Loomis delivery schedule, and that two women staffed the bank during the day. Approximately a week after Jones was fired, Pruitt, Jones, and Person drove from Memphis, Tennessee, to the Renasant Bank in Smithville on the Loomis delivery day. Pruitt and Person, masked and gloved, entered the bank and forced the two employees to place the bank's cash into a backpack and a sack. Pruitt was armed with a handgun. Pruitt and Person left the bank and entered the car, where Jones waited. As they were leaving, a dye pack placed in Person's sack exploded, filling the car with smoke. He tossed the bag out the car window and they fled back toward Memphis.
¶ 3. At a four-way stop near Fulton, Mississippi, a sheriff's deputy saw the bank robbers and followed them as they entered Highway 78. A state trooper spotted them next on the highway and crossed the median to tail them along with the deputy. Jones exited the highway at the next exit. He discovered the exit had no outlet, and he stopped the car beside a wooded area. The three left the car and fled into the woods. After wandering around, they came across a shed next to a white house, where they hid and slept. The following day, they tried to leave in a second car, which became stuck in a ditch. They returned to the white house and asked the resident for assistance. Her son was attempting to free the vehicle when law enforcement officers arrived at the house and surrounded it. The bank robbers surrendered. Some of the stolen cash was found hidden inside a couch in the house where the robbers were apprehended.
DISCUSSION
¶ 4. Pruitt argues one issue on appeal.
After briefing concluded, Pruitt filed a brief on his own behalf. We will not address the issues raised in Pruitt's brief because they are procedurally barred. M.R.A.P. 28(a)(3); Sumrell v. State , No. 2005-CT-00963-SCT, ¶¶ 6-14 (Miss. 2008).
WHETHER THE TRIAL COURT ERRED IN ACCEPTING THE RACE-NEUTRAL REASONS GIVEN BY THE STATE AFTER A BATSON OBJECTION REGARDING THREE JURORS.
¶ 5. Pruitt's only issue raised on appeal is a challenge to the sufficiency of the state's race-neutral reasons for peremptorily striking three African-American members of the venire. After the circuit court struck some members of the venire for cause and held a brief discussion about the number of peremptory strikes available to each side, the court stated the following: "If you will, I will be in chambers. As soon as you get a jury selected, I want to — I want to seat the jury promptly at twelve o'clock, noon." The court then recessed.
¶ 6. After the recess, the court came back on the record with the question, "All right. Do we have a jury yet?" Pruitt immediately raised a Batson challenge, stating that the state had struck three African-Americans on the first panel of the venire: jurors 1, 2 and 14. The state responded by stating that it tendered the panel with four African-Americans among the twelve jurors and volunteering its reasons for the peremptory strikes. The circuit court ruled:
[T]hat the . . . there is not a — or was not a pattern of discrimination by the State in Striking Jurors 1, 2, and 14. . . . There is no pattern of discrimination established to even require the State to give race-neutral reasons. However, they have given what the Court considers race-neutral reasons for these strikes. The Court does not see these reasons as pre-textual, not race-based. . . . So the defendant's motion is overruled.
The petit jury consisted of five white males, two white females, one African-American male, three African-American females, and one female juror whose race was not identified for the record. Two white males served as alternates.
¶ 7. This Court reviews a trial court's ruling on a Batson challenge with great deference and will not overturn the trial court's ruling unless it is clearly erroneous or against the overwhelming weight of the evidence. Flowers v. State , 947 So. 2d 910, 917 (Miss. 2007). See also Batson v. Kentucky , 476 U.S. 79, 98, 106 S. Ct. 1712, 1724, 90 L. Ed. 2d 69, 88, n. 21 (1986); Chisolm v. State , 529 So. 2d 630, 633 (Miss. 1988); Lockett v. State , 517 So. 2d 1346, 1352 (Miss. 1987). When addressing a Batson challenge, a trial court employs a three-step procedure: (1) the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose; (2) once the defendant has made out a prima facie case, the burden shifts to the state to explain adequately the racial exclusion by offering permissible, race-neutral justifications for the strikes; and (3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. Johnson v. California , 545 U.S. 162, 168, 125 S. Ct. 2410, 2416, 162 L. Ed. 2d 129, 138 (2005).
¶ 8. Pruitt argues the state's reasons for striking the three jurors bear two marks indicating they were pretexts for racial discrimination: The state failed to voir dire these jurors on the reasons offered for their being stricken, and there is no record supporting the stated reason. See Manning v. State , 765 So. 2d 516, 519 (Miss. 2000) ( Manning III ). The state responds by arguing the reasons are immaterial because the trial court ruled Pruitt failed to make a prima facie showing of purposeful discrimination. In the alternative, the state argues the reasons offered by the prosecutors are race-neutral and demonstrate no pretext for racial discrimination. We find the state's primary argument meritorious.
