IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-00596-SCT H.A.S. ELECTRICAL CONTRACTORS, INC.

v. HEMPHILL CONSTRUCTION COMPANY , INC.

DATE OF JUDGMENT: 03/24/2015 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JIM L. DAVIS, III ATTORNEYS FOR APPELLEE: DAVID BONDS ELLIS DANNY ALTON DRAKE NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 10/12/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: ¶1. This case returns af ter rem and to the trial c o urt, which was instructed to com plete a
Batson 1 analy sis. 2 3 The trial c ourt has provided a certif ied result of that proceeding. The trial

1 Batson v. K

en t u ck y , 4 7 6 U .S . 7 9 , 1 0 6 S . C t. 1 7 1 2 , 9 0 L . E d . 2 d 6 9 (1 9 8 6 ).
2 On rem and, the trial court should c o nduct the third step of Batson a naly sis f o r J uror 7. H AS should be allowed the opportunity to prove purpos e f u l discrim ination – i.e., Hem phill’s race-neutral reason f or striking Tay lor was pretextual. A nd Hem

p hill should be perm itted to def end its stated r eason f

or striking T ay lor – age. But Hemp h i l l is restricted f rom giving any new, race-neutral reason to justif y the strike. Further , to support their argum ents, both p arties a re lim ited to using the r ecord as it existed at the t im e of the original Batson hearing.court ruled that H.A.S. Electrical Contractors, Inc. (HAS) f ailed to m eet its burden o f proving purposef u l discrim ination. ¶2. W e have reviewed the entire record of all proceedings a n d a f f i r m t h e trial court j u d g m ent. HAS f

a iled to prove (1) purposef ul discrim ination in the jury selection process,

or (2) that the trial court’s ruling was clearly e r roneous, or ( 3) that t he trial court’s r uling was against the overwhelm ing weight of the evidence. See Booker v. State , 5 So. 3 d 356, 357-58 (Miss. 2008). Accordingly , we af f irm the jury ’s v e r d i c t , the trial c o urt’s denial of HAS’s

m otion f or new trial, and the trial c o u r t ’ s post-judgm ent award of attorney ’s f ees to
Hem phill. 4
BACKGROUND FACTS AND PROCEDURAL HISTORY ¶3. Hem

p hill was the general contractor on a project in W aveland, M ississippi, to rebuild

a state park a f

ter H urricane Katrina. Hem phill entered a s ubcontract with H .A.S. Electrical Contractors, Inc. (HAS) – one of m any entered into between these com panies, both bef

ore and af ter the e vent com

p lained o f

– to p e r f

o r m the electrical work. According to HAS,

H.A.S. E lec. Contra c t

o r s , Inc. v. Hem

phill Constr. C

o. , No. 2015-CA-00596-SCT, 2016 W L 3 091754, at *5 (Miss. June 2, 2016) ( H.A.S. I ). In H .A . S . I , th is C o u rt sp ecif

ically h eld th at H A S w h o lly f

ailed t o m e e t i t s b u rd en in p r o v i n g H em p h i ll’s race-n eu tral r easo n f o r strik in g J u ro r 1 3

– h is em p lo y m en t

– w as p retex tu al. I

d . A n y arg u m en t raisin g th e issu e o f Ju ro r 1 3 is b arred b y res ju d ica ta an d n eed s n o f u rth e r d iscu ssio n . 3 I agree with m y f

ellow j ustice that perem

ptory strikes should be v iewed as a whole. Dis. O p . at ¶ 50. Contrary to the dissent’s a ssertions, the t rial court was not lim ited or restricted in perf

orm i n g i t s B a tson analy sis on Juror 7

. However, Hem phill was restricted f rom providing any new, r a ce-neutral reason t o justif y its strike, and any other reason aside f rom age will not be considered.

4 We ex p ressly

reserv ed th e atto rn ey ’s-f e e s issu e f

o r p o st-rem an d

. 2Hem

phill did not pay

HAS all it was owed under the subcontract. HAS sued Hem phill f or breach of contract, quantum meruit , and conversion. Af ter H e m phill had paid HAS $2,498,000, HAS claim ed an additional $570,678.71 5 was d u e , p l u s attorney ’s f ees, costs, and punitive dam ages. Hem p h ill countersued f

or breach of c ontract, s eeking $23,677.04 in dam ages. ¶4. Af ter a three-day trial, the jury f ound in f a v or of H em

phill on both HAS’s claim s and
Hem phill’s counterclaim

. H o w e ver, the jury d eclined to award Hem phill m onetary dam ages. The subcontract entitled the “prevailing party ” to reasonable attorney ’s f ees and expenses.
Hem phill f iled a post-trial m otion f o r a t t o r ney ’ s f

e es. Hem phill sought $105,506.72

– $101,787.71 of which was expended to d e f e n d against HAS’s claim s. Hem phill attached detailed spreadsheets listing the tim e its attorney s spent on the case and their hourly rates. The trial court entered judgm ent f or $90,000 in attorney ’s f ees, an a mo unt t he trial court believed was spent in def ense of HAS’s claim

. ¶5. HAS f

iled a m otion f

or new tr i a l o r , i n t h e a l t e r n a tive, a m otion f or judgm ent

n o twithstanding the verdict (JNOV). HAS argued that the trial court erred (1) in a l l o w i n g Hem phill t o u s e two of i ts perem ptory s trikes to exclude two Af rican Am ericans f

rom the jury , arguing neither pretext n o r p urposef ul discrim i nation, 6 and ( 2) in not f inding the unilateral attorney ’s-f

ees provision of the contract t o be unconscionable. T h e t rial court

5 I n i t s o p e n in g statem en t, H A S red u ced its co m p en s ato ry claim to ap p ro x im ately $ 2 7 0 ,0 0 0

.

6 T h e f irst tim e p retex t an d p u rp o sef u l d isc r i mi n a t io n w ere m en tio n ed in th e trialco u rt p ro ceed in g s w as b y th e trial co u rt o n rem an d , q u o tin g th is C o u rt’s o rd er in H .A .S . I. 3denied HAS’s m otion f or new trial and alternative m o tion f or JNOV. ¶6. In its brief

s , HAS com

plains of the attorney ’s-f e es award and argues that the trial

court m ishandled the Batson hearing when HAS challenged Hem p hill’s use of perem

ptory strikes on Juror 7 and Juror 13, 7 both Af rican-Am erican m ales.
STANDARD OF REVIEW ¶7. Dual standards of review apply in t oday ’s c ase. In reviewing a claim f o r a B a t son violation, we f

ollow the standard set by t he United States Suprem e Court, which states that “[ o]n appeal, a trial court’s ruling on the issue of disc r im inatory intent m ust be sustained unless it is clearly e rroneous.” Snyder v. L ouisiana , 55 2 U

. S

. 4 72, 477, 128 S

. Ct. 1203, 1207, 170 L. Ed. 2d 1 75 (2008) (citations om itted). W e will not overrule a trial court on a
Batson ruling unless the record indicates that the ruling was clearly erroneous o r against the overwhelm ing weight of the evidence. Booker , 5 So. 3d at 357-58. W e “af f o rd [ ] great def erence to the trial court’s f inding of whether a perem ptory challange was race neutral

. .

