IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-KA-00521-SCT

ARMON ANDRE RANDALL

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 03/21/96

TRIAL JUDGE: HON. JERRY OWEN TERRY, SR.

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JAMES L. DAVIS, III

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: CONO CARANNA

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 6/11/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 7/2/98

BEFORE PRATHER, C.J., SMITH AND WALLER, JJ.

WALLER, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. Armon Andre Randall was convicted of capital murder and armed robbery. Randall received a

sentence of life without parole for capital murder and forty years for the armed robbery charge. On

appeal to this Court, Randall argues that the court below improperly prevented him from exercising a

peremptory challenge on juror Allen Perkins; and, that it was error for the lower court to refuse a

requested lesser included offense instruction on manslaughter. Finding no merit in either argument,

we affirm.

FACTS AND PROCEDURAL HISTORY.

¶2. Mr. Tim Bui and his wife, Kim Che Le, owned and operated Tim's Auto Service in Biloxi. On

May 12, 1994, they both closed up shop and left for their home around 7:15 p.m. Unbeknownst to

the couple, they were followed by a car carrying Armon Randall and his confederates, Chris Payne,

Rose Mary Henderson, and Jamie Sue Skinner.
¶3. Earlier, Randall and Payne had discussed performing a robbery as a means of earning some quick

cash. Each was armed, Armon Randall with a .32 revolver, and Chris Payne with a .380 auto.

Although well armed, the two needed a car. So, the two fell in with Skinner and Henderson and left

in Henderson's blue Camaro. The four drove around for awhile and then noticed the victims either

closing down their shop or stopping at a stoplight.

¶4. They followed the victims back to Gulfport. Payne and Randall got out of the car and made a

bungling attempt to rob the couple, while Jones and Skinner made the block. Payne struck Mr. Bui in

the head with his pistol; but, Randall panicked when he saw Mrs. Le move around in her seat and

shot her in the neck. Payne and Randall then fled the scene on foot, making away with a bag of

cucumbers. Mrs. Le bled to death in her driveway.

¶5. The police initially had no leads in this case, but as circumstance would have it, Payne had

allegedly committed a prior armed robbery in the company of one Chris Henderson. Chris

Henderson, picked up in relation to this other crime, related that he had overheard Chris Payne and

Armon Randall discussing "doing" an armed robbery. The investigating officer contacted Detective

Guinn, assigned to the instant case, who, based on his interview with Chris Henderson, obtained a

search warrant for Chris Payne's house. The police recovered numerous weapons, including a .380

automatic, and Chris Payne was subsequently arrested.

¶6. At the station, Chris Payne gave a statement resulting in arrest warrants being issued for himself,

Armon Randall, Jamie Sue Skinner, and Rose Mary Henderson. Armon Randall was arrested and the

grand jury subsequently returned an indictment against Randall for capital murder and armed robbery.

Armon's trial spanned three days and ultimately the jury returned guilty verdicts on both counts,

sentencing Armon Randall to prison for life without parole for the capital murder of Kim Che Le, and

40 years for the armed robbery of Tim Bui.

¶7. From this conviction, Armon Randall filed timely notice of appeal, raising the following issues for

this Court's consideration:

I. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENDANT

TO USE HIS PEREMPTORY CHALLENGE ON JUROR ALLEN PERKINS.

II. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING A LESSER

INCLUDED OFFENSE INSTRUCTION.

DISCUSSION

I. DID THE LOWER COURT ERR IN PREVENTING RANDALL FROM

EXERCISING A PEREMPTORY CHALLENGE AGAINST JUROR ALLEN

PERKINS?