¶ 9. This Court previously has endorsed the two-judgment procedure followed in this case. See Brawner v. State , 872 So. 2d 1, 10 (Miss. 2004) Pruitt cites Snow v. State , 800 So. 2d 472, 478 (Miss. 2001), for the principle that the initial burden on a defendant to demonstrate a prima facie case of discrimination is mooted when the trial court requires the state to offer race-neutral reasons for its strikes. The state accurately responds that the trial court in Snow did not rule on whether Snow had met his burden of demonstrating a prima facie case of discrimination. Snow , 800 So. 2d at 479. However, we must acknowledge that we have previously held the state's act of volunteering race-neutral reasons for peremptorily striking members of the venire, without being ordered to do so by the trial court and before the trial judge ruled on whether a defendant raising a Batson challenge met her burden of demonstrating a prima facie showing of discrimination, rendered the prima facie question moot. Cf. Walker v. State , 863 So. 2d 1, 28 (Miss. 2003) ("[T]he question of whether Walker made out a prima facie case is moot because the state was ordered to give reasons for its strikes without [a determination of whether a prima facie case has been made by Walker]. It has long been the law that when the prosecution states its reasons for exercising its peremptory strikes either when ordered to do so without a finding of a prima facie case or voluntarily, the reasons can be reviewed on appeal."); Stevens v. State , 806 So. 2d 1031, 1046 (Miss. 2001) ("When the State gives its reasons for exercising peremptory challenges without being required to do so or because the trial court orders it without finding a prima facie case, the requirement of making a prima facie [sic] is moot."). See also Hughes v. State , 735 So. 2d 238, 250 (Miss. 1999); Manning v. State , 735 So. 2d 323, 339 (Miss. 1999) ( Manning II ); Manning v. State , 726 So. 2d 1152, 1183 (Miss. 1998) ( Manning I ), ( overruled on other grounds by Weatherspoon v. State , 732 So. 2d 158, 162 (Miss. 1999)); Woodward v. State , 726 So. 2d 524, 530 (Miss. 1997); Davis v. State , 660 So. 2d 1228, 1240 (Miss. 1995); Mack v. State , 650 So. 2d 1289, 1298 (Miss. 1994). Since this is an incomplete statement of the law, we must first clarify when a defendant's initial burden under Batson becomes moot.
¶ 10. The cases listed above rely upon the United States Supreme Court's plurality opinion in Hernandez v. New York , 500 U.S. 352, 111 S.Ct. 1859, 114 L. Ed.2d 395 (1991), as authority for determining when the requirement to make a prima facie showing of purposeful discrimination under Batson becomes moot. It stated the rule as follows:
The prosecutor defended his use of peremptory strikes without any prompting or inquiry from the trial court. As a result, the trial court had no occasion to rule that petitioner had or had not made a prima facie showing of intentional discrimination. This departure from the normal course of proceeding need not concern us. We explained in the context of employment discrimination litigation under Title VII of the Civil Rights Act of 1964 that "where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant." United States Postal Service Bd. of Governors v. Aikens , 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983). The same principle applies under Batson . Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie show ing becom es moot.
Hernandez , 500 U.S. at 359. This Court was confronted with a similar situation in Brawner , where the trial court first ruled that Brawner failed to make a prima facie showing of purposeful discrimination, then allowed the state to offer its race-neutral reasons for its strikes. Brawner , 872 So. 2d at 9. In the Brawner opinion, this Court noted its partial departure from the Hernandez procedure. Id. at 10 and n. 1. It stated:
Notwithstanding the finding that a prima facie showing of gender bias had not been made, the judge nevertheless allowed the State to offer, for the record, its gender-neutral reasons for striking females. We view this as a good practice for two reasons. First, if it becomes necessary to remand for a Batson hearing, this record would be invaluable assistance to the trial judge and would allay the difficulties caused by lost or misplaced documentation and faded memories, which may lessen the credibility of a party. Second, if on appeal this Court determines that a prima facie case has been made, this procedure gives the Court a complete record for reviewing the issue of pretext.
Id. at 10-11 (footnote omitted). As noted by the Brawner Court, this procedure began almost immediately after the United States Supreme Court announced its opinion in Batson . Id. at 11 (citing Lockett v. State , 517 So. 2d 1346, 1349 (Miss. 1987)). See also Hughes , 735 So. 2d at 251; Manning , 726 So. 2d at 1182 ( Manning I ); Foster v. State , 639 So. 2d 1263, 1279-80 (Miss. 1994). Under Brawner , Pruitt's burden to make a prima facie showing of purposeful discrimination would not become moot when the state volunteered race-neutral reasons for its peremptory strikes after the court ruled that no prima facie showing had been made.