. because f

inding that a striking party engaged in discrim ination i s largely a f actual f inding.”
H.A.S. I , 2016 W L 3091754, at *3. A t rial court’s d ecision t o award attorney ’s f ees is subject

to the abuse-of

-discretion standard of review. See Wyssbrod v. Wittjen , 798 So. 2d 352, 357 (Miss. 2001); Terex Corp. v. I ngalls Shipb u i l

d i n g, Inc. , 671 S o. 2d 1316, 1324 (Miss. 1996).
ANALYSIS
I. Batson

7 In our prior opinion, we f ound no Batson violation as to Juror 13.

4¶8. Batson r e q u i r e s a three-step analy sis. See H.A.S. I , 2016 W L 3 091754, at *3. This three-step process i s to prevent perem p tory strikes f

rom being used in a racially discrim inatory m a nner. Pitchford v. State , 45 So. 3d 216, 224 (Miss. 2010) (citing Batson , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69). Firs t , the party objecting t o the perem ptory strike of a potential juror m ust m ake a prim a f

acie showing that race was the criterion f or the s t rike. S econd, upon such a showing, the b urden shif ts to the State to a rticulate a race-neutral reason f or e xcludi ng that particular juror. Finally , af ter a race-neutral explanation has been of

f e red by the prosecution, the trial c ourt m ust determ ine whether the objecting party has m e t i ts bu r d e n t o prove that there has been purposef ul discrim ination in the exercise of the perem p tory strike, i.e., that the reason given was a pretext f or discrim ination. Pitchford , 45 So. 3d at 224. This Court consistently has held that: [ t]he Batson doctrine is not concerned w i th racial, gender, or e thnic balance on petit juries, and it d o es not hold that a party is entitled to a jury

com posed of or i ncluding m em

bers of [ a] cognizable g r o u p . Rather, it is c oncerned exclusively with discriminatory intent on the part of the lawy er against whose use of his perem

ptory strikes the objection is interposed.
Strickland v. State , 980 So. 2d 908, 915 (Miss. 2008) (quoting Ryals v. State , 794 So. 2d 161, 164 (Miss. 2001)) (em phasis added). ¶9. “Unless a discrim i natory intent is inherent in the

. . . explanation, the r eason of f ered will be deem e d race neutr al.” R andall v. State , 716 So. 2d 584, 588 (Miss. 1998). This
process does not dem and an explanation that is persuasive, or even plausible – “any reason which is not f

a cially v i olative of equal protection will suf f ice.” I d. “[ R]ace neutral explanations m

ust be viewed in the light m ost f avorable to the trial court’s f indings.” Walker

v. State , 815 So. 2d 1209, 1215 (Miss. 2002). It i s w ell-established f or B a tson determ inations that:

5[ a] reversal w ill o nly occur if the f actual f indings of

the trial judge appear to be “clearly erroneous o r agai n s t t he o verwhelm ing weight of the evidence.” Tanner [v. State] , 764 S o. 2d 385, 393 (Miss. 2000).

. . . “On appellate review, the trial court’s d eterm inations under Batson

. . . a re accorded great d ef erence because they are based, in a large part, o n credibility .” Colem an v. State , 6 97 So. 2d 777, 785 (Miss. 1997).

. . . The term “great def erence” has been def

i ned in the Batson c ontext as m e aning an insulation f rom appellate reversal any trial f indings which are not c learly erroneous. Lockett v . S tate , 517 So. 2 d [ 1346,] 1349 (Miss. 1987).
Booker v. State , 5 S o. 3d 356, 357-58 (Miss. 2008) ( quoting S m ith v. S tate , 835 So. 2d 927,
940 (Miss. 2002)). This s tandard conf orm s to the United S tates S uprem e Court’s ruling in Snyder , 5 52 U.S. at 477, which held that “[ o ]n appeal, a trial court’s ruling on the issue of discrim inatory intent m

ust be sustained unless it is clearly erroneous.” See a lso Hernandez

v . N e w Y ork , 500 U.S. 352, 365, 111 S. Ct. 1859, 1 14 L. E d

. 2 d 395 (1991) (quotin g W a i nwright v. Witt , 469 U .S. 4 12, 428, 105 S

. Ct. 844, 83 L. Ed. 2d 841 ( 1 9 8 5 ) ) (“[ d]ef erence to trial court f

indings o n the issue of discrim inatory in t e n t m akes particular

sense in this c o n t e x t because

. . . evaluation o f the prosecutor’s state of m ind based on dem eanor and credibility lies ‘peculiarly within a t rial j udge’s province.’”). I n H ernandez , the United States Suprem e C ourt added that “in the absence o f exceptional circum stances, we would def

er to [ the trial court].” H

ernandez , 500 U.S. at 366, 111 S. Ct. 1859. ¶10. At the beginning of voir dire, the trial c ourt introduced HAS’s c lient, Harry Schepens, to the venire. W ell bef

o re the Batson issue arose, Hem phill’s attorney

asked the venire:
Mr. Schepens (HAS’s f

ounder and star-witness) has h ad s om e m edical issues. I don’t know if they ’ re g oing t o i mp a c t this trial, but I am concerned about sy m pathy

. . . . I want to know that y ou can just listen to t he testim ony and not let any m edical i ssues cloud y our judgm ent. I want to know t hat y ou can b e f air and im partial and listen just to that testim ony .

6One sixty -seven-y ear-old prospective juror (Juror N o. 28) c onceded that S chepens’s

condition 8 would cause her n ot to be f air and im partial. Additionally ,the panel was inf orm ed that this was a construction case involving “a subcontractor-contractor dispute.” ¶11. A revie w o f t h e f

irst hearing transcript revealed t o J u dge Em f inger t hat he “got

. . . of f k i l ter” by Davis’s (HAS’s attorney ’s) asking f or an im m ediate race-neutral reason, contrary to the trial court’s custom ary practice. I n the rem and analy s is, the trial court clarif ied
h i s own w ords. The trial court recognized that, n ot only had it f ailed to f ollo w i t s n o r m a l , procedural analy sis of Batson pursuant t o Rule 4.0 5 o f t he Unif orm Rules of Circuit and Chancery Court Practice, b ut it had m i stakenly s aid a “pattern” had not b een proven, rather

t h a n stating HAS had f

ailed to show a prim a f acie case of purposef

ul discrim ina t i o n . Although, a p attern is not an essentia l e l em ent to establish a prim a f acie showing of purposef u l discrim ination, it is an elem ent which can be used. ¶12. Upon receipt of the rem and order, Judge Em f inger reviewed the transcript of the f irst hearing and, without objection, attached a copy of the j u r y list with his notes and jury
inf orm ation cards as exhibits to this record. 9 10 ¶13. On rem and, Judge E m f inger readily recognized his m istake, recounting his reaction

8 T h e reco rd ref

lects th a t M r. S ch ep en s w a s tw o m o n th s p o st-stro k e an d sev en ty -n in e y ears o ld

.

9 T h is ex h ib it rev eals th a t n o o th er j u ro r o v er th e ag e o f f if ty -f iv e w as s e lected b y H e m p h i ll, af ter strik in g T a y lo r, b ef

o re Ju ro r N o . 1 5 , a six ty -sev en - y ear-o ld , w as ten d e red

. T h at w h ite j u ro r w as H A S ’s th ird p reem p to ry strik e, a ll th ree o f w h o m w ere w h ite. N o r w as th is C o u r t aw are th at Ju ro r 2 8 w as a six ty -sev en -y ear-o ld w h ite f em ale.

10 H A S ’s M o tio n f

o r a N ew T rial p ro v id ed o n ly th e g en d er an d racial m ak e-u p o f th e f irst tw o p an els o f th e v en ire. H o w ev er, H A S d id n o t in c l u d e th e ag e o f th e p an el m em b ers. 7to HAS’s attorney ’s statem ent:

. . . Mr. Davis responded, “Judge, we’ll just point out that that’s the f irst black we’ve reached on the panel. Now, at tha t point in tim e none of these attorney s in this case, I’ve never been in a jury trial w ith any of these a ttorney s , I did not know

- - so they didn’t know what process the court m ay use i n considering Batson challenges a n d w h a t p rocess m a y be in place to designate w ho’s white, who’s black, who’s m ale, who’s f

em ale. So when Mr. Davis said t hat, I a s sum ed that he was m aking a record that this was a black juror that had been stricken.

. . . But that’s why when he m ade that st a t e m ent, “Judge, we’ll j ust point out that that is th e f

irst black we’ve reached on the panel,” when I said “any thing f urther , ” I really didn’t expect there to be any thing f urther. That’s just what I alway s say

when som ething com es up. But, in any event, M r. Davis at that point said, “Judge, w e -- I g uess we would g o a h ead and a sk f or a race neutral reason b ecause it’s the f irst black we’ve reached on the panel at this tim e of the venire.” Now, at that point, I think I m ade m y f irst m istake. U nder the Unif orm Rules o f Circuit and County Court P ractice, Rule 4.05, Jury Selection Process, 4.05(b) say s that “ constitutional challenge s t o the use of preem ptory challenges shall be m ade at the tim e each panel is tendered.”
Now I’ve alway s d one that a nd that’s the way that it’s a l way s been done in m y presence when I was both a practicing attorney and since I’ve been on the bench and I don’t know why at this point I allowed Mr. Davis to go f orward with his Batson challenge.
You c an look on down to -- on page 53, and l ines 19 through 24, when Mr. Davis again wanted to raise a Batson challenge. On line 23, I said, “I’m going to let y ou m ake that objection at the end,” m eaning when whole panel had been tendered again.
I consider that when Mr. Davis had tendered 12 people to the def ense that that was the proper tim e f or the def ense to raise a ny B a t

