IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CT-01288-SCT

JEREMIAH ROBINSON

v.

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 09/26/1997

TRIAL JUDGE: HON. L. BRELAND HILBURN, JR.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: THOMAS M. FORTNER

ROBERT M. RYAN

ANDRE' DE GRUY

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: EDWARD J. PETERS

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REMANDED - 6/15/2000

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 7/6/2000

EN BANC.

PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

¶1. Jeremiah Robinson was found guilty in the Hinds County Circuit Court of two counts of uttering forgery

and sentenced to twelve years in the custody of the Mississippi Department of Corrections on each count,

with said sentences to run consecutively to any other sentences. He appealed, and a divided Court of

Appeals affirmed his conviction. We subsequently granted certiorari to consider the issues. Because the trial

court did not make the required on-the-record factual determinations regarding Robinson's Batson

objections, Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.2d 69 (1986), we remand this

case to the circuit court in order to conduct a proper Batson hearing.

FACTS

¶2. In August 1994, Gus Primos, owner of Lakeland Development, agreed to make a campaign

contribution to a candidate running for sheriff. Jeremiah Robinson went to the offices of Lakeland

Development to collect the campaign contribution. Upon Robinson's arrival, Primos's personal secretary left

Primos's checkbook on her desk while she obtained his signature on the contribution check. Primos signed

the check and personally delivered it to Robinson.
¶3. When Lakeland Development received its monthly bank statement, it was discovered that two out-ofsequence checks had been written on the account. Further inquiry revealed that both checks had been

made out to Robinson and cashed by him at two local bank branches in the Jackson area. Robinson was

subsequently indicted and convicted of two counts of uttering forgery. The Court of Appeals affirmed

Robinson's convictions, and this Court subsequently granted his Petition for Writ of Certiorari.

ANALYSIS

¶4. Robinson asserts that the trial court did not make an on-the-record factual determination and inquiry

regarding his Batson objections, and therefore the decision of the Court of Appeals is in conflict with prior

published decisions of this Court. Specifically, he argues that the decision of the Court of Appeals is in

conflict with Hatten v. State, 628 So. 2d 294 (Miss. 1993) and Puckett v. State, 737 So.2d 322 (Miss.

1999).

¶5. In Hatten, we stated:

This Court has not directly addressed the issue of whether a trial judge is required to make an on-therecord factual determination of race neutral reasons cited by the State for striking veniremen from a

panel. The Batson Court declined to provide specific guidelines for handling this issue. This Court has

articulated the general law in this state which provides that "it is the duty of the trial court to determine

whether purposeful discrimination has been shown," by the use of peremptory challenges. Wheeler v.

State, 536 So.2d 1347 (Miss.1988); Lockett v. State, 517 So.2d at 1349.

In considering this issue, we today decide it necessary that trial courts make an on-the-record, factual

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

against potential jurors. This requirement is to be prospective in nature. Of course, such a requirement

is far from revolutionary, as it has always been the wiser approach for trial courts to follow. Such a

procedure, we believe, is in line with the "great deference" customarily afforded a trial court's

determination of such issues. "Great deference" has been defined in the Batson context as insulating

from appellate reversal any trial findings which are not clearly erroneous. Lockett v. State, 517

So.2d at 1349-50. Accord Willie v. State, 585 So.2d 660, 672 (Miss.1991); Benson v. State,

551 So.2d 188, 192 (Miss.1989); Davis v. State, 551 So.2d 165, 171 (Miss.1989), cert. denied,

494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 797 (1990); Chisolm v. State, 529 So.2d 630, 633

(Miss.1988); Johnson v. State, 529 So.2d 577, 583-84 (Miss.1988). Obviously, where a trial

court offers clear factual findings relative to its decision to accept the State's reason[s] for peremptory

strikes, the guesswork surrounding the trial court's ruling is eliminated upon appeal of a Batson issue

to this Court.

Hatten, 628 So.2d at 298.

¶6. In Puckett v. State, 737 So.2d 322 (Miss. 1999), we stated:

To establish a prima facie case of discrimination using the Batson criteria, a white defendant must

show that the prosecutor has used peremptory challenges on persons of race and that the

circumstances give rise to the inference that the prosecutor used the peremptory challenges in order to

strike minorities. Bush v. State, 585 So.2d 1262, 1267-68 (Miss.1991).
Therefore, before the trial court is required to conduct a Batson hearing, it must first be shown that a

prima facie case of purposeful discrimination exists. Specifically, Puckett must show that the State

used peremptory challenges on black jurors in such a manner that gave rise to an inference of

purposeful racial discrimination. However, it should be noted here that the State did not wait for a

Batson challenge, but provided reasons for striking all jurors regardless of race or gender.

