Willie Jerome MANNING a/k/a "Fly"
v.
STATE of Mississippi.
Willie Jerome Manning a/k/a Fly
v.
State of Mississippi.
Supreme Court of Mississippi.
*518 Mark Williamson, Starkville, Clive A. Stafford Smith, New Orleans, Attorneys for Appellant.
Office of the Attorney General by Leslie S. Lee, Marvin L. White, Jr., Attorneys for Appellee.
EN BANC.
PRATHER, Chief Justice, for the Court:
¶ 1. This appeal arises from the Batson order entered by the Oktibbeha County Circuit Court on remand by this Court. Because the circuit court's findings regarding the State's articulated race-neutral reasons for its use of peremptory strikes in this case were not clearly erroneous or against the overwhelming weight of the evidence, we affirm the circuit court's judgment overruling Willie Jerome Manning's Batson objection in this case. Following the statutorily mandated review of Manning's sentence, we further find that the death penalty was lawfully imposed in this case and therefore affirm Manning's convictions and sentences.
STATEMENT OF THE FACTS
¶ 2. Willie Jerome Manning was convicted on July 24, 1996, of two counts of capital murder for killing Emmoline Jimmerson and Alberta Jordan during the commission of robbery. This Court found no error requiring reversal of Manning's convictions on appeal, but remanded the case to the Oktibbeha County Circuit Court for a hearing to review the propriety of the State's peremptory strikes against two jurors on the second venire under Batson v. Kentucky,
¶ 3. At the hearing, District Attorney Forrest Allgood articulated three reasons for the State's strike against Juror 57, Jacqueline Wright-Brewer, a black female. He perceived that Juror Wright-Brewer was hostile to the State, because she sat with her arms folded and glared at him during voir dire. District Attorney Allgood also stated that he was concerned about her reluctance to serve on the jury because her small child would have to be in the care of others during the trial. Most importantly, District Attorney Allgood said that he struck Juror Wright-Brewer based upon her response on her juror questionnaire indicating that she could not personally vote to impose the death penalty.
¶ 4. District Attorney Allgood also articulated reasons for striking Juror 59, Renata M. Johnson, also a black female. He said that she had been represented by Manning's trial attorney, Richard Burdine, in the past.[1] She knew members of Manning's *519 family, particularly his brother Draper Manning. Finally, Juror Johnson had participated in rallies and marches opposing Manning's first two death penalties, affirmed by this Court in Manning v. State,
¶ 5. Defense Attorney Clive Stafford Smith argued that the reasons articulated by the State were pretextual. Particularly, he maintained that the record did not support District Attorney Allgood's assertions that Juror Wright-Brewer sat with her arms folded during voir dire or that Juror Johnson was represented in the past by Richard Burdine. Attorney Smith also pointed to the State's failure to strike other jurors with small children and with similar and even stronger anti-death penalty views than Juror Wright-Brewer, who was rehabilitated during further individual voir dire.
¶ 6. Based upon the arguments presented at the hearing, Judge Montgomery issued an order on June 3, 1999, sustaining the State's peremptory challenges and overruling Manning's Batson objection. Judge Montgomery specifically found that there was no resulting prejudice from the State's strikes on the second venire, because the challenges were made against potential alternates, and no alternates ever had to sit on the jury. He also found that the reasons offered by the State for striking Jurors Wright-Brewer and Johnson were valid race-neutral reasons and that the State therefore met its burden for sustaining the strikes and overruling Manning's objection.
¶ 7. Manning now appeals to this Court from the circuit court's Batson order. He does not challenge the circuit court's findings regarding Juror Johnson, but argues that the State's articulated reasons for striking Juror Wright-Brewer were purely pretextual. He also disagrees with the circuit court's application of harmless error analysis in its Batson findings.
STATEMENT OF THE LAW
I.
THE COURT ERRED IN FINDING THE REASONS OFFERED BY THE DISTRICT ATTORNEY WERE RACE NEUTRAL WHEN IN REALITY THEY WERE PRETEXTS FOR PURPOSEFUL DISCRIMINATION.
¶ 8. In Thorson v. State,
We give great deference to the trial court's findings of whether or not a peremptory challenge was race neutral.... 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.... 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.
Thorson,
¶ 9. This Court has identified five indicia of pretext when analyzing proffered raceneutral reason for peremptory strikes under Batson: "(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." Mack v. State,
¶ 10. Manning maintains that all three of the State's proffered reasons for striking Juror Wright-Brewer were pretextual. *520 First, Manning argues that there is no evidence in the record supporting the State's allegation that Juror Wright-Brewer sat with her arms folded or glared at the district attorney during voir dire. Although lack of record support is one indication of pretext, Mack, supra, as the State responds in its brief, the basis for the prosecutor's strike need not be in the record. See Thorson,
¶ 11. In Conerly v. State,
¶ 12. Manning also takes issue with the State's articulated reason for striking Juror Wright-Brewer based upon her juror questionnaire response that she could never vote to impose the death penalty. He points out that on individual voir dire, Juror Wright-Brewer indicated that she misunderstood the question and could vote for the death penalty in a proper case. The State admits that Juror Wright-Brewer was rehabilitated enough to withstand a challenge for cause. However, that does not preclude use of a peremptory strike based upon her juror questionnaire response. "[T]he prosecutor's explanation need not rise to the level of justifying exercise of a challenge for cause." Davis v. State,
¶ 13. Manning also argues that striking Juror Wright-Brewer because of her juror questionnaire response and her reluctance to serve due to having a small child amounted to disparate treatment, as evidenced by the State's failure to strike white jurors who expressed more concern for child care and who were objectively less favorable to the State. He points to Jurors Elizabeth Hutchins and Candace McGee, both white females whom the State opted not to strike. They both expressed concern over being away from their children during sequestration. Juror McGee also stated that she would require an eye witness before she could vote to impose the death penalty and said that she was concerned about coping with the gory details of the case and being swayed by sympathy.