s o n o r r everse Batson challenges that it m ight wish to use. Af ter the def

ense then had gone through all 12 of

the panel of

the jurors that were tendered to them , then t hat

8would have b een the a ppropriate tim e f

or Mr. Davis to h ave raised any B atson challenges. However, I allowed him t o g o f orward here so I t hink that’s part of w hat got us of

f kilter there w as I allowed that challenge to proceed prior to the tim e it real l y s h o u l d have at the conclusion or af ter the def

ense had considered all 12 jurors that had been tendered to them

. Now next I say , “ W ell, I d o n ’t see how in the w orld y ou can have a pattern af ter one strike, but I will, as I believe t he cases say , I should ask y ou f or a race neutral reason f

or Num ber 7, Tay lor.” Now m y

thought process is, at that point in tim e, I w as f inding that Mr. Davis had not m ade a prim a f acie showing of

racial discrim ination.
I u sed the word pattern. I used the word pattern because in all the cases I’ve e ver d e a l t with and I’ve e ver seen, prim a f acie c ases have been based upon there being a pattern in the num ber of strikes, all the strikes being used against black jurors or a d isproportionate n um ber b eing m ade against black jurors as opposed to white jurors.
But there was nothing in this case as it existed, n othing during the voir dire o r nothing that was s aid that e x i sted o utside of the f act that this was the f irst black juror that was p r e s e n t e d a nd it w as t he f i rst black juror that was stricken b y the def

ense as Dl. But while I used the word pattern, I was f inding that there was not -- that the def ense -- e x cuse m e , that Mr. Davis h a d not m ade a prim a f

acie showing of

racial discrim i nation.
Now what happened next was t he process that I believe I was required by a p rior Mississippi Suprem e Court r ulings t o m ake. I h a d a l w a y s , both as a practicing attorney a nd since I’ve been on the bench , the practice has been that even if y o u f

o u n d t h a t there was not a race - - a prim a f acie showing of racial discrim ination the c ourt w ould a lway s go f orward and m ake a r ecord f or appellate purposes and require or ask tha t a r a c e neutral reason be given. That’s how we’ve alway s d o n e i t in this district and h ow I’ve alway s seen it d o n e ; so that if I was incorrect in f inding that t he plaintif

f had not m a de a prim a f acie showi n g o f r a cial discrim ination, that the record would be com plete f or the Suprem e Court to consider. . . . ¶14. W h en Davis raised Batson regarding Juror 7, J udge Em f inger states that h e assum ed Davis was m erely noting f or purposes of

the record that Juror 7 was an Af rican Am erican. Although Judge Em f

i nger stated “Any

thing f u rther? ” h e did not expect a r eply

. At that point,

9Davis m ade a prem ature dem a nd f or a race-neutral r eason. J u dge Em f inger accom m odated Davis’s request, w hich HAS claim s w as e r r o r . J udge Em f inger of f e rs that this

accom m odation was contrary to h i s practice as an attorney and as a trial judge. Judge
Em f inger acknowledged that he f ailed to f ollow R ule 4.05 of t he Unif

orm Rules of Circuit and C o u n t y C o u rt Practice, w hich reads that “ [ c]onstitutional challenges to the use of
preem ptory challenges shall be m ade at the tim e each panel is tendered.” URCCC 4.05. The proper tim e to consider Batson challenges was af ter Drake had tendered a panel to Davis. ¶15. Judge Em f

inger f urther inf orm s us that he m isspoke when he used the word “pattern.”
Now what I m eant by say ing that was that there had not been a prim a f acie s h o w i n g , t hat M r. D avis had not m ade a prim e f acie showing of racial discrimi n a t i on. “That’s the f irst p erson -- t hat’s the f irst black that’s been present e d

. I don’t believe that there’s any possible pattern.” So I was just rehashing at that p oint that I h a d f ound that there had not been a prim a f acie showing of

racial discrim ination. Judge E m f

inger explained that he m ade a f inding that D avis had not e stablished a prim a f acie

case of purposef

ul discrim ination, an error a c knowledged by Judge Em f i nger. Even though Judge Em f

inger determ ined no prim a f acie case h ad been m ade, he required H em phill to state

a race-neu t r a l r e a s o n. That e rror is of no event f or, once J u dge E m f

inger a s ked f

or a raceneutral reason and Drake provided age, the prim a f acie showing becam e m oot. Manning v. State , 735 So. 2d 323, 339 (Miss. 1999) ( “W hen the prosecution gives race-neutral reasons f or its perem

ptory strikes, the suf

f iciency of the def

e ndant’s prim a f

acie case becom es

m oot.”). ¶16. J u dge Em f

inger c larif

ied that, at the t im e he r

uled on t he stri k e , h e w a s d e c i d i n g whether age was a valid race-neutral reason or an im perm issible category

.
1 0Now at that point in tim e , as I was sitting here, there was several things

going through m y head: Num ber one was that when they gave the race neutral reason as age, I was considering whether or not, I knew that race and gender w e r e p r o h ibited or suspect categories under B atson , a nd I was try ing t o rem em ber whether or not age was a race neutral reason or whether or not age was a suspect category , I know that age is a suspect category in certain other m atters and I w as try i ng to determ ine or thought in m y m ind as to whether or not I had an age discrim ination problem with t hat being u s ed, I s t arted to respond and I said, “All right. I believe that there’s not a pattern.” 11

. . . Now with m y next s entence I’m considering the race neutral r eason t hat I w as g iven by the def

e nse, the older venire, “whether there’s one or two o r three, I don’t believe that’s a good reas o n ” a n d a l l t hat tim e I ’m considering whether or not age is a problem or whether or not age is a race n eutral reason. At that point, I decided that, in f act, age was a good race neutral reason and that there was nothing about that that would cause or f or m e to – nothing about t he process there that caused m e t o b elieve that the def ense was using that s t r ike to discrim inate based upon race and I said I’m going to r ecognize the strike and we went f

orward. ¶17. Because Judge E mf i n g e r d e t e r mi n e d t h a t n o p rim a f a c ie case h ad been m ade,
Hem phill should never have been required to provide a r a c e - n eutral reason f or the strike. However, once Judge Em f inger required a race-neutral r eason be given, he was then required

to determ ine if HAS had p rof f e red suf f icient rebuttal that H e mphill was purposef ully discrim inating against Juror 7 because of his race. Judge Em f inger was required to weigh the

11 Judge Em f

inger’s com m ent in the f

irst hearing was as f

ollows:
W e ll, I believe that there’s not a pattern. That’s the f irst perso n – that’s the f irst black that’s b een presented. I don’t believe that the r e ’ s any pattern possible. The older v e nire, whether there’s one or two, or three, I don’t b elieve that’s a good reason so I’m going to – I’m

going to recognize the strike.
T h is w as a so u rce o f

co n f u sio n f o r th e H .A . S . I C o u rt. 1 1r e a s o n g i v e n – “ Your H onor, we – m y reason, race neutral or otherwise, was age. W e ju s t

thought he was – we would pref er not to h ave an older jury p anel.” – against the rebuttal, if
any was of

f ered. N o rebuttal w a s f

o r t h c o m i ng. H AS stated only that Hem phill “accepted
Num ber 2, who is 68 y ears old, a nd Num ber 5 that w as 6 2 y ears o ld, but they were both white.” The trial court f

ound Hem

phill’s age/older-jury -panel reason w as race-neutral. W e have no f actual basis to f

ind otherwise. ¶18. The r ecord r eveals that no other person over the ag e o f f i f t y - f ive w as selected by
Hem phill af ter Juror 7 was struck. The record reve a l s H e mp h ill achieved an a ge-balanced jury panel: the panel consisted of one juror in her t wenties; three jurors in t heir thirties; three jurors in their f

o rties; three jurors in their f if ties; and two jurors i n their sixties. The record reveals the very

next two jurors selected by Hem p hill were y ounger Af

rican Am ericans. ¶19. The trial court concluded the rem a nd hearing by m a king the f

o llow f i ndings:
W hen I was considering t he rulin g t h en and in considering m y ruling now, the issue was w hether or not t hey struck him because of age but they struck him because they would pref er not to h ave an older jury p anel. The f act of the m atter is they a lready had som e one 6 8 on the panel, som eone 62, and I believe Mr. Tay lor’s 6 3 , and that the objection w as or the reason was they did not wish to have an older panel. Now that’s why I was considering one, two, or three.
But at the e nd of the day , a ge being a s uf f icient r ace neutral reason, the f act that y ou’ve already got two people above the age of 60 on the jury venire, there was nothi n g a b o u t that strike that I believed was purposef ul d i s c r i mi n a t ion and I believe that it was n ot pretextual and I believe that Mr

