IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-KA-00282-SCT JONTAV IAN EUBANKS

v. STATE OF MISSISSIPPI DATE OF JUDGMENT: 10/31/2017 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN, III TRIAL COURT ATTORNEYS: CYNTHIA ANN STEW ART DEW EY KEY ARTHUR GREGORY VINSON MILES COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CYNTHIA ANN STEW ART ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: JOHN K. BRAMLETT, JR. NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/27/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GRIFFIS, JUSTICE, FOR THE COURT: ¶1. Jontavian E ubanks appeals his convictions of burglary of a dwelling a n d conspiracy
to com m i t burglary

of a dwelling. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Ashley Brown and J essica Baugh were r oom m a tes at the Bay Meadows Apartm ents in Ridgeland. Brown and Baugh a lso worked together at Last Call Sports Bar in Ridgeland. ¶3. On January 9 , 2016, B rown and Baugh f inished their shif

t and m et up with f

riends, including Stephanie Mejia, a coworker f rom the bar. Brown eventually lef t and went hom e.Baugh and M ejia continued to hang out, and Mejia arranged to spend the night at Brown’s

and Baugh’s apartm ent. Because Mejia did not have a key to t he apartm ent, Baugh told her that she would leave t he door u nlocked. M ejia then lef t Baugh to m eet up with her f riends. Baugh m et her f

r iend Chris J ones and the two w ent b ack to Baugh’s apartm ent. According to Baugh, she and Jones arrived at her apartm ent around 4:00 a.m . on January 10, 2016. ¶4. During the night, Jones woke up Baugh and advised that som eone had com e into the apartm ent. Baugh was not concerned because she assum ed it was M ejia. Later that m orning, B r own w oke up Baugh and advised that her car was gone. B rown’s k ey s, a l o n g w i t h h e r debit and credit c ards, were also go ne. Baugh began to look a round t he apartm ent and noticed that her iPad and Michael Kors bag were m i ssing. The tips that Baugh had received f rom work were in the bag. 1 Brown and Baugh called the police. ¶5. Of f icer A drian Ready with the Ridgeland Police Departm ent learned that Am onteel Pates had used Brown’s credit card to purchase a pair of shoes on January 10, 2016. Pates

was later arrested. W hen questioned about the incident at Brown’s a n d Baugh’s a partm ent, Pates acknowledged his involvem ent and culpability and p rovided the name s of the other suspects to Of

f icer Rea d y . Those suspects were Rahim W illiam s , Michael Tillm an, Fabiy onne Peel, and Eubanks. 2 ¶6. According to Pates, Mejia called a nd told him that she had som ething f or him to do.

1 A cco r d i n g to B au g h , i t w as h er co m m o n p ractice t o p u t h er tip s in th e b ag ev ery n ig h t at w o rk

. 2 A lth o u g h M ej i a w o u ld h a v e lik ely b een a su sp ect, sh e w as sh o t a n d k illed so m etim e af ter th e o f f en ses w ere rep o rted . T h is f act w as n o t d isclo sed to th e j u ry . 2Pates explained t hat he understood this to m ean that M ejia wanted him to com m it som e ty pe of crim e. Pates m et Mejia at IHOP on the night of January 9, 2016. W hile Pates m et with Mejia, W illiam s, T illm a n, Peel, and Eubanks waited in the parking lot. Mejia advised Pates that Baugh had m ade good tips at work that night and t hat s he wanted Pates to steal the

m oney , along with B augh’s M ichael Kors bag. Pates was aware that Mejia had a rranged to spend the night at Baugh’s and Brown’s apartm e nt and that Baugh w o u l d leave the door unlocked. ¶7. In the early m o rning hours of January 1 0, 2016, Pates drove to Baugh’s and Brown’s apartm ent in Mejia’s car. W hen he a r r i v e d , W illiam s, Tillm an, Peel, and Eubanks were

a l r e ady at the apartm e nt. According to P ates, W illiam s, Tillm an, Peel, and E ubanks wen t inside the apartm e nt. Tillm a n cam e out of t he apartm ent f irst and was carry ing som e key s and throwing out credit c a r d s . P a t e s picked up all of t he credit cards. Tillm an located Brown’s vehicle, an orange Dodge Charger, and drove of f