¶8. The availability of peremptory challenges is not a matter of constitutional right; but, it is well

established that the exercise of such challenges, when made available, must be constitutional. The

wellspring of current jurisprudence on this question is Batson v. Kentucky in which the Supreme

Court held that a juror may not be struck by the prosecution in a criminal case simply because she is

black. Batson v. Kentucky, 476 U.S. 79 (1986). Batson protection has since been extended to civil
trials, to strikes exercised by the defense, and to discriminatory strikes based on gender. See

Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631, (1991) (Batson extended to civil context);

Georgia v. McCollum, 505 U.S. 42, 59, (1992) (extending Batson to strikes exercised by criminal

defendant); J.E.B. v. Alabama, 511 U.S. 127, 141(1994)(applying Batson to gender).

¶9. The Supreme Court recently outlined the Batson test in Hernandez v. New York as follows(1):

First, the [opponent of the strike] must make a prima facie showing that the [proponent] has

exercised peremptory challenges on the basis of race. Second, if the requisite showing has been

made, the burden shifts to the [proponent] to articulate a race-neutral explanation for striking

the jurors in question. Finally, the trial court must determine whether the [opponent] has carried

his burden of proving purposeful discrimination.

Hernandez v. New York, 500 U.S. 352, 358-59 (1991)(Plurality opinion)(citations omitted). The

Batson test has spawned an enormous amount of legal commentary and judicial opinion, and thus it

is helpful to consider each prong separately.

A. The Prima Facie Case

¶10. Traditionally a prima facie showing of discrimination required that the opponent of the strike

show,

1. That he is a member of a "cognizable racial group";

2. That the proponent has exercised peremptory challenges toward the elimination of veniremen

of his race; and

3. That facts and circumstances raised an inference that the proponent used his peremptory

challenges for the purpose of striking minorities.

Batson, 476 U.S. at 96. (citing Castaneda v. Partida, 430 U.S. 482, 494 (1977)).

¶11. This test, however, has been modified somewhat by the Supreme Court's decision in Powers v.

Ohio, 499 U.S. 400 (1991). In that case the Supreme Court held that Powers, a white, had standing

to challenge the exclusion of black jurors on the grounds that the equal protection right of the juror

to serve was protected by Batson. Powers, 499 U.S. at 406. Essentially, this means that step three

above becomes the pivotal inquiry to determine a prima facie case, as this Court recognized in Davis

v. State, 660 So. 2d 1228, 1240 (Miss. 1995), cert. denied, 116 S.Ct. 1684 (1996). Specifically, the

pivotal question is whether the opponent of the strike has met the burden of showing that 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." Batson, 476 U.S. at 94.

¶12. This Court has examined the number of strikes on a particular class, the ultimate ethnic or

gender makeup of the jury, the nature of questions asked during the voir dire, and the overall

demeanor of the attorney. See Coleman v. State, 697 So. 2d 777, 786 (Miss. 1997); Davis, 660 So.

2d at 1263 (Banks, J., concurring); Mack v. State, 650 So. 2d 1289, 1299 (Miss. 1994), cert. denied,

116 S.Ct. 214 (1995). Additionally, "[t]he [opponent of the strike] may also rely on the fact that

peremptory challenges constitute a jury selection practice that permits those to discriminate who are
of a mind to discriminate." Batson, 476 U.S. at 80, 106 S.Ct. at 1714; Simon v. State, 688 So. 2d

791, 808 (Miss.), cert. denied, 117 S.Ct. 2524 (1997); Harper v. State, 635 So. 2d 864, 868 (Miss.

1994).

¶13. Obviously, such a fact intensive inquiry gives rise to a highly deferential standard of review, as

both this Court and the Supreme Court have recognized. Batson, 476 U.S. at 98 n.21, Collins v.

State, 691 So. 2d 918, 926 (Miss.), reh'g denied 693 So. 2d 384, cert. denied, 118 S.Ct. 198,(1997);

Davis, 660 So. 2d at 1242.

¶14. Turning to the facts of the instant case it is clear that the state satisfies step one of Batson. The

State noted after strike D-3 the pattern of striking males from the jury, and the learned trial judge

appropriately examined the record for a pattern of strikes and made the determination that a prima

facie case of gender discrimination had been established:

MR. MARTIN: The State would make a general objection, Your Honor, to the defense

strikes, to the pattern of strikes on the white males.