. Tay lor was stricken because they did not wish to have s o m any older persons on the jury that heard this case. The f act that they already h ad two a b ove 60, I think they struck Mr. T ay lor because he was the third person out of the f irst seven th ere that was going to be above the a ge of 6 0 and they d id n ot want to have an older jury panel and I believe that is a race n eutral r eason and I don’t f ind that to be pretextual. Nothing that was said t oday r eally changes m y m ind

1 2f

rom what I saw and heard that day and so that will be the Court’s ruling.
As I go f orward now, y ou’ve looked at oth e r t hings, y o u k now, and, obviously , I’ve looked at other things. The only other person that was above the age of 60 that was tendered to either side in this case was Juror N um ber 15

. Juror Num

ber 15, Ms. Houston, she was actually stricken by the plaintif f

. So unl e s s I ’m m issing som ething, the d ef ense d id not have another person t hat was subm itted to them during the course of the proceedings that was above the age of 60. Again, I’ m n o ting that now. T hat’s not som ething that I would have c o n s i d e r e d , because we w ere only a t Juror Num ber 7, so I wouldn’t have considered that then. But I did consider the f act that age w a s a r a c e neutral reason and t h a t i t wasn’t the a ge o f a particular j uror but, a ctually , the objection o r their race n e utral reason was w e don’t h ave a n o lder jury panel and to have the third person out of the f irst six j urors t o be above the age of 60, I can see that as being a race neutral reason. So that’s going to be m y r uling. The t rial court f

ound Hem

phill’s stated reason d

uring voir dire

– “pref

er[ ring] not to have an older jury panel” – as perm issible, credible, and not pretextual. ¶20. Based on the record bef ore us, there is no evidence o f p u r p o sef ul discrim ination of
Af rican-Am erican jurors, despite the dissent’s protestations otherwise. This case was

rem anded to the trial court f or a B atson exam ination as to Juror 7, of f ering a f ull opportunity
f or HAS to rebu t H e mp h i ll’s reason. The t rial court acknowledged that he a cted upon the
prem ature insistence of HAS in requesting an im m ediate ruling on its B a t s o n c h a llenge. Judge Em f

inger acknowle d ged he did not f ollow his custom a ry practice of conducting a hearing at the tim e the jury panel had been tendered. ¶21. W e f

ind no e rror i n t h e t r i a l c o urt’s acceptance of Hem phill’s race-neutral reason.
HAS’s r e b u t t a l w as l acking and n onconvincing t o J udge Em f inger. It is unavailing to this
Court as well. Judge Em f

inger determ i ned t hat Hem phill had p reviously accepted jurors who

1 3were sixty -eight y ears old and sixty -two y ears old. H owever, no juror over the age of f if ty

f ive was selected f

or service af

ter Hem phill’s f irst strike. O nly HAS s truck a juror over that age, when it struck a sixty -seven-y ear-old, white f em a le. ¶22. Upon reconsideration, Judge Em f inger f ound HAS d eveloped n o racial an i mus, no pretext evidence, or purposef ul d i s c r im i nation, and conclusively no Batson v iolation. Contrary to the dissent’s assertion otherwise, HAS was given the opportunity w hen the panel

was seated and again wh e n t h i s c a se was rem anded to o f f er rebuttal to m eet its b urden of proving purposef

ul discrim ination. It f

ailed to do so bef

ore the trial court. The trial court’s ruling was neither clearly errone o u s n o r against t he overwhelm ing weight of the evidence.“‘[ The best evidence [ of discrim inatory

intent] of ten will be the dem e anor of the attorney who e xercises the c hallenge,’ m aking the t rial court’s f irsthand observations of even greater im

portance.” Synder , 552 U.S. at 477. ¶23. W e reject the d i s s e n t’s baseless assertion that H em phill’s c o unsel’s reason f

or striking
Juror 7 and Judge Em f

inger’s a nd the Majority ’s f indings are absurd. Such a charge f ails to
account f or a ge being a valid race-neutral reason f or s triking a venire m e m

ber. Age is a wellsupported, race-neutral reason f or a perem

ptory strike. See, e.g., Stewart v . S tate , 662 So. 2d 552, 5 58 (Miss. 1 9 95) (citing Harper v. State , 635 So. 2d 864, 868 (Miss. 1994); Sim on

v. State , 633 So. 2d 407, 411 (Miss. 1993); Lockett , 5 17 So. 2d at 1 351)). T hus, we f ind that
Hem phill’s reason f

or striking J uror 7 – not wanting to seat a n o l d e r jury panel

– was not pretext f or purposef

ul discrim ination. ¶24. H e mp h i l l , as the striking party , m e t its burden u n d e r s t e p t w o o f B a t s o n t o

1 4dem onstrate a race-neutral explanation f or the strike. S

e e P i t c h f o r d , 45 So. 3d 216, 224 (Miss. 2010) ( describing three-step process o f Batson , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69). Under step three, the burden shif ted back to H AS to prove the stated reason f or the strike was m erely

a pretext f

or discrim ination. Id. ¶25. HAS argues “disparate treatm ent” – i.e., “the presence of unchallenged j urors of the opposite race who share the characteristic g iven a s the b asis f or the challenge.” Lynch , 877
So. 2 d at 1 272. B ecause Hem phill accepted two white f e ma l e j u r o r s aged sixty -three and sixty -eight, H AS argues the s trike of a black m ale juror in his sixties based on his age is per

se p r e t e x t ual. But this Court has held disparate treatm ent “is not necessarily dispositive of discrim inatory trea t me n t

. ” Berry , 802 So. 2d at 1039. Rather, it “is only one f actor t o be

c o n s i d e r e d by the trial court[ .]” Id. Moreover, af ter considering t his f

a c tor and no othe r rebuttal, the trial court reached a dif f erent conclusion. I nstead of proving pretext, the trial

court f ound that two jurors in their sixties already accepted actually led c r e d e n c e to
Hem phill’s contention that it “would pref er not to have a n older jury

. ” In other words, the trial court concluded this f actor m ade Hem

phill’s r ace-neutral reason m ore credible, not less so, a point not addressed by the dissent. ¶26. The r

ule of law r equires this Court to d ef e r to the credibility f

inding o f the t rial court, unless plainly c ontradicted by the r ecord bef ore u s. The record shows Hem p hill accepted the
very next two jurors, b oth y ounger Af rican Am ericans. 12 A nd every juror thereaf t er accepted by Hem phill was y ounger than Juror 7. The record supports the trial court’s f indings.

12 B ased o n h er j u ro r in f

o rm atio n card s , J u r o r 8 w a s tw en t y -f i v e , an d Ju ro r 9 w as f if ty -f iv e. 1 5¶27. We t h e r e f ore f i nd no m erit in HAS’s claim that i t is entitled to a new trial “[ a]s t h e record i n the case s ub judice does not reveal that the perem ptory strikes were used in such
a way as to violate the Batson rule.” Berry , 802 So. 2d at 1047.
II. Attorney ’ s Fees ¶28. F ollowing trial, the trial court ordered HAS to pay Hem phill $90,000 in attorney ’s f ees a nd expenses. F or the trial c ourt to award attorney ’s f ees in a breach-of

-contract action, the c ontract m

ust provide f

or them or there m

ust be a f inding of conduct so outrageous as to support an award of pu n itive dam ages. Sentinel Indus. Contracting Corp. v. Kim m ins Indus. Serv. Corp. , 743 So. 2d 954, 971 (Miss. 1999). ¶29. HAS acknowledges the subcontract entitled Hem p hill to recover attorney ’s f ees if it
p r evailed in a d ispute with HAS. 13 Still, HAS a rgues t he attorney ’s-f ees pro v i s i o n i s unenf orceable, as it entitled only H em phill to recover attorney ’ s f ees. But we have upheld one-sided provisions like this one. E.g., Upchurch Plum bing, Inc. v . Gre e n w ood Utils.
Com m ’ n , 964 So. 2d 1100, 1 1 14 (Miss. 20 0 7 )

. W h i l e HAS c ites several cases that f ound

e i t h er substantive or procedural u nconscionability due to a one-sided indem n ity or arbitrat i o n clause, each of those cases involved a clear contract of adhesion. See Caplin Enters., Inc.