Nonetheless, this voluntary action on the State's behalf should not be interpreted as eliminating

Puckett's burden of establishing a prima facie case of purposeful discrimination. Upon review, this

Court "must first ... determine[ ] that the circumstances of the State's use of peremptory challenges

against minority venirepersons created an inference of purposeful discrimination." Thorson v. State,

653 So.2d 876, 898 (Miss.1994) (Smith, J. dissenting).

If the trial court does make the determination that the defendant has properly established this

inference, the burden then shifts to the prosecution to provide race-neutral reasons for each

challenged peremptory strike. The defense must then provide rebuttal to the State's proffered reasons.

The trial judge must then "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).

Puckett, 737 So.2d at 334-35.

¶7. We went on to hold in Puckett:

The inference of purposeful discrimination was not automatically invoked in this case. The trial judge

did not make a ruling that Puckett had established this inference. The trial judge did not make on-therecord factual determinations and inquiry independently as required by Hatten regarding each

peremptory challenge. We therefore remand this issue for a properly conducted Batson hearing in

accordance with this opinion.

Id. at 337.

¶8. In the present case, the Court of Appeals found:

We must note that the trial court is experienced in conducting voir dire and having observed the

demeanor of these four prospective jurors during the voir dire proceedings was in the best posture to

decide whether these reasons given by the State were legitimate rather than pretextual. This Court has

held that a circuit court's decision in this matter is entitled to great deference. We will reverse the

circuit court's Batson findings only where those findings are clearly erroneous and against the

overwhelming weight of the evidence. Lockett v. State, 517 So. 2d 1346, 1350 (Miss. 1987).

"Finally, the trial court must make a finding of fact to determine if the defendant has proved purposeful

discrimination. If the defendant makes no rebuttal the trial judge must base his decision only on the

reasons given by the State." Berry v. State, 703 So. 2d 269, 294 (Miss. 1997) ( citations omitted).

As stated in Davis v. State, 551 So. 2d 165, 172 (Miss. 1989), when defense counsel only alleges

in general terms that peremptory strikes amount to Batson violations and there is no actual proffer of

evidence concerning such violation, this Court is limited in its ability to reverse on this point. In the

case at bar, counsel for Robinson only argued in general terms and, therefore, this Court is limited in

its ability to reverse.
While the record fails to reflect the racial composition of the jury, we are cognizant of, 591 So. 2d

428, 430 (Miss. 1991), by which the Mississippi Supreme Court Govan v. State announced:

The mere fact that a jury is white does not violate Batson; rather it is the racially discriminatory

exercise of peremptory challenges to strike jurors from the jury that violates the Batson rule.

Suddeth v. State, 562 So. 2d 67, 71 (Miss. 1990).

The record reflects that the judge had a hearing and required the prosecution to state race neutral

reasons for the State's peremptory strikes and the prosecution was forthcoming with such reasons.

The judge held that the State's reasons were racially neutral and accepted the representations of the

prosecution as an officer of the court. The record does not reveal that the peremptory strikes were

used in such a way as to violate the Batson rule. Accordingly, this assignment of error is without

merit.

Robinson v. State, No. 97-KA-01288-COA (Miss. Ct. App. June 8, 1999).

¶9. The record in the present case shows the following exchange took place during jury selection:

MR. DE GRUY [attorney for Robinson]: Your Honor, we make a Batson objection at this time. The

State has exercised all five challenges against African-Americans, and we ask that they bring forward

race neutral reasons.

THE COURT: All right.

MR. BUCKLEY [for the State]: Your Honor, Lawrence Jones, Panel 1, No. 3, was sleeping during

Court's instructions and during voir dire. I never saw him raise up. I couldn't tell if he was awake or

what was going on with him.

Number two, Rhonda Johnson. She was inattentive and failed to make eye contact with me and

would never nod one way or another in this manner.

Number three, Floyd Tate. He teaches political science and sociology. We didn't want him getting

back in the jury room and explaining things in a sociological manner to the jury in any way. In fact,

Gracie White and Alma Irving, both of them were inattentive. Especially, Mrs. Irving. I could not get

her to make eye contact with me in any way.

Gracie White was not responsive to any questions, and it was as if I wasn't even speaking. And I

chose to strike them for those reasons, Your Honor.

MR. DE GRUY: Your Honor, we would object to all of those reasons. The law is now clear in

Mississippi if they are going to base their strikes on things like sleeping, inattentive, no eye contact, the

Court has to make a factual finding that those things are, in fact, true. We would ask the Court to

make that determination that Mr. Jones was, in fact, sleeping.