THE COURT: I'm looking back here to see which ones have been accepted.

MR. DAVIS: I'll go ahead, Judge. I've accepted some white males.

THE COURT: Well, I don't see any.

MR. DAVIS: Peter Sheely.

THE COURT: You did accept Mr. Sheely. All right. With a word of caution, the next white

male that is struck I will require you to give a race neutral -- not a race neutral, but a gender

neutral reason, okay.

What do you say as to Sandra Ladner, State?

MR. MARTIN: Accept.

THE COURT: I take it that gender neutral reasons fall into the same category, there must be

an established pattern. One has been accepted.

Defense, what do you say as to William Coleman?

MR. DAVIS: That would be D-4.

THE COURT: Okay. Give me a gender neutral reason then.

¶15. In light of the deference accorded factual findings, it is clear that the judge acted well within his

discretion in determining that a prima facie case of discrimination existed.

B. Gender Neutral Explanations

¶16. Step two of the Batson test requires that the proponent of the strike provide race or gender

neutral reasons for the strike. Batson, 476 U.S. at 97. The Supreme Court has made clear that for the

purposes of step two of Batson, any reason which is not facially violative of equal protection will
suffice:

The second step of this process does not demand an explanation that is persuasive, or even

plausible. "At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's

explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason

offered will be deemed race neutral."

The Court of Appeals erred by combining Batson's second and third steps into one, requiring

that the justification tendered at the second step be not just neutral but also at least minimally

persuasive, i.e., a "plausible" basis for believing that "the person's ability to perform his or her

duties as a juror" will be affected. It is not until the third step that the persuasiveness of the

justification becomes relevant--the step in which the trial court determines whether the

opponent of the strike has carried his burden of proving purposeful discrimination.

Purkett v. Elem, 514 U.S. 765, 767-68, (1995) (brackets in the original) (citations omitted).

¶17. Examining the instant case, it is clear that Randall gave sufficiently race neutral reasons for

striking juror Allen Perkins for the purposes of Batson step two. Specifically, Randall averred several

reasons for the strike:

MR. DAVIS: He remembers the case from TV on when it happened.

THE COURT: When it happened?

* * * *

MR. DAVIS: He's also retired, and he's 52-years old, Judge. And on his card he could barely

write real well when he filled out his card.

¶18. Under Purkett, none of these reasons are facially violative of equal protection, and thus they

pass Batson step two. A facially neutral reason at step two however, is not always a non-pre-textual

one for step three.

¶19. As Purkett makes clear, simply passing step two is perhaps the easiest burden in the entire

Batson test, as Randall's counsel noted when he stated that his reasons could be "fanciful". The

difficult question, however, is not whether the proponent of the strike can present a reason which is

not facially racist or sexist, but whether the proffered reason will ultimately prove to be pre-textual.

C. Pretext

¶20. The last prong of Batson requires the trial court to determine if the opponent of the strike has

carried his overall burden of proving purposeful discrimination. In large part such a determination

often rests on whether the proponent of the strike's proffered race or gender neutral reasons are pretextual. At this stage, silly or fanciful reasons given at stage two will be examined; and, as the

Supreme Court stated in Purkett, "[a]t [this] stage, implausible or fantastic justifications [given at

step two] may (and probably will) be found to be pretexts for purposeful discrimination." Purkett,

514 U.S. at 768.

¶21. Determination of pretext at stage three hinges on a host of case specific factual findings which
are similar to those employed at step one: the extent and nature of voir dire on the grounds upon

which the strike is being exercised;(2) the relation between the reasons for the strike and the facts of

the case;(3) the demeanor of the attorney and the prospective juror;(4) and, disparate impact upon a

minority or gender class.(5)

¶22. Additionally, this Court has recognized that the relative strength of the prima facie case of

purposeful discrimination established at step one will often directly color the inquiry into whether any

given reason is mere pretext, "The stronger the prima facie case, the more cogent the explanations

from the state and supporting evidence must be and vice versa." Mack, 650 So. 2d at 1298.

