IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-DP-00763-SCT

LINNOX MARCUS WALKER

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 5/23/1997

TRIAL JUDGE: HON. R. KENNETH COLEMAN

COURT FROM WHICH

APPEALED:

MARSHALL COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: DAVID L. WALKER

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: MARVIN L. WHITE

DISTRICT ATTORNEY: JAMES M. HOOD, III

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL

DISPOSITION: CONVICTION OF CAPITAL MURDER

AFFIRMED. REMANDED FOR NEW SENTENCING

HEARING-5/9/2002

MOTION FOR REHEARING

FILED:

MANDATE ISSUED: 5/30/2002

EN BANC.

GRAVES, JUSTICE, FOR THE COURT:

¶1. Linnox Marcus Walker ("Walker") was convicted in Marshall County Circuit Court of capital murder

and sentenced to death. Walker appealed his conviction alleging, inter alia, that the circuit court erred in

denying his challenges to the exercise of peremptory strikes of prospective jurors by the State. This Court

affirmed the conviction, but remanded the case to the trial court for the purpose of conducting a hearing as

mandated in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986), and for a new

sentencing hearing.

¶2. The trial court conducted a Batson hearing and at the conclusion determined that the exercise of

peremptory strikes did not demonstrate that the prosecution had engaged in purposeful discrimination as
prohibited by Batson.

PROCEDURAL HISTORY

¶3. Linnox Marcus Walker was indicted by the Grand Jury on July 30, 1996, for the murder of Bobby

Dean Henderson, while engaged in the commission of the crime of robbery. During the peremptory

challenge phase of the trial, Walker made a Batson motion raising the issue of racial discrimination in the

State's exercise of peremptory strikes. This motion was raised after six of the first seven peremptory

challenges exercised by the State were against African-Americans. Walker renewed his motion after the

peremptory phase was concluded noting that the State had used seven out of nine peremptory strikes on

African-Americans. The trial judge overruled this motion without requiring the State to offer race-neutral

reasons for the strikes. Ultimately, Walker was found guilty of capital murder and sentenced to death May

23, 1997.

¶4. Walker timely filed an appeal. On May 27, 1999, this Court rendered its decision in Walker v. State,

740 So.2d 873 (Miss. 1999). We determined that an inference of racial discrimination was presented by

Walker and that the trial court erred in failing to conduct a Batson hearing pursuant to Thorson v. State,

653 So.2d 876 (Miss. 1994). Accordingly, the case was remanded to the trial court for a Batson hearing

and for a new sentencing hearing.

FACTS

¶5. On March 8, 2000, a Batson hearing was conducted at the trial court. District Attorney James M.

Hood, III, and Assistant District Attorney Ralph H. Doxey, representing the State, offered the following

race-neutral reasons for the strikes:

Juror No. 2 - Marvin Glen Johnson

BY MR. HOOD: ...Marvin Glen Johnson. Mr. Johnson, black male, and the reason that we struck

him for cause were - I - if the court will allow me to do so. I will state the reasons that I wrote down .

. . So my reason for striking juror number 2, Marvin Glen Johnson when the Court asked the venire

to look at the victims family and see if they could identify any of those members if they knew any of

them that this man was sitting on number 12. He was on the front row. I happened to notice that he

wouldn't even look at the victim's family. He states that he would hold us to a hire [sic] standard of

proof since it was a death penalty and it was neutral on the death penalty. The transcript page 143

and 144 we challenged for cause and we stated our reasons that we would stand on those reasons

stated on that page in the transcript. We again challenged juror number 2 which is in the transcript

page 153 and I would like for Mr. Doxey to state the reasons what his notes reflect.

BY MR. DOXEY: Your Honor, my same three reasons that Jim has just stated. That he would hold

us to a hire [sic] standard. He actually said he would hold us to more than a reasonable doubt on guilt

phase and that is part of the reason we struck that juror.

Juror No. 4 - Joseph Lee Dunlap

BY MR. HOOD: On our second strike we struck juror number 4. His name is Joseph Lee Dunlap

junior [sic]. Mr. Dunlap was a black male. We attempted to strike him for cause and on transcript at

page 144 and 145. Also he gave statements in the transcripts page 133 and page 131. Now our
reason for attempting to strike for cause, I believe it was in response to defense counsels [sic]

question that he wouldn't want to be held up in a tight room with a lot of people meaning back there in

the jury room. And he also objected to us making a deal as I believe as he called it with the codefendant in exchange for his testimony. And I believe he also stated something to the effect that it

would require DNA and that type of evidence was needed and therefore would have held us to a

higher standard of proof beyond a reasonable doubt. And also, had that at 11:36 he was asleep. I

would ask Mr. Doxey to state the reasons or [sic] on juror number 4.