This Court's opinion in Brawner should be read to overrule its opinion on the Batson procedural analysis issue in Manning I , where the same procedure was employed, yet the Manning I Court held the question whether the defendant met his initial burden was moot. Compare Brawner , 872 So. 2d at 10 with Manning I , 726 So. 2d at 1183, (¶¶ 108, 111). See also Foster , 639 So. 2d at 1279-80 (where this Court did not explicitly find the issue moot but treated it as such). The trial court in Hughes used the procedure endorsed in Brawner . Hughes , 735 So. 2d at 250. Though not "accepted practice" at the time, this Court did not treat the issue of the defendant's initial burden as moot. Hughes , 735 So. 2d at 249-252 (¶¶ 22, 28-29, 31, 37, 42).
¶ 11. We see no substantial difference between the course of events analyzed in Brawner and the one before the Court. When the state voluntarily interrupts the ordinary procedure and offers race-neutral reasons for striking members of the venire before the court rules whether the defendant met his initial burden, the question whether the defendant met his initial burden is not moot. We cannot infer from this record that the trial court implicitly ruled Pruitt had made his prima facie showing because the trial court did not order the state to offer its reasons for the strikes. Nor do we see any reason why the question of whether Pruitt met his initial burden should be taken from the trial court's consideration simply because the state voluntarily acted out of turn. Pruitt's initial burden under Hernandez would become moot if the state volunteered its race-neutral reasons for its strikes and the trial court ruled on the merits (or ultimate question) without first determining whether Pruitt had made his prima facie showing. Since the trial court found that Pruitt did not make a prima facie showing before ruling on the ultimate question, Pruitt's initial burden was not mooted.
Compare Strickland v. State , 2006-KA-01573-SCT, (¶¶ 8, 13), 2008 Miss. LEXIS 132, *12-*13, *23 (Miss. March 6, 2008) (rehearing pending).
¶ 12. Our prior opinions which apply this rule from Hernandez are based upon facts which distinguish them from Pruitt's case. In some cases, the trial court ordered the state to offer race-or gender-neutral reasons without first ruling whether the defendant had met his initial burden under Batson . When considering these cases, we could infer from the record that the trial court implicitly held the defendant had met his initial burden under Batson because it required the state to respond. In other cases, we find no indication the trial court ruled on whether the defendant had met his initial burden. The opinions reflect only that the trial court ruled on the ultimate question of a defendant's Batson challenge. These cases are factually similar to and followed the rule from Hernandez , despite the court's imprecise articulation of the rule in its opinions. Since these cases are distinguishable, they do not control the outcome. Applying the practice stated in Brawner and the fully-articulated rule from Hernandez , we find the question is not moot whether Pruitt met his initial burden under Batson .
Walker , 863 So. 2d at 28; Snow , 800 So. 2d at 472; Manning II , 735 So. 2d at 338-339 (for the first venire; the case was remanded for a Batson hearing on the second venire because the trial court failed to require the state to offer race-neutral reasons for its peremptory strikes); Mack , 650 So. 2d at 1296-97.
Stevens , 806 So. 2d at 1046-47; Woodward , 726 So. 2d at 531-34; Davis , 660 So. 2d at 1240-42.
¶ 13. We now turn to the question of whether Pruitt met his initial burden under Batson . To establish a prima facie case of purposeful discrimination, a defendant most show:
[First] that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
Batson , 476 U.S. at 96 (citations and quotations removed); Perkins v. State , 863 So. 2d 47, 57 (Miss. 2003). There is little doubt that Pruitt, who is African-American, met the first requirement by showing the three jurors peremptorily struck by the state were also African-American. What remains is Pruitt's burden of showing facts and other relevant circumstances within the totality of the evidence "sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson , 545 U.S. at 170, 125 S. Ct. at 2417.
We note the United States Supreme Court has modified this first element, removing the requirement the defendant and the juror be of the same race or gender. See J.E.B. v. Alabama ex. rel T.B. , 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994); Powers v. Ohio , 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). One of the three, Juror 14, did not indicate her race on the jury card. Based on the record before the court, which includes the state's admission that it struck three African-American members of the venire, we will assume she was African-American.
¶ 14. When he made the Batson challenge, Pruitt offered the fact that the state had used its first three peremptory challenges on the members of the venire in question as evidence demonstrating purposeful discrimination. The state responded that the panel it tendered included four African-Americans and then, without prompting, offered reasons for striking the three members of the venire. The trial court, after hearing the reasons offered by the state for striking these members of the venire, ruled that Pruitt did not meet his burden of making a prima facie showing of discrimination. Pruitt further argues the state's reasons are insufficient, and that they also serve as evidence indicating purposeful discrimination. Pruitt offered no other relevant circumstances at trial or on appeal to raise an inference that the prosecution used its strikes to exclude the three jurors on account of their race.