¶ 14. Disparate treatment is strong evidence of discriminatory intent. Freeman v. State,
II.
THE TRIAL COURT ERRONEOUSLY APPLIED A HARMLESS ERROR ANALYSIS IN DETERMINING THAT THE STRUCK JURORS WERE ALTERNATES WHO NEVER MOVED TO SIT ON THE ACTUAL JURY.
¶ 15. In his ruling, Judge Montgomery found that because Jurors Wright-Brewer and Johnson were only potential alternate jurors, and the alternates never sat on the actual jury, no actual prejudice accrued to Manning due to the State's strikes against them. Manning argues that the circuit court improperly applied a harmless error legal standard, contrary to United States Supreme Court case law. He points to language in Powers v. Ohio,
III.
WHETHER THE IMPOSITION OF THE DEATH PENALTY IS DISPROPORTIONATE IN THIS CASE TO OTHER DEATH SENTENCES UPHELD BY THE COURT
¶ 16. Section 99-19-105(3) of the Mississippi Code requires this Court to review the sentencing in capital cases to determine:
(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;
(b) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101; [and]
(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
Miss.Code Ann. § 99-19-105 (Supp.1999). We considered and rejected Manning's argument on direct appeal that each of the aggravating factors found by the jury in his case were improperly applied. Manning,
¶ 17. We now examine the facts of this case to determine whether the death penalty was imposed in an arbitrary or disproportionate manner. This assessment requires a review of similar cases in which the death penalty was imposed and reviewed *522 by this Court since Jackson v. State,
CONCLUSION
¶ 18. Judge Montgomery erred in applying harmless error analysis in his consideration of the State's use of peremptory strikes against potential alternate jurors in this case. However, because the circuit court's finding that the State articulated sufficient race-neutral reasons for its use of peremptory strikes in this case was not clearly erroneous or against the overwhelming weight of the evidence, we affirm the circuit court's judgment overruling Manning's Batson objection. There being nothing in the record to suggest that Manning's rights were violated or that he was deprived of a fair trial, we also affirm the jury's verdict of guilty, and the subsequent sentence of death, and the judgment of the Oktibbeha County Circuit Court.
¶ 19. CONVICTION OF CAPITAL MURDER (TWO COUNTS) AND SENTENCE OF DEATH BY LETHAL INJECTION AFFIRMED. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. § 99-19-105(7) (SUPP.1999) AND M.R.A.P. 41(a).
PITTMAN, P.J., McRAE, SMITH, MILLS, WALLER, COBB and DIAZ, JJ., concur.
BANKS, P.J., dissents with separate written opinion.
BANKS, Presiding Justice, Dissenting:
¶ 20. I respectfully dissent from the majority opinion. Juror Wright-Brewer was peremptorily challenged by the State and stricken from the jury for reasons that other jurors similarly situated were not. In my view, the trial court erred in failing to find that the reasons proffered were pretextual and that the peremptory challenge violated Brewer's right not to be excluded from jury service because of her race.
¶ 21. Specifically, the State argued that one of its reasons for striking Wright-Brewer was because she had a small child. She did express some concern about her child's care in her absence. However, two other jurors who expressed similar concerns about their children's care, Elizabeth Hutchins and Candace McGee, both white females, were not challenged. In fact, Hutchins's and McGee's children were of younger ages, sixteen months and three months, respectively. If the State struck Wright-Brewer because of her concern about her absence from her twenty-month-old child, surely the State should have been just as (if not more) concerned about these two new mothers being separated from considerably younger infants.
*523 ¶ 22. Also, the State argued that Wright-Brewer was struck because of her view on the death penalty. Nevertheless, three white prospective jurors were not challenged after expressing their reluctance to impose the death penalty. The colloquy between Lorelei Morgan and the court was as follows:
THE COURT: Yes, ma'am, Ms. Morgan. You do not feel
MRS. MORGAN: I just don't know if I can handle all of the details, the gory
THE COURT: Okay. Do you feel that your emotions would make it impossible for you to be fair and impartial?
MRS. MORGAN: Probably, yes.
Similarly, Carol Ann Short said she would have problems with the death penalty and was not sure she could do it. Moreover, Catherine Oliver expressed concerns about both imposing the death penalty and her child. However, the State did not strike Morgan, Short, or Oliver.