BY MR. DOXEY: Your Honor, my notes reflect that Mr. Dunlap said that he was death penalty

neutral. That he was repeatedly yawning. He was sitting on the front row and repeatedly yawning and

not listening to his honor. But this may be the same time but he was asleep during voir dire. Juror

number 43 Bumpas at 1:35 he started a long staring at the floor and not paying attention again as 2:07

he was staring at the floor and not listening to questions. He felt both defendants should be tried

together. He has two children and not married to the mother and he is not a full-time employee. His

employee is temporary.

Juror No. 6 - James Thomas Hurley

BY MR. HOOD: Mr. Hurley is a white male and we attempted to strike him for cause at transcript

page 145 because he would require us to prove a higher standard of proof. That is all the notes I had

on him. He was a white male. That was juror number 6.

BY MR. DOXEY: Just one other reason Your Honor, he had some problem with the judicial system.

He had a small daughter that was a victim of a rape and so that was an additional reason.

Juror No. 7 - Earline Johnson Wilkins

BY MR. HOOD: Our next challenge being States [sic] 4th challenge was on juror number 7. Earline

Johnson Wilkins. Mrs. Wilkins is a black female. I have in my notes at 11:25 she went to sleep. That

she was a nurse. Which prosecutors interpret in my experience with a nurse I put on in a death

penalty case she hung the jury up on death phase and that was a case in Lafayette County. Being that

she is a care giver and her duty is to saves [sic] peoples [sic] lives. It's the States opinion that she

would tend more to give the defendant a second chance and she also questioned the entire judicial

system. And I ask Mr. Doxey for comments on juror number 7.

BY MR. DOXEY: That is what my notes reflect, Your Honor, on that one.

Juror No. 16 - Joseph Ambrose

Juror No. 21 - Stanley Ambrose

BY MR. HOOD: ...The next juror that we exercised a challenge on was juror number 16 Joseph

Ambrose. That was our fifth strike. He is a black male. I believe the transcript I notice at page 140

that he was related to juror number 21 who is also Ambrose and the name Stanley Ambrose. We

struck juror number 16 because he was kin to this Stanley Ambrose juror number 21. The law

enforcement officer informed us that these fellows were kin to a prior criminal defendant in Marshall

County by the name of George Ambrose. We had prosecutes [sic] him before. And also this man

was wearing an earring with the statements that I had in my notes that I had on it. I will ask Mr.
Doxey for comments from him.

BY MR. DOXEY: Yes, Your Honor, and one additional this defendant was not married and had

children by a woman he wasn't married to or living with them.

BY MR. HOOD: That cause number on George Ambrose whose a relative of according to the law

enforcement officers. We looked up the cause number and it was M K, Marshall County 97-070. So

97 was the same year I believe this case was tried. We had prosecuted an Ambrose and that was our

reason for striking him. The next juror that we exercised the challenge on was juror number 21,

Stanley Ambrose. That was our 6th Strike and he is a black male and there again related to this

George Ambrose and number 16 at page 120 of the transcript. They both agreed that they were

related. Juror number 6 and 21. And for the reasons we stated on Joseph Ambrose he is related to

George Ambrose who was prosecuted by our office. I would ask Mr. Doxey for comments on Mr.

Ambrose.

BY MR. DOXEY: Have nothing further on my notes on that strike.

Juror No. 22 - Rodney Ivery Crane

BY MR. HOOD: Our next challenge was juror number 22, Rodney Ivery Crane. He is a black male

that was juror number 22 that was our 7th strike . . .

My comments on juror number 22 are that we tried him for cause page 146 of the transcript and I

think that page 134 and 131 he stated on page 134 of the transcript that he didn't want to get in a tight

room with the other jurors and also he objected to us making a deal with co-defendant to testify. I

believe at page 146 of the transcript reads would that be an appropriate preemptory [sic] challenge

but he didn't think it was sufficient for cause. I will ask Mr. Doxey if he had any comments on juror

22.

BY MR. DOXEY: Yes, Your Honor, he said he would hold us to a higher standard and thought both

defendants should be tried together. One of our witnesses potential witnesses, Robert Burk, who was

a law enforcement office at the time this crime occurred, he said he would believe Robert Burk more

than anyone else we put on there and probably believe law enforcement more and he didn't want to

be locked up for a long time in the jury room.