¶ 15. We have reviewed the record and have found no other evidence which would raise an inference that the state used its peremptory strikes purposefully to discriminate on the basis of race. The state did not ask any questions of the venire about Pruitt's race. The state moved to strike, for cause, one white, one African-American, and two other members of the venire whose race is not indicated on their cards or in the record. The state did not present evidence or make arguments in which the race of either Pruitt or the jurors was invoked. The state exercised its peremptory strikes on less than fifty percent of the African-Americans on the panels of the venire it considered for the petit jury. Therefore, we hold the state and the trial court are correct.
¶ 16. As an addendum to this opinion, we must take exception to the trial court's actions in directing the lawyers to select the jury outside its presence. The fact that the peremptory strikes portion of the petit jury selection was not held on the record posed significant problems in consideration of this appeal. According to the rules for circuit court, "Constitutional challenges to the use of peremptory challenges shall be made at the time each panel is tendered." U.R.C.C.C. 4.05B. The application of this rule requires, at the time the peremptory strikes are made, the presence of the judge to rule on any challenge, and the court reporter to record the arguments and rulings.
CONCLUSION
¶ 17. Pruitt failed to meet his burden of making a prima facie showing of purposeful discrimination on the basis of race in the state's exercise of peremptory strikes as required by Batson . Therefore, we affirm his conviction.
¶ 18. CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY-FIVE (35) YEARS, WITH FIVE (5) YEARS SUSPENDED, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE APPELLANT SHALL BE PLACED UNDER POST-RELEASE SUPERVISION UPON RELEASE FROM THE TERM OF INCARCERATION FOR A PERIOD OF FIVE (5) YEARS. SMITH, C.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. LAMAR, J., CONCURS IN RESULT ONLY. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.
¶ 19. I must reject the majority's holding regarding when the requirement of establishing a prima facie case of intentional discrimination becomes moot. Our case law clearly establishes that if the proponent of a strike offered the reasons for his or her strike, and the trial court ruled on the issue of discrimination, there is no need for this Court to determine if the opponent of the strike established a prima facie case, regardless of whether or not the trial court ruled on the prima facie issue. Even if the issue of whether Pruitt established a prima facie case is not moot, he has demonstrated that the State engaged in a pattern of strikes that gave rise to an inference of discrimination. Accordingly, I review the trial court's ruling on the merits of Pruitt's Batson challenges and find that the trial court erred in overruling Pruitt's Batson challenge with respect to two African-American jurors. I also find that the trial court committed reversible error by not making an on-the-record factual determination of whether the State's proffered reasons were non-pretextual. I would reverse the judgment of the trial court and remand the case for a new trial.
¶ 20. The majority holds that the requirement of establishing a prima facie case under Batson becomes moot only when (i) the proponent of the challenged strikes articulates race-neutral reasons for the strikes, and (ii) the trial court rules as to whether those reasons are pretextual, but (iii) does not rule that a prima facie case has or has not been established. The majority claims that its holding is mandated by Hernandez v. New York , 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), but my reading of that case indicates otherwise.
¶ 21. The United States Supreme Court held in Hernandez that the issue of whether a prima facie showing has been made becomes moot "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question." Id. at 359. The Court did not hold that, in addition to the proponent providing race-neutral reasons and the trial court ruling on the merits of the Batson challenge, the trial court must also not rule on the issue of whether a prima facie case has been made in order to obviate the need for review of that issue on appeal. Although it is true that the trial court in Hernandez did not rule that the defendant had or had not made out a prima facie case, nothing in the Court's plurality opinion suggests that the lack of a ruling by a trial court on the prima facie issue is required to render the issue moot. Likewise, the Court gave no indication that, had the trial court ruled that the defendant had not made out a prima facie case and then proceeded to rule on the merits of the defendant's Batson challenge, it would have first reviewed the trial court's ruling on the prima facie issue.
¶ 22. This reading is supported by two cases in which this Court held that the issue of whether the defendant had established a prima facie case of purposeful discrimination was moot, even though the trial court had ruled that the defendant had not established a prima facie case before ruling on the merits of the Batson challenge. In Foster v. State , 639 So. 2d 1263 (Miss. 1994), the trial court determined that the defendant had failed to establish a prim a facie case under Batson , but then required the State to provide race-neutral reasons for its strikes. Id. at 1279. After the State provided its race-neutral reasons, the trial court made statements in which this Court found implicit "a determination that the reasons given by the State were sufficiently race-neutral. . . ." Id. at 1280. Although it did not cite Hernandez , this Court deemed the issue of whether the defendant had established a prima facie case to be moot and proceeded to review the trial court's ruling that the State's reasons were race- neutral. The trial court in Manning v. State , 726 So. 2d 1152 (Miss. 1998), overruled on other grounds by Witherspoon v. State , 732 So. 2d 323, 339 (Miss. 1999), also ruled that the defendant had not established a prima facie case, but then requested that the State provide race-neutral reasons and ruled on the race-neutrality of the reasons provided. Id. at 1183. This Court, citing Hernandez , determined that "the issue of whether a prima facie showing [had been] made [was] moot" and went ahead and reviewed the trial court's ruling on the merits. Id.