. ¶8. W h en W i lliam s, Peel, and Eubanks cam e out of t he a partm ent, they advised Pates that they were unabl e t o locate the M ichael Kors b ag. W illiam s, Peel, a nd Eubanks then went back into the apart me n t a second tim e. W hen t hey em erged, W i lliam s was carry ing the Michael Kors bag, and Eubanks was carry i n g a n i P a d

. P ates a cknowledged that he, W i lliam s, Tillm an, Peel, and Eubanks all com m u nicated via cell phone that night. ¶9. Of f icer Ready obtained arrest warrants f or W illiam s , T illm an, Peel, and Eubanks and
attem pted to locate Eubanks at his hom e in Jackson. W hen he arrived at Eubanks’s hom e, Of f icer Ready noticed that a vehicle registered t o P eel was in the driveway

. Of f icer Ready

3entered the hom e a nd located E ubanks i n the rear bedroom ; Eubanks was pretending to sleep

on the bed. Peel was hiding beside the bed under a pile of clothes. ¶10. During his search of Eubanks’s residence, Of f i cer Ready

located Baugh’s iPad that had been stolen f

r om h er apartm ent. H e also seized three cell phones. Of f i cer Ready was able to ident i f

y the cell-phone num

bers of each o f t he s uspects and subpoenaed their cell phone records. T he cell-phone records revealed that Eubanks, Pates, a nd W illiam s had been in com m unication with M ejia throughout the night of the a l l e g ed of f e nses. A ccording to Brown a nd B augh, Mejia was the only person who had perm ission to enter their apartm ent on the night of

the alleged of

f enses. ¶11. Eubanks, Pates, Peel, W illiam s, and Tillm an were indicted on Count I, burglary o f a dwelling, Count II, conspiracy to co mmi t b u rglary of a dwelling, Count III, m otor-vehicle thef t, and Count IV, c onspiracy to com m it m otor-vehicle thef t. Pates pleaded guilty and was sentenced to twenty -f

ive y ears in t he custody o f the Mississippi Departm ent of Corrections (MDOC), with ten y ears to serve. As part of his plea a g r e e m ent, Pates testif ied against Eubanks at trial. ¶12. Eubanks was convicted of Count I, burglary of a dwelling, and Count II, conspiracy
to com m it burglary of a d welling, and was se n t e n c e d to serve twenty -f ive y e ars in the custody of t he M DOC on Coun t I a n d f i v e y ears on C ount I I, with the sentences to run concurrently t o each other, b ut consecutively to any and a ll other sentences. He w as f urther ordered to pay $ 698.50 in court c osts, f e es, and assessm ents. Eubanks was ac q u i t t e d on Counts III and IV.

4¶13. Eubanks f iled a m otion f

o r a judgm e n t notwithstanding the verdict o r, alternatively ,

a new trial. The m otion was denied. Eubanks tim ely appealed. On appeal, E ubanks asserts that the trial court e rred by (1) deny ing his m otion f or f unds to r etain an expert f

or trial, (2) deny ing h is m otion f

or f unds to retain an expert f or a Daubert

3 heari n g , ( 3 ) overruling his Batson 4 challenge, and ( 4) perm i tting hearsay testim ony t o establish essential elem ents of the charged of

f enses. ANALYSIS I. W hether the trial court erred by denying Eubanks’s motion for funds to retain an expert. ¶14. Bef

ore trial, the State advised that it intended to call representatives f rom T-Mobile, AT&T, and C Spire, as well as an i nvestigator f rom the Attorney General’s Of f i ce, to testif

y regarding the cell-phone reco r d s o f E u b a nks, P ates, W illiam s, a nd T illm a n. In response, Eubanks f iled a m otion in lim ine to exclude the expert witnesses’ t estim o nies. In t he m otion, Eubanks asserted that “[ t]he purpose of the [ cell-phone] records and testim ony [ wa]s to show which cellular t owers the various cell phones ‘pinged’ of f o f during calls or texts m ade during or about the tim e o f the alleged crim inal a c tivity .” Eubanks argued that “[ t]he science behind the ‘pinging’ of a particular phone on a particular ce l l tower

. . . i s f l awed.” As a result, Eubanks m oved in lim ine to exclude any expert testim ony concerning his location “at