¶23. Just as in step one, these fall squarely within the bailiwick and expertise of the trial court judge,

who will not be reversed except upon a showing of clear error. Batson, 476 U.S. at 98 n.21; Collins,

691 So. 2d at 926; Davis, 660 So. 2d at 1242.

¶24. Turning to the record in the instant case, it is clear that the trial judge did not disqualify Randall

on the grounds that his proffered reason was not facially neutral, but rather denied the strike on the

grounds that the evidence as a whole demonstrated the pre-textual nature of Randall's offered

reasons.

THE COURT: As has been pointed out by the State, this has been repeatedly given as the

same reasons. Once again, this is a subjective matter for the Court to pass on. I think Mr.

Perkins -- your strike will be declined. You have Mr. Perkins as juror number 12. You want to

take exceptions to that?

MR. DAVIS: Judge, I guess we just have to because we have our peremptory challenges and

we have a right to use them. Also, the United States Supreme Court said in connection with

Batson challenges, and these are reverse Batsons, that our reasons for striking can even be

fanciful or silly. Our reasons for striking these people can -- our U.S. Supreme Court did, in fact

backing up prosecutors, Batson strikes, that their reasons, like I say, can even be silly as

acceptable.

¶25. Randall had given the age of the prospective juror as a reason previously, and had also seated a

female juror, Renee Rose, who had also seen pre-trial publicity. Furthermore, Randall had to this

point, exercised 9 of 10 peremptory strikes against males. Ultimately, the seated jury was composed

of 9 women and 3 men. Additionally, Randall's contention that Allen Perkins' penmanship was bad

would be a reason totally unrelated to the facts of the particular case. In other words, the trial court

judge had and examined ample evidence to support his finding that Randall's reasons for striking

Allen Perkins were pre-textual.

¶26. Notwithstanding that Randall's proffered reasons could, under Purkett, be highly redundant or

even silly, the judge was well within his discretion to determine that the reasons were pre-textual at

step three.

¶27. Randall, however, contends that the trial judge simply rejected his gender neutral explanation at

step two, without inquiring as to whether the State had met its overall burden at step three. This is an

exceedingly fine hair to split.
¶28. It is of philosophical interest only to debate at which point the trial judge quit accepting the

proffered reason for step two purposes and started rejecting it for step three purposes. But in this

Court's opinion, it is at least clear that the court below considered both the nature of the prima facie

case of discrimination and the relative weight of the proffered explanation in light of the

circumstances of the case and then determined that it was pretextual.

¶29. This is not a case as in Purkett where the trial judge simply rejected the proffered explanation as

illogical on its face, rather he accepted it, and then evaluated it in light of the relevant circumstances

of the case and in accordance with step three of Batson. Thus, Randall's contention that he was

erroneously denied a peremptory strike against juror Allen Perkins is without merit.

II. DID THE TRIAL COURT ERR IN REFUSING A LESSER INCLUDED

MANSLAUGHTER INSTRUCTION?

¶30. In his second assignment of error, Randall contends that the trial court erred in refusing to grant

one or more lesser included offense instructions that he offered. Randall offered the following

proposed instructions, all of which were denied. Proposed instruction DG-9 was a simple murder

instruction; DG-10 was a manslaughter instruction; DG-11 included both simple murder and

manslaughter; DG-12 was an armed robbery instruction; DG-13 was a combined murder,

manslaughter instruction; and, DG-14 was a manslaughter instruction.

¶31. Randall's contention regarding these instructions is threefold. First, he argues that the evidence

before the lower court of the robbery was weak, and that, therefore, the jury could have disbelieved

the robbery element, reducing the capital charge to simple murder or manslaughter. Second, Randall

contends that the evidence of who actually shot Kim Che Le was weak, and the jury could have

believed that Chris Payne did the shooting, making Randall an accessory. Finally, Randall argues that

the jury should have been instructed on the lesser included offense of armed robbery.