A third case, Hughes v. State , 735 So. 2d 238 (Miss. 1999), also partially supports this position. In Hughes the trial court found that no prima facie case had been made, but required the State to provide race-neutral reasons for its strikes "`just in case.'" Id. at 250, 251. The State articulated its reasons, but the trial court apparently did not rule on the race-neutrality of those reasons. Id. at 250-51. This Court stated that Hernandez held "that once reasons are offered by the proponent, the issue of whether a prima facie case of discrimination has been developed is moot." Id. at 250. However, we reviewed the trial court's ruling that the defendant had not made out a prima facie case, held that the trial court's ruling was correct, and then examined the race-neutrality of the State's reasons. Id. at 250-52. Because the issue of whether the defendant had established a prima facie case was moot, this Court should have only reviewed the State's race-neutral reasons.
¶ 23. The majority does not argue or suggest that this Court's decisions in Foster and Manning not to review the trial court's ruling that a prima facie case had not been established before reviewing the trial court's ruling on the merits of the Batson challenge were not in accordance with the holding in Hernandez . Rather, the majority contends that Foster and Manning were implicitly overruled by Brawner v. State , 872 So. 2d 1 (M iss. 2004). This interpretation of Brawner is unwarranted. In Brawner the trial court ruled that the defendant had not made out a prima facie case of intentional gender discrimination, but allowed the State to articulate for the record the gender-neutral reason for each challenged strike. Id. at 9. The trial court did not rule, however, on the merits of the defendants' Batson challenge. See id. at 9-11. Because the trial court did not rule on the merits, the issue of whether the defendant had made out a prima facie case was not moot under Hernandez , and, therefore, this Court properly limited itself to reviewing the trial court's ruling on the prima facie issue. I do not see how Brawner can be interpreted to have overruled Foster and Manning if the issue of when the requirement of establishing a prima facie case becomes moot was not even raised or discussed in Brawner . Brawner is completely distinguishable from Foster , Manning , and the present case and should have no bearing on today's decision.
¶ 24. The Brawner Court, to be sure, did mention Hernandez in connection with its discussion of the procedure followed by the trial court. Id. at 11 n. 1. The Court stated that it "view[ed] as a good practice" the trial court's decision to allow the State to provide its gender-neutral reasons, despite the fact that it had ruled that no prima facie showing had been made. Id. at 10. In a footnote the Court observed that "[t]his procedure differs from that identified in Hernandez , in which the State offered neutral reasons without the trial judge first finding that a prima facie case ha[d] been made." Id. at 11 n. 1. The Court's discussion of what procedural steps a trial court should take after ruling that a prima facie case has not been established cannot be interpreted to overrule Foster and Manning for two reasons. First, the Court's statements about this "good practice" are the purest dicta. Second, the discussion does not implicate the issue of when the requirement that a prima facie case be established becomes moot. The Court's footnote distinguishing the procedure followed by the trial court in Brawner and the trial court in Hernandez is superfluous — if the procedure approved by the Court is followed, the issue of whether a prima facie showing has been made will not be moot.
The Court appears to have been approving a two-step procedure in which the trial court (i) rules that no prima facie case has been established and (ii) gives the proponent of the challenged strikes an opportunity to articulate race-neutral reasons for those strikes. I do not understand the Court to have been suggesting that trial courts ought to also rule on the issue of pretext after completing the first two steps — which would render the prima facie issue technically moot under Hernandez . Otherwise, the Court's statement justifying the procedure on the ground that it creates a record that the trial court can rely on in the event this Court remands the case for a Batson hearing does not make sense — there would be no need to remand for a Batson hearing if the trial court had already ruled on the merits of the Batson challenges. Brawner , 872 So. 2d at 10-11. Furthermore, if such a procedure was followed in every case, there would be no point in requiring parties to make a prima facie showing of discrimination.
The distinction the Brawner Court should have made between the two cases is that the trial court in Brawner did not rule on the merits of the Batson challenge and the trial court in Hernandez did, since that is the salient difference.