Juror No. 29 - Jerome Boyce

BY MR. HOOD: Our next juror we challenged was juror number 29 Jerome Boyce. He was a black

male. He was the 9th juror. He was strike number 8 by the State. We challenged Mr. Boyce on page

147 because he said he didn't want to be cooped up in a tight room with other jurors and I have a

note here that he stated that he was a jail house minister and his comments were on page 134 of the

transcript. I will ask Mr. Doxey if he was a comment.

BY MR. DOXEY: Yes, Your Honor, Mr. Boyce stated that he thought everyone deserved a second

chance. He knew Robert Burk. He has been involved with law enforcement. He had his head down

repeatedly. He was looking out the door when the judge was explaining the death penalty. He had his

eyes closed and one time he had his eyes closed enough that he was asleep and one of the keys, hand

written notes. One of my keys he thought both defendants should be at trial but I didn't have that on
the other key.

Juror No. 36 - Brenda Lee Dockery

BY MR. HOOD: The next strike we exercised is on juror number 36, Brenda Lee Dockery. I didn't

have a note whether she may have been a black female. I believe she was a black female and on the

transcript page 131 she said that she didn't like the idea of us making an agreement of a lesser

sentence of a co-defendant. I will ask Mr. Doxey if he had any comments about her.

BY MR. DOXEY: Yes, Your Honor, this particular juror shown by her juror card is unemployed.

Not employed. She is not married. She has three children at home and by striking her we get to juror

number 37 who we took. Who was two years of college and is employed and the State thought that

particular juror would be a better juror than number 36.

¶6. The State maintains that all of the reasons given by the prosecution are race-neutral and that there is no

violation of Batson. The State argues that the trial court's finding is entitled to great deference. Additionally,

the State argues that Walker has demonstrated nothing that can overcome the presumption that the ruling of

the trial court is consistent with the weight of the evidence.

¶7. The only rebuttal offered by Walker at the Batson hearing was that it was a questionable practice to

allow peremptory strikes to be based on a juror's being asleep during voir dire. The record reveals that

Walker's attorney, David L. Walker, stated:

BY MR. WALKER: Your Honor the one concern I have is the reason used several times by the state

about a perspective juror being asleep. You know, that is that is a very subjective standard if a

person closed his or her eyes for a moment or two could that be characterized as asleep or not. It's

going to come down to one day having a video camera in a court room to video the venire to see if

any are asleep or not. That gives me some concern there. The other reasons given by the State, Your

Honor, the Supreme Court has dealt with this issue many times and we would just ask the court to

determine if these reasons are some that had been previously accepted by the Mississippi Supreme

Court.

¶8. Walker concedes that prospective jurors may appropriately be struck on the following bases: (1) when

a relative has been charged with a crime (see Magee v. State, 720 So.2d 186 (Miss. 1998)); (2) when

prospective jurors have scruples against the death penalty (see Stringer v. State, 500 So.2d 928 (Miss.

1986)); and (3) when a potential juror was asleep during voir dire (see Walters v. State, 720 So.2d 856

(Miss. 1998)).

¶9. Walker maintains that the record is silent as to the State's calling the trial court's attention to the alleged

fact that prospective jurors were asleep so that corrective action could be taken and a record made of this

fact. Additionally, Walker argues that the State's failure to conduct individual voir dire of the jurors who

allegedly were asleep must weigh against the State in evaluation of its proffered reasons for exercising

peremptory challenges of those venire members during the Batson hearing. He further argues that a trial

judge should give a clear and reasonably specific explanation for his ruling on peremptory strikes when

determining if an explanation is sufficiently race-neutral.

STANDARD OF REVIEW
¶10. This Court applies the following standard of review on appeal from the circuit court's findings under

Batson:

We give great deference to the trial court's findings of whether or not a peremptory challenge was

race-neutral. . . . Such deference is necessary because finding that a striking party engaged in

discrimination is largely a factual finding and thus should be accorded appropriate deference on

appeal. . . . Indeed, we will not overrule a trial court on a Batson ruling unless the record indicates

that the ruling was clearly erroneous or against the overwhelming weight of the evidence. . . .

Thorson v. State, 721 So.2d 590, 593 (Miss. 1998).

DISCUSSION

WHETHER THE TRIAL COURT'S BATSON RULING THAT THE STATE OFFERED

SUFFICIENT RACE-NEUTRAL REASONS FOR STRIKING POTENTIAL JURORS

WAS APPROPRIATE AND SHOULD BE AFFIRMED.