¶32. A lesser included instruction was not appropriate. First, Miss. Code Ann. § 97-1-3 (1994)

provides that even if the jury had disbelieved that Randall was the shooter, he could still be found

guilty of capital murder: "[e]very person who shall be an accessory to any felony, before the fact,

shall be deemed and considered a principal, and shall be indicted and punished as such; and this

whether the principal have been previously convicted or not." Thus, it is largely irrelevant who did

the shooting.(6) Randall would still be charged with capital murder unless the jury chose to disbelieve

entirely that the two were engaged in the commission of armed robbery. State v. Peoples, 481 So. 2d

1069, 1070 (Miss. 1986).

¶33. Turning now to the argument that the jury could have disbelieved that a robbery was taking

place and thus found only manslaughter or simple murder, this Court has recently stated the rule

regarding the submission of lesser included offense instructions: "Where the jury could, based on the

evidence presented find [the defendant] not guilty of the crime charged, but guilty of the lesser

included offense, a lesser included offense instruction is warranted." Evans v. State, No. 93-DP01173-SCT, 94-CA- 00176-SCT, 1997 WL 562044, at *45 (Miss. Sept. 11,1997). Stated somewhat

differently,

[a] lesser-included offense instruction should be granted unless the trial judge and ultimately this

Court can say, taking the evidence in the light most favorable to the accused and considering all
the reasonable inferences which may be drawn in favor of the accused from the evidence, that

no reasonable jury could find the defendant guilty of a lesser-included offense (conversely, not

guilty of at least one essential element of the principal charge)

Ballenger v. State, 667 So. 2d 1242, 1255 (Miss. 1995)(quoting Conner v. State, 632 So.2d 1239,

1254 (Miss. 1993)). cert. denied, 116 S.Ct. 2565 (1996).

¶34. In this case, Kim Le Che is dead. The unrefuted testimony is that Payne and Randall were going

to rob her and her husband. Applying the above test, it is clear that no rational jury could find Randall

guilty of the lesser included offense of simple murder or manslaughter and not guilty of capital

murder. Miss. Code Ann. § 97-3-19 (2)(e)(1994) defines as capital murder, any murder "[w]hen done

with or without any design to effect death, by any person engaged in the commission of . . . robbery .

. . or in any attempt to commit such felon[y]."

¶35. Here, there is simply nothing to indicate that Kim Che Le was killed in any context but an armed

robbery. Chris Payne testified that Randall and he discussed making some quick cash in a robbery.

They were both armed. Corwin Williams testified to the following,

A. He [Randall] said he shot the Yang. He thought he shot her in the face but he shot her in the

neck. And he said Chris hit the man across the head.

Q. When you say Yang, what do you mean?

A. Vietnamese.

Q. Did he use the word Yang?

A. Yeah.

Q. Okay. Did he tell you anything about what they took?

A. Yeah. He said they had grabbed a bag from under the seat, and it was a bag of cucumbers.

Notably, Randall submitted no alternative theory whatsoever as to why he was in Tim Bui's driveway

that night. The only evidence presented by both the State and Randall pointed to an armed robbery,

albeit an incompetent one. This Court has often and consistently stated that there must be an

evidentiary basis for lesser included instructions. Harveston v. State, 493 So. 2d 365, 375 (Miss.

1986); Fairchild v. State, 459 So. 2d 793, 800 (Miss. 1984); Colburn v. State, 431 So. 2d 1111,

1114 (Miss. 1983); Johnson v. State, 416 So. 2d 383, 388 (Miss. 1982).

¶36. Thus, even taking all the evidence in the light most favorable to Randall, no rational jury could

have disbelieved the armed robbery element of the State's case and also found Randall guilty of

manslaughter. Necessarily then, under Miss. Code Ann. § 97-3-19 (2)(e), the murder of Kim Che Le

was capital murder if it was anything.