v. Arrington , 145 So. 3 d 608, 614 (Miss. 2 014) (f inding p ay day -lending agreem ents containing arbitratio n c l a uses were substantively unconscionable contracts of adhesion);

13 S p e cif ically , p arag rap h 2 1 o f th e su b co n tract p ro v id ed : As the prevailing party in any d i s p u t e b etween the parties arising o ut of or related to this Subcontract or t he breach thereof , Cont r a c t o r shall be entitled to recover its r easonable attorney ’s f ees and expenses incurred in pursuing or def ending any

claim

. 1 6Covenant Health & Rehab. of P icayune, LP v. Estate of Moulds ex rel. Braddock , 14 So. 3d 695, 699 (Miss. 2009) (em phasizing “[ t]his Court twice bef o re has f o und the adm issions
agreem ent at i ssue in this case to be a contract of adhesion”); Entergy Miss., Inc. v. Burdette
Gin Co. , 726 S o. 2 d 1 2 02, 1 207 (Miss. 1998) (f inding custom er-service agreem ent containing i ndem n i ty clause was a contract of adhesion, because E n t e r g y w as only energy provider in the area and ref used to negotiate agreem ents with its custom ers). ¶30. By contrast, the subcontra c t b e tween H AS and Hem phill w a s not a contract of adhesion. Instead, it w as a c ontra c t b e tween two b usinesses that had w orked together

m ultiple tim es on large-scale construction projects. As we have held, to enf orce a contract “without enf

orcing the clause address ing attorney f ees would b e contrary t o the law.”
Theobald v. Nosser , 752 S o. 2d 1036, 1042 (Miss. 1999). Here, the trial c ourt f o u nd the subcontract was enf

orceable. So the attorney ’s-f ees provision also was enf orceable. ¶31. Alternatively , HAS argues the attorney ’s-f ee provision doe s n ot apply based on the
f acts. Since the jury awarded Hem phill z ero m oney

dam ages, HAS reasons Hem phill was

not “the prevailing p a rty .” But the attorney ’s-f ees provision d i d n o t c ondition Hem phill’s right to attorney ’s f

ees on its recovery of m oney dam ages. Hem phill m erely had to be “the prevailing party .” And in H AS’s suit against Hem phill f or m ore than a half

-m illion dollars
in dam ages, Hem

phill clearly prevailed. The jury specif ically f ound i n f avor of Hem

phill on all o f HAS’s claim s. Thus, u n der the plain l a n g uage of the subcontract, Hem phill was “entitled to recover its reasonable attorney ’ s f e es a nd e xpenses i ncurred in

. . . defending

. . . [ HAS’s] claim .” See a ls o A s pired C ustom Hom es, LLC v. Melton , 72 So. 3d 540, 551

1 7(Miss. C t. App. 2011) (enf orcing contractual attorney ’s-f ees provision in f

avor of s uccessf

ul def endants in breach-of

-contract action). ¶32. W h ile a closer question, we f ind H e mp h i l l also was the “prevailing party ” in its counterclaim against HAS – and thus i s “entitled to reasonable attorney ’s f ees and expenses incurred in p ursuing

. . . [ i t s ] c laim s.” As with HAS’s c laim s , t he jury expressly f ound in
f avor of Hem

p h ill on Hem

phill’s counterclaim f

or breach of cont r a c t

. Wh i le the jury awarded zero dam ages, a s w e recently clarif ied, m oney d am ages are not an elem ent of a breach-of -contract c laim

—rather, th e y a r e o n e ty pe of rem edy

. Bus. Com m c ’ns, Inc. v. Banks , 9 0 So. 3d 1221, 1225 (Miss. 2012), overruling Warwick v. Matheney , 6 0 3 S o . 2d 330, 336 (Miss. 1992). By expressly f inding in f

a v o r o f H e m

phill o n its counterclaim f or breach of contract, the j ury necessarily f ound H em

phill proved by a preponderance that HAS had breached the contract. ¶33. W i th n o d a mages awarded, Hem phill’s victory on its counterclaim a d m ittedly is hollow. But we agree with the United States Suprem e C ourt that the degree of a plaintif f ’s

success does not alter a party ’s e ligibility to recover attorney ’s f e e s—instead, it goes to the reasonableness o f the a ward. Farrar v . Hobby , 506 U.S. 103, 114, 113 S. Ct. 566, 574, 121
L. Ed. 2d 494 ( 1992) (interpret i n g “ p r evailing party ” language in a f ederal civil-rights statute). ¶34. To support i ts c ontention that the $90,000 award was unrea s o n a b le, HAS f irst reiterates the award was unreasonable because Hem phill was a w a r ded no m oney dam ages. But t his argum ent ignores the f act Hem phill had to def

end itself against HAS’s claim s that

1 8Hem

phill owed it m ore than $570,000 under the contract. So, even had Hem phill not asserted a counterclaim f

or m oney dam ages, Hem

phill still w ould have a ccrued signif icant attorney ’s f

ees and expenses during the course of the l itigation. According t o Hem phill, of its $105,506.72 in attorney ’ s f ees and expenses, $101,787.71 went toward d ef ending against
HAS’s claim s. T hus, we f ind it was reasonable f

or the trial court to award Hem phill alm ost all of the attorney ’s f

ees and expenses requested, even with no m oney judgm ent. ¶35. HAS also claim s the attorney ’s-f ees award w as u nreasonable because the $90,000
f igure was “plucked out of the air.” HAS pulls t his phrase f r om Y oung v. Huron Sm ith Oil
Co. , 56 4 S o . 2d 36, 40 (Miss. 1990), in which this C ourt f ound a f ee award o f $7,500 was

an abuse of discretion because the attorney testif ied he spent only twenty -nine hours on the

case and ty

pically charged $100 per hour. In other words, the evidence supported accruing $2,900 in f

ees—less than half the am ount a warded. But in c ontrast to Y oung , the trial court here ac t u a l ly awarded Hem p hill less than i t requested, not m ore. In its post-trial m otion,
Hem phill requested $105,506.72 total or, at a m inim um , $101,787.71 in def

ense-related f

ees

a n d expenses. And it backed this claim , u sing the “lodestar” m ethod of calculati n g f e e s ,

m ultiply ing the num

ber of hours its attorney s worked on the case with the attorney s ’ average hourly rates. See M

auck v. Colum bus Ho t

e l C o . , 741 So. 2d 2 59, 271 ( Miss. 1999) (explaining the “ lodestar” calculation). So, contrary to HAS’s assertion, the trial court did

not m erely pluck a f

igure f rom the air. Instead, it reviewed Hem phill’s e vidence and determ ined $90,000 was a reasonable am ount. ¶36. “It is well settled in this State that what constitutes a reasonable attorney ’s f ee rests

1 9within the sound discretion o f the trial court[ .]” I d. at 2 69. And here, b ased on the record, we do not f

i nd the $90,000 award to be an abuse of discretion.
CONCLUSION ¶37. Because HAS is not entitled to a new trial b ased on H em phill’s use of perem

ptory strikes, we af

f irm the judgm ent in He mp h i l l ’s f avor on all claim s. And because H em phill

was “the prevailing party ” entitled to attorney ’s f ees under the subcontract, we also af f irm the post-trial order that HAS pay Hem phill $90,000 in attorney ’s f ees and expenses. ¶38. AFFIRMED. WALLER, C.J., COLEMAN, MAX WELL, B EAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, J., DISSENTS W ITH S EPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J. KING, JUSTICE, DISSENTING: ¶39. On June 2 , 2016, a m ajority of this C ourt af f irm ed the trial court’s actions regarding the perem ptory challenge to Juror Num ber 13, and r em anded with instructions regarding the
perem ptory challenge to Juror Num

ber 7. I dissented to that action and wrote: The a pproach t aken by the m ajority and concurring opinion w ould seem to be designed to lim it, rather than f ully e nf orce, the m andat e o f B a t s on . The m ajority ’s holding that, notwithstanding t he questionable circum s t ances surrounding the strikes of both Jurors 7 and 13, that each m u st be considered in a vacuum and that there was no error with r espect to J uror 13, at best def i es logic. At worst, it appears to be a self -f ulf i lling prophecy u

pon w hich to justif

y a f inding of no discrim inatory action. Accordingly , I d issent f rom the ma jority ’ s f i nding that the trial court did n ot e rr in conducting its Batson analy sis f or Juror 13 and would r equire the trial c o urt to consider Hem phill’s use of its perem ptory strikes in whole.
H.A.S. Elec. Contractors, Inc. v. Hem phill Constr. Co., Inc. , 2015-CA-00596-SCT, 2016
W L 3091754, at *9 (Miss. June 2, 2016).