¶ 25. The majority's position on this issue of federal constitutional law is also contrary to the position taken by virtually every other court that has considered this issue. See U.S. v. Gillam , 167 F.3d 1273, 1278 (9th Cir. 1999); U.S. v. Sneed , 34 F.3d 1570, 1579-80 (10th Cir. 1994); Smith v. State , 797 So. 2d 503, 522 (Ala.Crim.App. 2000); People v. Davis , 735 P.2d 79, 82 (Colo.Ct.App. 1996); People v. Martinez , 696 N.E.2d 771, 775-76 (Ill.App.Ct. 1998); Koo v. State , 640 N.E.2d 95, 99 (Ind.Ct.App. 1994); State v. Durham , 673 So. 2d 1103, 1111 (La.Ct.App. 1996); State v. White , 835 S.W.2d 942, 950-51 (Mo.Ct.App. 1992); State v. Williams , 565 S.E.2d 609, 638-39 (N.C. 2002); Neill v. State , 896 P.2d 537, 546 n. 4 (Okla.Crim.App. 1994); State v. Ruiz-Martinez , 21 P.3d 147, 148 (Or.Ct.App. 2001); Malone v. State , 919 S.W.2d 410, 412 (Tex.Crim.App. 1996). All of these courts have held that when the trial court has allowed reasons for the challenged strikes to be offered and ruled on the ultimate issue of discrimination, an appellate court should not bother with determining whether a prima facie has been established, regardless of whether the trial court ruled on the prima facie issue. My research reveals that only one court has reached the same conclusion as the majority on this issue. See People v. Welch , 976 P.2d 754, 783 (Cal. 1999).
¶ 26. Ultimately, there is no principled reason for us to review the trial court's ruling on the issue of whether Pruitt made out a prima facie case because we can review its ruling that the State did not purposefully discriminate in its exercise of peremptory strikes. The purpose of a Batson challenge is to prevent the discriminatory exclusion of jurors. See, e.g., Flowers v. State , 947 So. 2d 910, 938 (Miss. 2007) (" Batson makes clear that each juror must be evaluated on his/her own merits, not based on supposed group-based traits or thinking."). Since we have before us the State's reasons for its challenged strikes, not examining those reasons at all is, in my judgment, a dereliction of this Court's duty under Batson to ensure that peremptory challenges are exercised in accordance with the Equal Protection Clause. The majority's refusal to look at the State's reasons for its challenged strikes gives the impression that the Court is burying its head in the sand — especially because there is significant evidence that the State's reasons for striking two African-American venirepersons were pretextual.
¶ 27. We should listen to the Fifth Circuit, which stated: "[A]ppellate review should not become bogged down on the question of whether the defendant made a prima facie showing in cases where the district court has required an explanation. . . . [W]hen the prosecution's explanation is of record, we will review only the district court's finding of discrimination vel non." U.S. v. Forbes , 816 F.2d 1006, 1010 (1987) (citations omitted). The Missouri Court of Appeals has similarly observed that the "determination [of whether a prima facie case exists] is irrelevant when the state volunteers reasons for exercising its strikes and the trial court has ruled on the ultimate issue of intentional discrimination." White , 835 S.W.2d at 951 (citing Hernandez , 500 U.S. at 359, 111 S.Ct. at 1866). I would follow the Alabama Court of Criminal Appeals and hold that "[w]here the challenged party's explanations for its strikes are a part of the record, th[is] . . . [C]ourt will review those explanations regardless of the manner in which they came into the record." Smith , 797 So. 2d at 522 (citations omitted). Accordingly, I would not review the trial court's ruling that Pruitt did not establish a prima facie case of purposeful discrimination.
¶ 28. Assuming, for the sake of argument, that it is proper to consider the trial court's ruling on the prima facie issue, I find that Pruitt did in fact establish a prima facie case. In determining whether a prima facie case has been established, "the pivotal question is whether the opponent of the strike has met the burden of showing that [the] proponent has engaged in a pattern of strikes based on race or gender, or in other words `the totality of the relevant facts gives rise to an inference of discriminatory purpose.'" Randall v. State , 716 So. 2d 584, 587 (Miss. 1998) (quoting Batson v. Kentucky , 476 U.S. 79, 94, 106 S.Ct. 1712, 1721, 90 L.Ed.2d 69 (1986)). The State used three of its five peremptory strikes, or sixty percent, against African-Americans. We do not know the racial composition of the venire, but, according to the 2000 U.S. Census, the percentage of Monroe County composed of African-Americans is thirty-one percent. Using that percentage as a substitute for the racial composition of the venire, the State's challenge rate against African-Americans was almost double the percentage of the venire composed of African-Americans. See Walker v. State , 740 So. 2d 873, 880 (Miss. 1999) (using percentage of county's African-American population as a surrogate for percentage of African-Americans included in the venire). Such a significant disparity between the number of strikes used against African-Americans and the likely percentage of the venire composed of African-Americans constitutes a "pattern of strikes" that gives rise to an inference of racial discrimination. See Turner v. Marshall , 63 F.3d 807, 813 (9th Cir. 1995), overruled on other grounds by Tolbert v. Page , 182 F.3d 677 (9th Cir. 1999) (finding an inference of discrimination based on a 56% challenge rate against African-Americans in district with 30% African-American population); U.S. v. Alvarado , 923 F.2d 253, 256 (2nd Cir. 1991) (finding an inference of discrimination based on a 57% challenge rate against minorities in district with 29% minority population).