¶11. Under Batson, when a defendant shows that he is a member of a cognizable racial group and that the

prosecution has exercised peremptory challenges to remove from the venire, members of the defendant's

race, an inference arises that the prosecutor has used that practice to exclude the venire men from the petit

jury on account of their race. Batson, 476 U.S. at 96, 106 S.Ct. at 1722-23, 90 L.Ed.2d at 97-88. Once

this inference, which is tantamount to a prima facie case, is established, the prosecutor is required to

announce race-neutral reasons for the exclusion of those persons from the venire. Stewart v. State, 662

So.2d 552, 557-58 (Miss. 1995). See also Batson, 476 U.S. at 97, 106 S.Ct. at 1712. Additionally, the

defendant is allowed to rebut the reasons which have been offered by the State. Bush v. State, 585 So.2d

1262, 1268 (Miss. 1991). However, if the defendant offers no rebuttal, the trial court is forced to examine

only the reasons given by the State. Id. It is necessary for the trial court to make an on-the-record, factual

determination, of the merits of the reasons cited by the State for its use of peremptory challenges against

potential jurors. Hatten v. State, 628 So.2d 294, 298 (Miss. 1993).

¶12. When a Batson issue arises, the trial judge acts as the finder of fact. Berry v. State, 703 So.2d 269,

295 (Miss. 1997)(citing Turner v. State, 861 S.W.2d 36, 39 (Tex. Ct. App. 1993)). The race neutral

explanations must be viewed in the light most favorable to the trial court's findings. Id. Trust is placed in a

trial judge to determine whether a discriminatory motive drives the reasons given for striking a potential

juror. See Webster v. State, 754 So.2d 1232, 1236 (Miss. 2000). The determination of discriminatory

intent will likely turn on a trial judge's evaluation of a presenter's credibility and whether an explanation

should be believed. Batson, 476 U.S. at 98, 106 S.Ct. 1712. Thus, trial courts are given great deference

in their findings of fact surrounding a Batson challenge. Lockett v. State, 517 So. 2d 1346, 1350 (Miss.

1987). One of the reasons the trial court is afforded such deference when a Batson challenge is raised is

because the demeanor of the attorney making the challenge is often the best evidence on the issue of race

neutrality. Webster v. State, 754 So.2d at 1236. On appellate review, the trial court's decision is accorded

great deference and will be reversed only when such decision is clearly erroneous. Lockett v. State, 517

So.2d at 1349-50.

¶13. This Court has previously offered guidance to the trial courts by approving a list of race-neutral

reasons accepted by other jurisdictions. See Lockett, 517 So.2d at 1356-57. Among these are the

following: living in a "high crime" area, body language, demeanor, prosecutor's distrust of the juror,
inconsistency between oral responses and juror's card, criminal history of juror or relative, social work and

other types of employment, and religious beliefs. Id. This Court was careful, however, to point out that this

list was not exhaustive. Id. at 1352.

¶14. In the case sub judice, the trial court noted that during the Batson hearing, it reviewed notes made

during the voir dire process and found them to be consistent with the explanations offered by the State

which formed the bases for the peremptory strikes. The trial court correctly noted that the State's reasons

did not need to rise to the level of justification required for a challenge for cause. See Harper v. State, 635

So.2d 864, 867 (Miss. 1994).

¶15. Most of the reasons offered by the State can be found on the Lockett list. Furthermore, Walker

conceded that prospective jurors may be struck for having scruples against the death penalty and for being

asleep during voir dire. Because the record indicated that the trial judge undertook an evaluation of each

reason given for striking each potential juror, the requirements mandated by Hatten were met.

¶16. The only additional argument made by Walker concerns the "subjectiveness" of determining whether a

prospective juror is asleep. Again, the record is clear that the trial judge made a sincere, bona fide effort to

properly weigh and examine the race-neutral reasons cited by the State. Specifically, the trial court

determined that Walker did not prove any purposeful discrimination as required under the law. This finding

is not clearly erroneous or against the overwhelming weight of the evidence.

CONCLUSION

¶17. The trial court did not err in finding the State's reasons facially race-neutral. As no discrimination was

found in the Batson hearing, the conviction of capital murder is affirmed. However, the case is remanded to

the trial court to conduct a new sentencing hearing pursuant to Walker v. State, 740 So.2d 873 (Miss.

1999).

¶18. CONVICTION OF CAPITAL MURDER AFFIRMED. REMANDED FOR NEW

SENTENCING HEARING.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ, EASLEY AND

CARLSON, JJ., CONCUR.