2 0¶40. The trial court now has r etu r ned t he c ase t o this Court, a nd the m ajority , consistent

with its self

- f ulf illing prophecy , proc e eds t o f u lly af f irm the actions of the trial court. The

m anner in which this Court has handled this case is closely related to the pretext seen in the jury -selection process intended t o provide justif i cation f or inappropriate, or discrim inatory actions. Because I believe that 1 ) the m anner in which the m ajority h as handled this m atter is clos e l y a k in to being pretext; and 2) the m a jority errs, I again dissent as t o the Batson issue. 14 I take no issue with the m ajority ’s f inding on attorney ’ s f

ees. ¶41. On rem and, pursuant to this Court’s directive and lim itation, the trial judge conducted

a Batson hearing solely o n Juror 7. Hem phill attem

pted to explain its reaso ning f or its use of a perem ptory strike against Juror 7, stating: [ N]ot wanting an older j ury venire is n ot sim ply a num ber. The – the jurors, the two older white wom en, who we did n ot use strikes on, did n ot possess the sam e characteristics that [ J u r o r 7 ] d id, w hich is being – c arry ing those characteristics of b eing aged. In the dictionary it’s

– t he – the def inition of age is that – one of

the def initions of

age is being in an advanced stage of lif e. . .

. ¶42. Hem

p hill cited William s v. State , 909 So. 2d 1233 ( Miss. Ct. App. 2005), in which the C ourt of Appeals stated that “we can visualize som e i nstances w here age, a s a reason f or striking a y ounger venire m em ber, m ay be pretextual but not so f or an older v enire m em

ber because of the m a turity possessed, as well as t h e inf i rm i ties som etim es borne, by older
p e r s o n s . ” Id. a t 1237. H em phill likened its case to t he William s case a nd explained tha t , because it had a contracts-based case, it: needed jurors that could pay attention. W e needed juror s t h at could f ollow

14 Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). 2 1along, that could read the contract. This particular juror was e xhibiting these

characteristics. H e w asn’t – he did not seem t o f ollow a long. He did n ot seem to be with – our – our argum ents or discussions during voir dire. . . . ¶43. Having looked with great care at the record now bef ore the C ourt, I f

ind Hem phill’s stated justif

i cations f or the strike of Juror 7 dif f icult to credit. 15 Hem

phill struck Juror 7, sixty -three-y ear-old Don T ay lor, a n Af rican Am erican, f

r om the jury pool, citing age as its ju s t i f i c a tion. 16 Tay l or had retired f rom the Jackson Regional Of f i ce of the United States
D e partm ent of V eterans Af f airs (“the VA”), where he had been em p loy ed f or thirty -seven
y ears and had b e e n appointed a s the Division Chief o f Vocational a nd Rehabilitation and
Em ploy m ent Services. Tay lor a lso had com pleted a graduate-school degree. Yet Hem phill

now claim s that Tay lor just did not seem to be able to “f ollow along” with its argum ents or discussions. However, nothing in the r e co r d s u p p o r ts Hem phill’s contentions regarding Juror
7’s inability to “ f

ollow a l o n g . ” I n f

act, the record is suspiciously silent as to how Juror 7 carried his age. Hem

p hill, both at trial a n d on rem and, f a i l e d t o d e scribe a single characteristic or m annerism tha t J u r o r 7 supposedly portray e d to justif y its c o ntention that
Juror 7 could not understand a contracts case. If Hem phill had been concerned about Juror
7’s ability to f

ollow along, it c ould have used v o i r d i r e i n an attem p t to determ ine if its

15 L ik ew ise, I f

in d th e m aj o ri t y ’ s n o t i o n t h at H A S f ailed to arg u e b o th p retex t an d p u rp o sef u l d iscrim in atio n d i f

f icu l t to cred it. H A S m ig h t n o t h av e u ttered th e m ag ic w o rd s, y et c learly f

ro m co n t ex t it a rg u e d th at H e m p h ill’s u se o f p erem

p to ry strik e s w as im

p ro p er. C o u n sel f o r H A S accu rately arg u ed th at tw o C au c asian j u ro rs h ad b een accep ted p rev io u sly w h o w ere sim ilar in ag e to Ju ro r 7 , w h o w as A f rican A m erican

. 16 J u ro r 7 w as six ty -th ree y ears o ld at th e tim e th a t H em p h ill stru ck h im alleg ed ly b ecau se o f a g e. In ter e s t i n g l y , at least f o u r m em b ers o f th is C o u rt a r e o ld er th a n Ju ro r 7 ’s six ty -th ree y ears. A re w e to p resu m e th e ag es o f th o s e p articu l ar C o u rt m em b ers su f f icien t reaso n to d isq u alif

y th em f ro m j u d icial serv ice?

2 2concerns were well-f ounded. H em

phill did n ot voir dire Jur o r 7

. A n d Hem phill had no qualm s about accepting Juror 2 , a sixty -eight-y ear-old Caucasian f em ale whose highest level of education obtained had been a high-school diplom a. ¶44. Further m aking Hem phill’s given j ustif

ications suspect, at t he tim e H em phill struck
Juror 7 f o r age, Hem

p hill had in its possession the Juror Inf orm ation Form s that each juror had f illed o u t

. T hose f

orm s detailed Juror 7’s advanced education and work history

. Additionally , those Juror Inf orm ation Form s m ade Hem phill aware that two C aucasi a n j u rors of sim ilar age, but lesser education, were p rior to Juror 7. Had Hem phill n ot wanted an older jury , it w as not required to strike specif ically Juror 7. Hem

p hill additionally had been aware that a f ter J uror 7, only o ne of the f ollowing f

if teen potential jurors h ad been o ver f if ty -f ive
y ears old. Hence, I subm it that Hem phill’s acceptance of Juror 7 likely would not have turned the jury into “an older jury

venire.” ¶45. To justif

y i ts f ailure to ask a ny a ge-related questions during voir dire, Hem phill stated that it “could observe by looking and observing and did n o t n e e d to voir dire as to that characteristic.” H em

phill then went on to state that Juror 7 “actually carries with h im those traits of a n older p erson; not like m y boss who’s i n his

. . . u pper 6 0s and who s t ill runs 4

m iles a day and works 12 hours every day .” H em phill had no knowledge and no interest in determ ining what Juror 7’s ability was. Juror 7 m ay well have run f ive m iles every day , or walked f ive m iles every day

. I f

ind it hard to b elieve t hat a s i x t y -three-y ear-old retired Division Chief o f the VA who had obtained a graduate degree c ould not “f ollow along” with
Hem phill’s argu m ents. Especially in light of t he f act t hat Hem

phill had accepted a sixty

2 3eight-y ear-old, a f i f ty

- three-y ear-old, and a f if ty

- one-y ear-old whose h i g hest levels of education had been high-school diplom as. ¶46. Hem

p hill attem

pted to justif

y its strike of Juror 7 by stating that Juror 7 had carried “those characteristics of being aged.” I t t hen stated that Juror 7 did not seem to f o llow along.
Yet Hem phill of f ered no detail, stated no m annerism , listed no f act t o support the assertions that J uror 7 was aged and could not f o llow along. And while it is true that n onverbal cues are
not f ound in cold r ecor d s , an attorney m ust explain his use of a strike by stating those nonverbal cues, not by m erely asserting that the cues existed. 1 7 For e x a mp l e, the Suprem e Court i n H

ernandez v. N

ew Y o rk , f ound n o Batson violation where t he p rosecutor e xplained why he was uncertain that two potential jurors would be able to f ollow along:
Af ter petitioner raised h is B atson objection, the prosecutor did not w ait f or a ruling on w hether petitioner had established a prim a f aci e case of racial discrim ination. I nstead, the prosecutor volunteered his reasons f or striking the jurors in question. He explained:
“Your honor, m y reason f o r rejecting t h e - t h e s e two j urors - I’m not c ertain as to whether they ’re Hispanics. I didn’t notice how m any Hispanics had been called to the p a nel, b u t m y reason f or rejecting these two is I f eel very uncertain that they

would be able to listen and f ollow the interpreter.” Af ter an interruption by def ense counsel, the prosecutor continued:
“W e talked t o them f

o r a long tim e ; t he Court t alked t o them , I talked to them

. I believe that in their heart they will try t o f ollow i t, but I f

elt there was a great deal of uncertainty a s to whether they could accept the i nterpreter as the f i nal arbiter of what was said by each of the witnesses, especially where there were going to b e Spanish-speaking witnesses, and I didn’t f eel, when I asked them whether o r not they could accept the interpreter’s translation of it, I didn’t f eel