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5[ a] given tim e by use of cell phone data.” 5 ¶15. E u b a n k s a l s o f

iled a m otion f

or f unds to retain a n expert and to proceed in forma pauperis

. The trial court def erred ruling on the m otio n b e c a u se def ense counsel had not of f ered any inf

o rm ation regarding the nam e of t he expert or the associated costs. Eubanks then f iled a “Supplem ental Motion f or Expert and Funds and To Proceed In F orm a P auperis” and included t hat inf

orm a tion. In t he m otion, Eubanks asserted that he needed a n expert who

was knowledgeable “ as t o technical cell phone tower issues

. . . t o r eview the [ cell-phone] records and evidence [ in order] to assist with cross-exam i nation and [ to] rebut [ the State’s expert] testim ony .” Eubanks f urther asserted that he needed the assistance o f a n e xpert to prepare f or the D aubert

hearing on his m otion in lim i ne. According to Eubanks, he “d[ id]
not have the f

unds to pay f

or such an expert” and theref ore “ s[ ought] the [ c]ourt’s intervention f

or pay m ent of these f

unds.” 6 ¶16. At the m o tion hearing, the trial court f ound that b ecause the State w as n ot r ely ing on exp e r t t e s tim ony a lone to prove a n elem ent of t he o f f ense, Eubanks w as not entitled t o an expert to assist in his def

ense. As a result, the trial court denied E ubanks’s m o tion f or expert and f u n ds. The trial court d id not consider Eubanks’s m otion to proceed in forma pauperis

. Eubanks’s m otion in lim ine was denied. ¶17. On appeal, Eubanks argues that t he trial c ourt erred “ in ref u sing to g rant f

unds f o r an

5 A t th e h earin g , d ef

en se c o u n sel ex p lain ed t h a t t h e “m o tio n in lim in e . . . [ w as] to ex clu d e t h e w itn ess b ased o n th e tech n o l o g y b ein g in su f

f icien t.”

6 E u b an k s’s t rial co u n sel w as retain ed

. E u b an k s asserts th a t alth o u g h h e in itially h ad su f f icien t f u n d s to h i re trial co u n sel, h e d id n o t h av e th e f

u n d s to h ire an ex p e rt. 6expert.” Eubanks asserts he needed an expert to (1) assist i n the preparation f o r trial and (2) assist i n the preparation f or a D a ubert hearing. Although E ubanks separately raises these issues in his brief

on appeal, this Court addressed both issues jointly

. ¶18. A trial c ourt’s decision to deny a request f or f u nds to hire an exper t is reviewed f or an abuse of

discretion. R uffin v. State , 447 So. 2d 113, 118 (Miss. 1984). That there can conceivably be instances when the sta t e i n f airness should be required to pay the cost of an expert needed b y t he def ense to insure a f

air trial f or an indigent a ccused m

ust be conceded. Those cases can only be l ef t to the discretion of

the trial court, and they

will be rare. Id. at 118. ¶19. The United States Suprem e Court has held that the “basic tools o f an adequate def ense

or a ppeal” m ust “be p rovided to those def endants who cannot af

f ord to pay f

or them .” Ake v. Oklahom a , 470 U.S. 68, 77, 105 S. Ct. 1087, 77 L. Ed. 2d 53 (1985) (internal quotation

m arks om i tted) (quoting Britt v . North Carolina , 404 U.S. 226, 227, 9 2 S. Ct. 431, 30 L. Ed. 2d 4 0 0 ( 1 9 71)). In order to determ ine whether an expert is a “ basic t ool[ ] of an adequate def ense,” three f

actors are c onsidered: (1) “the private in t e r est that w i ll be a f f e cted by the action o f the S tate”; (2) “the go v e r n me n tal interest that will be af f ected if the saf

eguard is
to be p rovided”; and (3) “ the probable value of t he a d d i t i o n a l or substitute p rocedural saf eguards that are sought, and the risk of a n erroneous deprivation of the af f ected interest if those saf

eguards a re not provided.” I d. at 7 7. U nder the f

irst prong, the private interest

at issue i s “ a n i ndividual’s interest in accurate crim inal proceedings, which i s ‘ uniquely

com pelling’ and heavily weighs in the individual’s f avor.” I sham v. S tate , 161 So. 3d 1076, 1082 ( Miss. 2015) ( quoting L o w e v . S t a te , 127 S o. 3d 178, 1 82 (Miss. 2013)). Under the