¶ 29. Since it is not necessary to review the trial court's ruling that Pruitt did not establish a prima facie case, and since Pruitt did in fact establish a prima facie case, I will review the trial court's ruling that the State did not intentionally discriminate in its use of peremptory strikes. This Court has enumerated five indicia of pretext for use in evaluating whether a party's proffered race-neutral reasons were pretexts for intentional discrimination:
(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge; (2) the failure to voir dire as to the characteristic cited; . . . (3) the characteristic cited is unrelated to the facts of the case; (4) lack of record support for the stated reason; and (5) group-based traits.
Manning v. State , 765 So. 2d 516, 519 (Miss. 2000) (quoting Mack v. State , 650 So. 2d 1289, 1298 (Miss. 1994)). The State gave the following reasons for striking Juror Number 1, Chiquita Griffin: (1) she had a history of short-term employment; (2) she lived in high-crime area; (3) she was a single mother; and (4) she was related to an individual prosecuted by the same district attorney. Her alleged relationship with an individual who had allegedly been prosecuted is a suspect reason because the State did not ask her about this relative during voir dire. Her history of short-term employment is an equally suspicious reason because the State accepted two white jurors who indicated on their juror cards that they had been employed by their present employer for six weeks and one year, respectively. However, there is no evidence that the other race-neutral reasons offered by the State were pretextual.
¶ 30. The State's race-neutral reasons for striking Juror Number 14, Mary Louise McMillan, were that she had a history of short-term employment and that she was related to individuals who had been prosecuted. McMillan indicated on her juror card that she had been employed for six months at her present employer. The State did not ask McMillan any questions about her employment history. Because the State failed to conduct voir dire as to this reason, and there were unchallenged jurors of the opposite race who had also been employed for a short period of time, I find that this reason was pretextual.
¶ 31. The State did not question McMillan about her alleged relationship with individuals w ho had allegedly been prosecuted. Moreover, the record reflects that the State obtained this information about McMillan from a law enforcement officer: the assistant district attorney stated that he had "concerns via Officer Shumpert, that [McMillan] [wa]s related to persons that have been prosecuted." The State also struck Juror Number 2, Tracy Lagrone, because she was possibly related to an individual who had been prosecuted by the same district attorney. The State's explanation of the reason for striking Lagrone was as follows:
Tracy Lagrone, once again, one of the law enforcement officers expressed concern that she is related to one of our supervisors here whose son we have prosecuted in the very recent past. . . . In any event, the reason that we made that strike was because of concern that she was related to the supervisor whose son we had prosecuted.
This record excerpt indicates that the State also obtained this information about Lagrone from a law enforcement officer. Despite having "concerns" about McMillan and Lagrone being related to individuals who had been prosecuted, the State never directly asked McMillan or Lagrone during voir dire whether they were related to such individuals. Accordingly, the State failed to conduct voir dire as to McMillan's and Lagrone's alleged relationships to these unidentified individuals who had allegedly been prosecuted. See Mack , 650 So. 2d at 1298 ("The failure to voir dire usually comes in to play when the prosecutor expresses some suspicion or uncertainty about the true situation involving the juror, such as when he `believes' that the juror is related to a criminal."). "`[T]he State's failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination.'" Miller-El v. Dretke , 545 U.S. 231, 246, 125 S.Ct. 2317, 2328, 162 L.Ed.2d 196 (2003) (quoting Ex parte Travis , 776 So. 2d 874, 881 (Ala. 2000)). Moreover, there is no support in the record for this supposedly race-neutral reason. Accordingly, the State's "failure to conduct voir dire [and the lack of record support] must weigh against the state in an evaluation of" whether this reason for using a peremptory strike against McMillan and Lagrone was a pretext for racial discrimination. Mack , 650 So. 2d at 1298.
During voir dire the State did ask whether any of the venirepersons had a relative or close friend who had "ever been arrested or charged with a felony," but the record does not reflect whether McMillan or Lagrone raised their hands.
¶ 32. Of course, these two indicia of pretext must be "viewed . . . in light of the relative strength of the prima facie case of discrimination." Id. Even though Pruitt's prima facie case is not strong, I conclude that the trial court clearly erred in overruling Pruitt's Batson challenges to the strikes of McMillan and Lagrone. The State did not examine McMillan or Lagrone about their alleged relationships to individuals who had allegedly been prosecuted, give them an opportunity to respond to these allegations or produce any evidence of such relationships. Moreover, the State did not provide this information to Pruitt's attorney prior to or during voir dire, which prevented his attorney from evaluating the veracity of these allegations. The cumulative effect of all of this necessitates a finding that the trial court's ruling that this explanation for the strikes of McMillan and Lagrone was not a pretext for racial discrimination was Batson error. See Howell v. State , 860 So. 2d 704, 766-68 (Miss. 2003) (Graves, J., dissenting). Accordingly, the trial court committed clear error in overruling Pruitt's Batson challenge with respect to McMillan and Lagrone.