THE COURT: Well, it would be virtually impossible for the Court to tell whether or not someone was

making eye contact with someone else. I mean, that would be - -

MR. DE GRUY: I think if you can't make a factual finding that [sic] the strike cannot be allowed.
THE COURT: I find that they would be racially neutral reasons and the Court will accept the

representations of the officer of the court.

¶10. It is clear from the record that the trial court did not make the necessary findings as required by

Hatten and Puckett. Further, the record shows that defense counsel specifically requested the Court to

make such findings. We therefore remand this case to the Hinds County Circuit Court to conduct a proper

Batson hearing pursuant to Hatten and Puckett.

CONCLUSION

¶11. Because the trial court failed to make the necessary on-the-record findings required by Hatten and

Puckett, we remand this case to the circuit court to conduct a proper Batson hearing.

¶12. REMANDED.

PRATHER, C.J., BANKS, P.J., McRAE AND WALLER, JJ. CONCUR. MILLS, J.,

DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH AND COBB,

JJ. DIAZ, J., NOT PARTICIPATING.

MILLS, JUSTICE, DISSENTING:

¶13. The majority finds that the trial court failed 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" as

required by Hatten v. State, 628 So.2d 294 (Miss. 1993). As we stated in Gary v. State, No. 98-KA00091-SCT, 2000 WL 706089 (Miss. June 1, 2000), and as I have written on previous occasions,

including Berry v. State, 703 So.2d 269, 296-98 (Miss. 1997), this Court is fully capable of balancing the

Batson factors at this level. Continued remand of such cases only wastes the trial court's limited resources

and acts to further delay justice.

¶14. In Gary, the defendant argued that a mere conclusory statement made by the trial court as to whether

it finds a discriminatory purpose or race neutrality is not the specific finding required by Hatten. There the

trial judge stated his finding in the following words:

With the exception of the gentleman who is the accountant I would say under the Batson decision that

I don't think any of these, both for the State or the defense, were stricken along racial lines or to

constitute a jury that is racially consistent.

Gary, 2000 WL 706089, at *3 (¶11).

¶15. We answered that argument by stating that "where a trial judge fails to elucidate a specific explanation

for each race neutral reason given we will not remand the case for that Batson-related purpose alone."

Id.(¶12). We then analyzed the State's grounds for its peremptory strikes and determined that each one

presented was in fact a race-neutral.

¶16. In the present case, the majority asserts the antithesis of our holding in Gary. The majority would have

this case remanded solely because the trial judge did not specifically address each individual explanation

that the State gave for its peremptory strikes. The judge, in fact, addressed all of the strikes with one

finding. After the State offered its race neutral reasons for its strikes, Robinson objected, and the trial judge
ruled as follows: "I find that they would be racially neutral reasons and the Court will accept the

representations of the officer of the court." If the ruling in Hatten was not expressly overruled in Gary, I

call for it today in this dissent. This Court is fully capable of reviewing the race neutral reasons offered by

the State in this case and all similar cases.

¶17. As in Gary, the defendant here made no rebuttal to the State's explanations for its peremptory strikes.

In Bush v. State, 585 So.2d 1262 (Miss. 1991), we stated that if a racially neutral explanation is offered,

the defendant can rebut the explanation. Id. at 1268. If the defendant makes no rebuttal the trial judge must

base his decision only on the explanations given by the State. Id. On appellate review this decision is given

great deference, and we will reverse only when such decisions are clearly erroneous. Lockett v. State, 517

So.2d 1346, 1349-50 (Miss. 1987). Therefore, we review the trial court's ruling on the strikes under a

harmless error analysis.

¶18. The record shows that the State used all five of its challenges to strike black jurors. The State offered

race neutral reasons for all five of those strikes. A review of the State's explanations illustrates that the

dismissals of the potential jurors were exacted for race-neutral reasons.

¶19. The first was dismissed for sleeping during voir dire. The second was inattentive and failed to make

eye contact. The third was dismissed by the State because of his profession-a teacher of political and

sociology. The State was concerned about his potential to explain things to other jury members in a

"sociological manner." The fourth and fifth were dismissed for inattentiveness.(1) Likely, the trial court will

make the same findings again on remand.

SMITH AND COBB, JJ., JOIN THIS OPINION.

1. For inattentiveness, see Mack v. State, 650 So.2d 1289, 1299 (Miss. 1994). With respect to one's

profession, see Brown ex rel. Webb v. Blackwood, 697 So.2d 763, 771-74 (Miss. 1997).