17 G reat d e f

eren ce is g iv e n to th e trial j u d g e’s f i n d i n g s o n w h eth er an atto rn ey cred ib ly relied o n d em ean o r. S

n yd e r v . L o u i s ia n a , 5 5 2 U .S

. 4 7 2 , 4 8 0 , 1 2 8 S

. C t. 1 2 0 3 , 1 2 1 0 , 1 7 0 L

. E d

. 2 d 1 7 5 (2 0 0 8 ). H o w ev er, w h en th e trial j u d g e su m m arily accep ts a p erem

p to ry strik e w i th o u t m ak in g a d eterm in atio n o n d em e an o r, th ere is n o d ef eren ce to g iv e. Id

. 2 4that they could. They each looked away f rom m e and s aid with som e hesitancy that they would try , not that they could, but that they would try t o f ol l ow the interpreter, and I f

eel that in a case where the interpreter will be f or t he m ain witnesses, they

would have an undue im pact upon the jury .” Hernandez v

. N e w Y o r k , 500 U.S. 352, 356–57, 111 S

. Ct. 1859, 1864–65, 1 14 L. Ed. 2d
395 (1991) (citation om itted). An attorney does n ot win his case b y stating that he has good

reasons. He m

u s t explain t h o s e reasons with e videntiary support. Here, Hem phill’s evidentiary

support is lacking. ¶47. T he m ajority d iscusses and block-quotes a l engthy portion of the t rial court’s attem pt
to explain its m istake in allowing HAS to g o f orward with its Batson c laim

. 1 8 The m ajority then correctly com es to the conclusion that, regardless, o nce the trial court required a raceneutral reason be given, it then was required to weigh that reason f o r possible pretext. The

m ajority then repeated itself , stating: “The trial court acknowledged that he acted upon the
prem ature insistence of HAS in re q u e s t i n g a n i m m ediate ruling on its Batson challenge. Judge Em f

inger acknowledged that he did not f ollow his c ustom ary practice of conducting

a hearing at the tim e the jury panel has been tendered.” As previously noted, the t rial court’s f ailure t o f

o llow the correct procedure is irrelevant an d t h e p u r pose of such a lengthy discussion can o n ly be to d i s t ract f r om the issue at hand. The i ssue being, that while
Hem phill did give a f

acially -race neutral reason f or the perem

p tory strike o f Juror 7, the trial

court rotely accepted that r eason a nd com pletely f ailed i n its responsibility to e nsure that all

18 T h e m aj o rity in itially states th at H A S ’s clien t , H arry S ch e p e n s, h ad b een stru g g lin g w i th m ed ical i ssu e s an d th at o n e j u ro r h ad stated th at h is co n d itio n s w o u l d cau se h er n o t to b e f air an d im p artial. I f ail t o see th e co rrelatio n b etw een S ch ep e n s’s m e d ical issu e s an d ag e, th e issu e th at is b ef

o re u s to d ay . 2 5discrim ination is elim i nated f r om the jury -selection process. The m ere f act that a reason is
f acially race-neutral does not m e an racial discrim ination has not been practiced. ¶48. I subm it that the m ajority m akes the sam e m i stake today in its attem pt to e xplain away and m as k t he issue of discrim ination by f o cusing on the contention that H em phill never should have been required to explain its r eason f or s triking Juror 7. The record shows that the t r i a l c o u rt did a sk f or a r ace-neutral reason and that it was required to consider
Hem phill’s prof

f ered reason no m a tter its previous m istake. “ D iscrim i nation in j ury selection

. . . causes h arm s to the litigants , t h e com m u nity , and the individual jurors who are wrongf ully excluded f

rom participation in the judicial process. . . .” J.E. B . v. Alabam a ex rel. T.B. , 511 U.S. 127, 140, 1 1 4 S. Ct. 1419, 128 L. Ed. 2d 89 (1994)). Such errors cast doubt on the i ntegrity of the judicial process. Id. W e m ust do a ll we can to el i mi n a t e discrim inatory practices f rom jury selection, f

o r “by enf orcing a discrim i natory perem ptory challenge, the court ‘has not only m ade itself a pa r t y t o t h e [ b i ased a ct], but has elected to pla c e its power, property and prestige behind t he [ a lleged] discrim ination.’” Edm onson v. Leesville Concrete Co. , 500 U.S. 614, 624, 111 S

. Ct. 2077, 2085, 114 L. Ed. 2d 660 (1991). ¶49. At this point, I again voice m y concerns over the m ajority ’ s d e c i s i o n t o lim it the
Batson hearing to J uror 7 and t o e x c lude review of Hem phill’s u se of a perem

ptory strike against Juror 1 3. “[ P]erem ptory challenges c onstitute a j ury selection practice that perm its those to discrim i nate who are o f a m ind to discrim inate.” Batson v . Kentucky , 476 U.S. 79, 96, 106 S. Ct. 1 712, 1723, 90 L. Ed. 2d 69 ( 1986). “Exclusion of black citizens f rom service

as jurors constitutes a prim ary exam ple o f t he evil t he Fourteenth Am endm ent was designed

2 6to cure.” Id. at 1716. The p u r p ose of rem a nding this case f or a Batson hearing was to determ ine whether Hem

phill ha d e n g aged in the purposef ul or deliberate exclusion of a potential jury

m em ber on account of

race in violation of

the Equal Protection Clause. ¶50. B e c a u s e review of the u se of perem ptory s trikes is such a f

act-intensive inquir y , I believe that consideration of the strikes as a whole i s the only way to f u lly a nd f airly evaluate whether unlawf

u l discrim ination has occurred. The United States Suprem e C ourt has f ound that in reviewing t h e u s e o f perem ptory strikes, the s trikes m ust be considered as a whole, reiterating in Snyder that:
In Miller–El v. Dretke , the Co u r t ma d e it clear that in c onsidering a B atson objec t i o n , or in reviewing a ruling claim ed to be B atson error, all of the circum stances that bear u pon the issue of racial anim o sity m ust be consulted. 545 U.S. at 239, 125 S. Ct. 2317. Here, a s j u s t one exam ple, if there were persisting d oubts as to the outcom e , a court would be required to consider the strike of M s. Scott f

or the bearing it m i ght have upon t he strike of M r. Brooks. In t his case, however, the explanation given f or the strike of Mr. Brooks is by itself unconvincing and suf f ices f or the determ ination that the r e w as B atson error. Snyder v. Louisiana , 552 U.S. 472, 478, 128 S. Ct. 1203, 1208, 170 L. Ed. 2d 175 (2008). ¶51. The application of the cum ulative-error d octrine is n ot new to this Court either. 19 This

19 S ingling out each use of a perem ptory strike without consideration of the strikes as a whole results in a specious evaluation of a Batson violation. The trial court should c aref ully consider all relevant circum stances, including the strength of the evidence which initially raised the inf erence and especially the nature of the prosecutor’s explanations viewed in toto.