Justice Graves stated in Howell :
Allowing the State to present uncorroborated facts and information to the court in support of its peremptory challenge of black jurors after the voir dire process has been completed denies [the defendant] the basic fairness guaranteed under the Constitution and rewards the State for failure to ask any relevant questions of [the stricken venirepersons].
Id. at 767-78 (emphasis in original). I also agree with Justice Graves that there should be a "require[ment] [that] the party attempting to exercise the peremptory strike . . . question the person who is the object of that strike, before it may challenge them." Id. at 768.
¶ 33. The trial court also committed reversible error, in my judgment, by not making any factual findings regarding the race-neutral reasons proffered by the State for striking McMillan and Lagrone. This Court has held that when considering a Batson challenge, a trial court must "make an on-the-record, factual determination, of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors." Hatten , 628 So. 2d at 298. The trial court must also "give . . . [a] `clear and reasonably specific' explanation for his ruling." Id. at 299. "Mere broad conclusions at the end of the Batson process will not suffice." Gary v. State , 760 So. 2d 743, 748 (Miss. 2000). Moreover, the United States Supreme Court has recently stated that when reviewing a trial court's ruling on a Batson challenge, an appellate court should not defer to the trial court if it did not make "specific finding[s] on the record" regarding each of the prosecutor's explanations for its strikes. See Snyder v. Louisiana , 128 S.Ct. 1203, 1209 ("[D]eference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike. Here, however, the record does not show that the trial judge actually made a determination concerning Mr. Brooks' demeanor. The trial judge was given two explanations for the strike. Rather than making a specific finding on the record concerning Mr. Brooks' demeanor, the trial judge simply allowed the challenge without explanation."); see also id. at 1213 (Thomas, J., dissenting).
¶ 34. The trial court in the present case gave the following explanation for its ruling:
[T]hey have given what the Court considers race-neutral reasons for these strikes. The Court does not see these reasons as pre-textual, not race-based. Therefore, jurors, as I understand it, of the African-American race that were tendered by the State; Jurors 4, Ethel Lee Haynes; Juror 9, Barbara Michelle McDonald; Juror 12, Tommy L. Griffin, and Juror 15, Shirley Ann Braylock. So the defendant's motion is overruled.
Clearly, the trial court did not give a "clear and reasonably specific" explanation of his ruling with respect to the three challenged strikes of African-American prospective jurors; in fact, it did not explain its ruling at all. Unlike the trial court in Hatten , it "merely accept[ed] the specific reasons given by the prosecution at face value, . . . [instead of] consider[ing] whether they were contrived." Hatten , 628 So. 2d at 299. Because of the trial court's failure to make an on-the-record factual determination of whether the State's reasons were non-pretextual, we should, at the very least, remand this case for a hearing and findings in accordance with Hatten . See, e.g., Johnson v. State , 754 So. 2d 1178, 1180 (Miss. 2000) (remanding for a hearing pursuant to Hatten ). However, I would hold that the trial court's failure in this case to make an on-the-record factual determination constitutes reversible error.
¶ 35. " Hatten does not require literal truth in the reason proffered. It only requires that there be some basis in fact sufficient to allow the court to make a reasonable judgment that it is not contrived." Snow v. State , 800 So. 2d 472, 480-81 (Miss. 2001). Because the court did not determine whether the State's allegation that McMillan and Lagrone were related to individuals who had been prosecuted had some basis in fact, there is no way to determine if its judgment that this allegation was not contrived was reasonable. When a prospective juror is struck based on information received from outside sources, the trial court has a duty to probe the reliability of this information:
While we do not hold today that our trial judges should conduct a `mini-hearing' within a Batson hearing each time a peremptory challenge is exercised based on information gained from outside sources, we do depend on the trial courts to exercise caution to ensure that peremptory challenges based on information from outside sources is credible and supported by on-the-record factual findings to this effect and that a complete record is made on this issue. If in doubt about the validity of outside information, the trial court should do what is necessary to ensure the proposed reasons are non-pretextual. This may include questioning the outside source on the record.
Brawner , 872 So. 2d at 12. The trial court in this case did not make any effort to determine whether the information the assistant district attorney received from the law enforcement officers about McMillan or Lagrone was true. The trial court's failure to make any factual findings regarding this outside information, in my judgment, requires reversal. See Bounds v. State , 688 So. 2d 1362, 1367 (M iss. 1997), overruled on other grounds by Brown v. State , 890 So. 2d 901, 913 (Miss. 2004) (reversing and remanding for a new trial because of failure to comply with Hatten ); Bogan v. State , 811 So. 2d 286, 288 (Miss.Ct.App. 2001) (same).
¶ 36. I would reverse the judgment of the trial court and remand this case for a new trial. I dissent.
GRAVES, J., JOINS THIS OPINION.