7second p rong, t h e governm ental interest is a pecuniary interest “given that the county

governm ent m

ust provide f

u nds f or a court-ordered e xpert.” Id. But s uch an interest is “insubstantial” and is “outweighed” by both the individual’s and t he governm ent’s interest in a f air a nd accurate cr i mi n al proceeding. Id. “Finally , the third prong, which this Court analy zes the m ost intensely , requires the trial court to balance the probative v alue of expert tes t i mo ny f

o r [ Eubanks] against the risk of not providing him expert a ssistance.” Id. Although a State is not required to “purchase f or the indigent def

e ndant all t he a ssistance that his wealthier counterpart m ight buy . . . , f undam ental f

airness entitles indigent def endants
to ‘an adequate opportunity t o present their claim s f airly within the adversary sy stem .’” Ake , 470 U.S. at 77 (quoting Ross v. M offitt , 417 U.S. 600, 612, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974)). ¶20. “An indigent’s rig h t t o d e f e nse expenses is ‘ conditioned upon a s h owing that such expenses a re needed to prepare and present an adequate def ense.’” Green v. State , 631 So. 2d 167, 171 (Miss. 1994) ( em phasis om itted) (quoting Ruffin , 447 So. 2d at 118). A party seeking ass i s t a n ce “ is required to of f er c oncrete reasons f

or requiring such assistance, not ‘undeveloped assertions t hat the requested assistance would be b enef icial

. . . .’” H

ansen v. State , 592 So. 2d 114, 125 ( Miss. 1991) (quoting Caldwell v. Mississippi , 472 U.S. 320, 323 n.1, 105 S. Ct. 2633, 86 L. Ed. 2d 231, (1985)). This Court weighs o n a case by case basis whether the d enial o f expe r t assistance f

or an accused is prejudicial to the assurance of a f air trial and will grant relief only where the accused d em onstrates t hat the trial court’s abuse of discretion is so egregious as to deny h im due process and where his trial was thereby rendered f

u ndam entally

unf air.

8J

o h n s o n v. State , 5 29 So. 2d 577, 590 (Miss. 1988) (citing Johnson v . State , 476 So. 2 d 1195, 1203 (Miss. 1985)). ¶21. In Lowe , this Court f o und that the d ef

endant’s nee d f

o r a n e x pert was vital. Lowe , 127 So. 3d at 1 84. The Court noted that the State could not prove an elem ent of t he charged of f ense without expert testim o ny . Id. at 183. The Court held, W h ere . . . the State relies on expert testim ony alone to connect the def endant to the of f ense cha r g e d , a n i ndependent def ense expert i s p art of the “raw m aterials integral to b uilding an ef f ective def ense,” and the trial j udge deprives a n i n d i g ent def

e ndant o f a f

undam entally f

air trial by ref

u sing him f

unds t o procure such an expert. Id. at 184 (em

phasis added) (quoting Ake , 470 U.S. at 77). ¶22. Additionally , in Brown v. S tate , 1 52 S o. 3d 1146, 1169 (Miss. 2014) (quoting Lowe , 127 So. 3d at 1 84), this Court f ound that a n “ e x p ert is n ecessary here in order to m ake the trial ‘f undam entally f

air.’” In Brown , the d ef

endant w as convicted of t he capital m urder of his son, who died of injuries the pathol o g i s t o p i n ed were consistent with shaken-baby sy n d rom e. Id. a t 1156-57. Bef ore trial, the def

endant requested f

unds to hire a m edical expert to challenge the pathologist’s testim ony regarding the ca u s e of death. Id. at 1165. The trial court denied t he m otion because the def endant had been able t o p ost bond and to retain counsel. Id. On appeal, this Court reversed and f ound that the p athologist “of f ered the only e v idence on both the u n derly ing f elony of c hild a

buse and the cause and m anner of death . . . .” Id. at 1167 (em phasis added). In o ther words, “the sole prim ary basis f or [ his capital m urder charge] [ w as] the f

inding and anticipated testim ony of the Pathologist

. . . .” Id. at 1 1 6 6 ( f

irst alteration in original). T he C ourt d eterm ined that without an expert, the