. . . The m ore subjective the ex p l a n a t i on and the m ore tenuously related to juror bias or qualif icati o n , t h e m o re suspect is the prosecutor’s entire scheme of jury selection

. T h

u s, i n m aking the ultim ate determ i nation of whether the def endant has proved racial d iscrim ination, the trial court should c onsider the sum quality of all the prosecutor’s proffered explanations

.
2 7Court previously has em phasized the im

portance of

reviewing perem

ptory strikes in toto:
W h ile e ach individual strike m a y have justif iably appeared to the trial court to be suf f iciently race neutral, the trial court a lso has a duty to look at the S tate’s use of perem

ptory challenges in toto. See Miller-El , 1 25 S. Ct. at 2331 (the ruling in Batson “requires the judge to a ssess t he p lausibility of that reason in light of all evidence with a bearing on it.”); Stewart v. State , 662 So. 2d 552, 559 (Miss.1995) ( “the trial court m ust c onsider all the relevant circum stances, such as the way prior perem ptory strikes have b een used and the nature of the questions posed on v o i r d i re.”); Lewis v. Lewis , 321 F.3d 824, 831 (9th Cir. 2003) ( “Af

t er analy zing each of the prosecu t o r ’ s prof f ered reasons, o ur precedent suggests that the court should t he [ sic] step b ack and evaluate all of the reasons together.”) (Em phasis added).
Flowers v. State , 947 So. 2d 910, 937 (Miss. 2007); cf. Lom ax v. S tate , 192 So. 3d 975, 977 (Miss. 2016) (“W e f

ind cum ulative error occurred at trial that deprived Lom ax of the right

to a f air trial.”). In m aking the ultim ate determ ination of whether the def endant has proven intentional racial discrim i nation, the trial court m ust look at the collective use of perem ptory strikes. 20 Segregating each strike f or indivi d u a l c o n s i d e r a t i o n , as t he m ajority has done, def ies logic and sound reasoning and does little to elim inate u nlawf ul racial discrim ination f

rom the jury -selection process. No harm would result f rom the com

prehensive review of perem ptory strikes, and I subm it that the only benef it b estowed f

rom this Court’s d ecision to lim it review

Brian J. Serr, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of A Delicate Balance , 79 J. Crim . L. & Crim inology 1, 64 (1988) (em

phasis added).

20 S ee a lso Greer v. State , 310 S.W .3d 11, 19 (Tex. App.-Dallas 2009) (“If the reason given f or striking a single m inority venirem em ber is suf f i ciently unconvincing, t he striking of that venirem em

ber s u f f i c e s t o s how Batson error. Id. But the reviewing court m ay also consider the strikes of m ore than one juror together i f t h e o utcom e is o therwise questionable.”); B ed

fo r d v. S ta t e , 5 4 8 S o . 2 d 1 0 9 7 , 1 0 9 8 ( A la. C rim

. A p p . 1 9 8 9 ) (citatio n s o m itted ) (“A n y i n f

e ren c es arisin g f

ro m th e u se o f p e rem

p to ry strik e s to rem o v e b lack s sh o u ld b e v iew ed to g eth er ‘ w ith o th er rel e v an t circu m stan ces’ to d eterm in e w h eth er p u rp o sef u l d iscrim i n atio n h as o ccu rred .”). 2 8is to those who have a m ind to discrim inate, and the m ajor ity ’s decision allows and

encourages them

to continue to do so. ¶52. In sum m a ry , the Batson Court stated that, “in v iew o f t he heterogeneous population of our N ation, public respect f or our . . . justice sy s t em and the rule of law will be strengthened if we ensure that no citizen is disqualif ied f rom jury service b e c a u s e o f his
race.” Batson , 476 U .S. at 99. In order to be sure that no citizen was disqualif i ed f rom jury service based on h is r ace, challenged perem ptory strikes m

ust be considered as a whole. As this Court previously h a s acknowledged, the t rial judge conducted an im proper initial Batson hearing and cut short his analy sis due t o h i s erroneous pattern b elief

. But the m ajority has deliber a t e l y d e nied the trial court the opportunity during the second h earing to correctly conduct a Batson hearing and consider both strikes together. ¶53. W h en counsel f

or H.A.S. stated that h e would n ot accept Hem phill’s g iven reason f

or striking Juror 13 as race-neutral, the trial court g ave H .A.S. no opportunity to explain why

. The trial court sim

ply stated, “All right. I do.” T he trial court m ade this ruling even though it adm i ttedly had no knowle d g e of the c a se and thus, could not have known whether

tem porary or part-tim e e m

ploy m ent would have created a bias toward Hem phill. The

m ajority n ow perf

orm s the sam e superf

icial analy sis to conclude tha t H e m phill’s stated

reason had n ot been p retextual. Had the m ajority allowed the trial c ourt to c o n d u c t a f ull
Batson hearing, H

. A .S. would h ave had the opportunity to rebut Hem phill’s assertion that it had e xcluded Juror 13 because h e had listed his place of em p loy m ent as Labor Ready and to inquire into why

Hem p hill had not asked on voir dire whether any of the other potential

2 9jurors had been tem porarily e mp l o y ed or whether they had w orked part-tim e in order to determ ine whether o thers m i ght have had the sam e potential f or bias. Instead, the m ajority ’s previous holding prevented any analy sis into whether Hem p hill’s strikes of J u r o r 13 and Juror 7 together had shown pretext f or discrim ination. ¶54. W h ile the trial judge again f ound that Hem

p hill’s use o f its perem

ptory strike against
Juror 7 was not pretextual, I disagree in light o f Hem phill’s attem

pted j u s t if

ications at the
Batson hearing on r em and. Furtherm ore, I believe that the trial court could not have m ade

a f ully educated decision on whether Hem phill engaged in purposef

ul d iscrim ination without review of Hem

phill’s u s e of perem

ptory s t rikes in toto. How the m ajority believes that
lim itin g r e v i e w o f perem ptory strikes as a whole f ulf i lls its duty to elim inate purposef ul discrim ination in the jury -selection process def ies com prehension. ¶55. I n its zeal to justif y its self -f ulf illing prophecy of nondiscrim ination, the ma j o r i t y dem onstrates a p rof

ound lack of understanding of t he consideration of perem ptory strikes as

a w hole as set f

o rth in Snyder a nd in thi s dissent. That prof ound l ack o f understanding is display ed in the m ajority ’s f ootnote 3 and in its paragraph 20. The m a jority inf ers t hat so long

as the trial c o u r t l o o k e d a t Juror 7, it considered the strikes as a whole. Even a cursory reading of Snyder shows the m ajority ’s lack of understanding. Snyder clearly requires that each strike be considered with every other strike:
In Miller–El v. Dretke , the Court m ade it clear that in consid e r i n g a B atson objection, or i n reviewing a ruling claim ed to b e B a t s on error, all of the circum stances that bear upon the issue of r acial anim osity m ust be consulted. 545 U.S. a t 2 3 9 , 125 S. Ct. 2317. Here, as j ust one exam ple, if there were persisting d oubts as to the outcom e, a court w ould be required to consider the strike of M s. Scott f

or the bearing it m ight have upon the strike of Mr. Brooks.

3 0In t his case, however, the explanation g iven f o r the strike of Mr. Brooks is by itself unconvincing and suf f ices f or the determ ination that t h e re was B atson error. Snyder v. Louisiana , 552 U.S. a t 478, 1 28 S. Ct. a t 1208. This Court lim ited the abili ty of the trial court to consider the strike of Juror 1 3 f or the bearing it m ight have upon the strike of Juror 7. ¶56. This f

act is m ade abundantly clear in paragraph 26 of this C o urt’s o pinion of June 2, 2016, wherein it stated:
Because the trial c ourt d id not err in its Batson a naly sis of Juror 13, we do not disturb the trial court’s determ ination that the strike o f Juror 13 was nondiscrim inatory . W e rem and the question of striking Juror 7 only

. H.A.S. Elec. Contractors, Inc. v. H em p h ill Const. Co. , N o. 2015-CA-00596-SCT, 2016 W L 3091754, at *5 (Miss. June 2, 2016). This f a ct also is m ade abundantly clear by the m ajority ’s f ootnote 2, wherein it s tates, “Any argum ent raising the issue of Juror 13 is barred by res judicata and needs no f

urther discussion.” ¶57. The m ajority w rites that Hem phill achieved an age - b a l a n c e d jury p anel. However,
Hem phill did not argue that it s truck J uror 7 to achieve a n age-balanced jury p anel. H em phill stated its desire to have jurors who could f ollow along and could read the contract. There is nothi n g i n t h e r e cord to suggest that Juror 7 w as i lliterate a nd could not read the contract. Indeed, just t h e o p p o s i t e is true. Nor is there any suggestion by Hem p hill of any action or inaction on the part of

Juror 7 which would call into question his ability to f ollow along. ¶58. The stated reason of H em phill f or striking venirem an 7 was absurd. The trial court’s
f i n ding of no pretext and no d iscrim ination was absurd. This Court’s a f f irm ance of thes e

3 1absurd actions is equally absurd. ¶59. Perem

ptory strikes that run skin-deep cannot be the f uture of this country , as they have
in the past. Theref

ore, I dissent, not only f

rom t he m ajority ’s d ec i s i o n t o f u l ly af f irm the actions of the trial court, but also f rom i ts d ecision to l im it revie w o f H e mp h i ll’s use of
perem ptory strikes to Juror 7. I would reverse and rem and this case f or a new trial. KITCHENS, P.J., JOINS THIS OPINION.

3 2