¶37. It is equally clear that Randall's proposed instruction on the lesser included offense of robbery

was properly denied. As noted above, "`A 'lesser included offense' is defined as 'one composed of

some, but not all, of the elements of the greater crime, and which does not have any element not

included in the greater offense.'" Ballenger, 667 So. 2d at 1254 (quoting Cannaday v. State, 455 So.
2d 713, 724 (Miss. 1984)). Here, if Randall was guilty of robbery, then ipso facto he was also guilty

of capital murder. In other words, on the facts of this case, Randall could not rationally be found

guilty of the lesser offense of robbery without also being found guilty of capital murder. See also,

Doss v. State, No. 93-DP-00509-SCT, 1997 WL 770606, at*6 (Miss. Dec. 15, 1997).

III. CONCLUSION

¶38. In conclusion, the trial court judge was not clearly erroneous in seating juror Allen Perkins and

thus denying Randall a peremptory strike. There is sufficient evidence that the judge below found that

Randall's reasons for the strike were pre-textual in light of the prima facie case presented by the

State. Furthermore, Randall was not entitled to a manslaughter, simple murder, or robbery

instruction, there being no evidence on the record to indicate that such instructions were justified.

¶39. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE

WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

CORRECTIONS AFFIRMED. COUNT II: CONVICTION OF ARMED ROBBERY AND

SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI

DEPARTMENT OF CORRECTIONS AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, ROBERTS, SMITH

AND MILLS, JJ., CONCUR.

1. As noted above, Batson applies to strikes by the defendant as well. "Defendant" and "prosecutor"

have thus been replaced with "proponent" and "opponent" where feasible for the sake of clarity.

2. J.E.B. v. Alabama, 511 U.S. at 143-44; Hernandez, 500 U.S. at 360-61; Jackson v. State, 684

So. 2d 1213, 1223 (Miss.), reh'g denied, 691 So. 2d 1026 (1996), cert. denied, 117 S.Ct. 1703

(1997); Stewart v. State, 662 So. 2d 552, 559 (Miss. 1995); Hatten v. State, 628 So. 2d 294, 305

(Miss. 1993)(Hawkins, C.J., specially concurring); Mack v. State, 650 So. 2d 1289, 1299 (Miss.

1994).

3. Mack, 650 So. 2d at 1298 (citations omitted); Batson, 476 U.S. at 89; Hatten, 628 So. 2d at

300(Hawkins, C.J., specially concurring); Purkett, 514 U.S. at 768-69; Blue v. State, 674 So. 2d

1184, 1211 (Miss.), cert. denied, 117 S.Ct. 588 (1996) (citing Chisolm v. State, 529 So. 2d 635,

638 (Miss. 1988)); Lockett v. State, 517 So. 2d 1346, 1348 (Miss. 1987) cert. denied, 487 U.S. 1210

(1988).

4. Hernandez, 500 U.S. at 365; Lockett, 517 So. 2d at 1352; Mack, 650 So. 2d at 1299; Stewart,

662 So. 2d at 559 ("[D]emeanor of the attorney making the challenge is often the best evidence on

the issue of race neutrality.")(citations omitted); Walker v. State, 671 So. 2d 581, 628 (Miss. 1995),

cert. denied, 117 S.Ct. 518 (1996).

5. Batson, 476 U.S. at 94; Davis, 660 So. 2d at 1264 (Banks, J., concurring); Hatten, 628 So. 2d at

303(Hawkins, C.J., specially concurring); Mack, 650 So. 2d at 1298.
6. "While it is true that a defendant involved in an armed robbery in which a killing occurs but who

did not do the actual killing must have at least contemplated the use of lethal force before the death

penalty may be imposed, no such contemplation or intent is required to be found in the guilt phase of

the trial." Ballenger v. State, 667 So. 2d 1242, 1254 (Miss. 1995), cert. denied, 116 S.Ct. 2565

(1996).