¶ 23. Striking a prospective juror with the same objectionable characteristics as others not struck, when the only significant difference between them is their race, raises an inference that the articulated reason for the strike is a pretext to conceal the real unstated reason for the strike: racial discrimination. "For example, where the state accepts three white jurors who have been previously arrested, and then strikes an African American juror who shares this same characteristic, it would be difficult to accept as a valid raceneutral reason that the juror in question is being stricken because he or she has been previously arrested. Such a situation could reasonably give rise to a finding of pretext in the absence of an explanation as to why white jurors with exactly the same experience would be acceptable." Davis v. State,
¶ 24. Finally, at the Batson hearing on remand, the State added as one of the reasons for striking juror Wright-Brewer that her arms were folded while she looked up at the district attorney under her eyebrows glaring at him during the course of voir dire. The prosecutor stated that he perceived that she was hostile to him and his position "based on her demeanor." These observations were not noted at the time of challenging juror Wright-Brewer. There was no finding specific finding made by the trial court judge on this additional reason for the strike.
¶ 25. We have held that "it [is] necessary that trial courts 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 v. State,
¶ 26. Because, in my view, the State did not sufficiently rebut the prima facie case that it struck juror Wright-Brewer for racially discriminatory reasons, I would reverse the judgment and remand this case for a new trial.
APPENDIX
DEATH CASES AFFIRMED BY THIS COURT
McGilberry v. State,
Puckett v. State,
*524 Manning v. State,
Turner v. State,
Smith v. State,
Burns v. State,
Jordan v. State,
Gray v. State,
Manning v. State,
Woodward v. State,
Bell v. State,
Evans v. State,
Brewer v. State,
Crawford v. State,
Doss v. State,
Underwood v. State,
Holland v. State,
Wells v. State,
Wilcher v. State,
Wilcher v. State,
Wiley v. State,
Brown v. State,
Simon v. State,
Jackson v. State,
Williams v. State,
Davis v. State,
Taylor v. State,
Brown v. State,
Blue v. State,
Holly v. State,
Walker v. State,
Russell v. State,
Ballenger v. State,
Davis v. State,
Carr v. State,
Mack v. State,
Chase v. State,
Foster v. State,
Conner v. State,
Hansen v. State,
[*]Shell v. State,
Davis v. State,
Minnick v. State,
[*]Pinkney v. State,
[*]Clemons v. State,
Woodward v. State,
Nixon v. State,
Cole v. State,
Lockett v. State,
Lockett v. State,
Faraga v. State,
[*]Jones v. State,
Wiley v. State,
Johnson v. State,
Gray v. State,
Cabello v. State,
Jordan v. State,
Wilcher v. State,
Billiot v. State,
Stringer v. State,
Dufour v. State,
Neal v. State,
Booker v. State,
Wilcher v. State,
Caldwell v. State,
Irving v. State,
Tokman v. State,
Leatherwood v. State,
Hill v. State,
Pruett v. State,
Gilliard v. State,
Evans v. State,
King v. State,
Wheat v. State,
Smith v. State,
Johnson v. State,
Edwards v. State,
Bullock v. State,
Reddix v. State,
Jones v. State,
Culberson v. State,
Gray v. State,
Jordan v. State,
Voyles v. State,
Irving v. State,
*526 Washington v. State,
Bell v. State,
DEATH CASES REVERSED AS TO GUILT PHASE AND SENTENCE PHASE
Edwards v. State,
Smith v. State,
Porter v. State,
Kolberg v. State,
Snelson v. State,
Fuselier v. State,
Howard v. State,
Lester v. State,
Hunter v. State,
Lanier v. State,
Giles v. State,
Duplantis v. State,
Harrison v. State,
Butler v. State,
Jenkins v. State,
Abram v. State,
Balfour v. State,
Griffin v. State,
Bevill v. State,
West v. State,
Leatherwood v. State,
Mease v. State,
Houston v. State,
West v. State,
Davis v. State,
Williamson v. State,
Foster v. State,
Smith v. State,
West v. State,
Fisher v. State,
Johnson v. State,
Fuselier v. State,
West v. State,
Jones v. State,
Moffett v. State,
Lanier v. State,
Laney v. State,
DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT
Reddix v. State,
Wheeler v. State,
*527 White v. State,
Bullock v. State,
Edwards v. State,
Dycus v. State,
Coleman v. State,
DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY
Walker v. State,
Watts v. State,
West v. State,
Smith v. State,
Berry v. State,
Booker v. State,
Taylor v. State,
[*]Shell v. State,
[*]Pinkney v. State,
[*]Clemons v. State,
[*]Jones v. State,
Russell v. State,
Holland v. State,
Willie v. State,
Ladner v. State,
Mackbee v. State,
Berry v. State,
Turner v. State,
State v. Tokman,
Johnson v. State,
Williams v. State,
Lanier v. State,
Stringer v. State,
Pinkton v. State,
Mhoon v. State,
Cannaday v. State,
Wiley v. State,
Williams v. State,
NOTES
Notes
[1] The transcript from Manning's original trial reveals that Juror Johnson's father, not Juror Johnson herself, was represented by Richard Burdine.
[*] Case was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.