9def

endant “was denied t he ‘ra w ma t e rials integral to the building of a n ef f ective def ense’. . . .” Id. (quoting Ake , 470 U.S. at 77). ¶23. In deny ing E ubanks’s m otion f or f unds to hire an expert, the trial cour t r e lied on I s h a m . 7 In I

sham , the def

endant was charged with f elony child abuse. Id. at 1 0 7 9

. “Accordingly , it was essential to the State’s case that it prove that the child’s injuries were inf licted through blunt f

orce or abusive nonaccidental traum a a nd that they could have been

s ustained by the c hild only though such nonaccidental traum a.” Id. at 1083. E l e v e n d a y s bef ore the trial w as scheduled to begin, the d ef endant f iled a m otion f

or expert f

u nding. Id.
at 1079. The trial court denied the m otion b ecause “the def endant had not provided a concrete reason f

o r requiring def

ense experts in the case . . . .” Id. at 1079. ¶24. On appeal, this C ourt noted that “it [ wa]s u nquestionable that the State’s experts were the only source of the testim ony concerning [ the] essential c om ponents of the prosecution’s proof .” Id. (em

phasis a dded). R ely ing on Lowe and Brown , this Court f ound that because “the State’s prim ary

evidence showing that [ the def endant] had com m itted the crim e cam e through expert testim ony ,” the trial court erred by deny i ng the d ef endant’s m otion f

or f unds to retain an expert. Id. at 1084. ¶25. Here, Eubanks was convicte d of b urglary of a dwelling and conspiracy t o com m it

7 Ju stice C o lem a n asserts th at th e trial co u rt d id n o t d iscu ss th e A k e f acto rs. Wh ile th e reco rd ref

lects th at th e t rial co u rt d id n o t sp ecif ically cite A k e , i t d i d rev iew v ario u s cases, in clu d in g Ish a m , w h ich d iscu s ses A k e a n d e ach A k e f acto r. S ee Ish a m , 1 6 1 S o . 3 d at 1 0 8 1 -8 2

. T h u s, alth o u g h th e trial co u rt d id n o t sp ecif ically ref eren ce A k e , it d id co n sid er Ish a m an d , in tu rn , th e A k e f a cto rs.

1 0burglary of a dwelling. “Burglary consists of b reaking and entering the dwelling house of

another with intent to com m i t som e crim e therein.” P ool v. State , 764 S o. 2 d 440, 444 (Miss. 2000). “Conspiracy is a com bination o f two or m ore p e r s o n s who conspire to com m it a crim e.” Johnson v. S

tate , 832 So. 2d 1263, 1265 (Miss. C t. App. 2002) ( citing Miss. Code Ann. § 97-1-1 (Rev. 2000)). The record s h o w s t h at i n order to prove the elem ents of the charged o f

f enses, the S tate r elied prim a rily on the testim ony of Pates, E u b anks’s codef endant, and Of

f icer R eady

. Pates identif ied Eubanks a s a perpetrator of th e a l l e g e d of f enses. Pate s t e s t i f

i e d that he com m

unicated with Eubanks on t he night of the alleged of f enses and saw Eubanks enter the apartm ent and later exit the apartm ent carry ing an iPad. O f f i c e r Ready testif

i ed that af

ter Eubanks w as located, the stolen iPad was f ound in hi s possession. He f

urther testif

ied that cell-phone records indicated that Eubanks, Pates, an d W i lliam s had been in com m unication with Mejia throughout the night of t h e a l l eged of f enses. The expert testim o ny regarding the cell-phone records was unnecessary to prove the charged of

f enses. Instead, it sim

ply c orroborated P ates’s testim ony regarding Eubanks’s presence at the a

partm ent o n the night in question a nd his involvem ent and participation in the charged of

f enses. T hus, unlike in L owe , Brown , and Isham , the State did not rely on expert testim ony

alone to connect Eubanks to the charged of f enses. ¶26. Additional l y , the record shows that Eubanks f ailed to show a substantial need or a concrete reason f

o r expert assistance. Eubanks argues that he needed an expert to analy ze the cell phones and cell-phone data b e c a u s e “[ t]he science behind the ‘pinging’ of a particular phone on a particular c ell tower

. . . is f lawed.” But “pinging” was not u sed in this

1 1case. Instead, t h e S tate’s experts reviewed historical call-detail records to determ ine the

approxim a te location of the cell phones when the calls were m ade. C harlie R ubis o f f , an expert in historical c ell m apping, t estif ied that each of the parties’ c e ll-phone records indicated that their p hones had been used w ithin the general area of the a p artm ent where the of f enses occurred at the approxim ate tim e that the of f enses occurred. ¶27. Eubanks acknowledges that “[ t]he connections of [ a] cell phone to a particular tower

can be helpf

ul in putting som eone in a wide speci f i c a r e a . ” H e c laim s , however, that “the inaccuracy of determ ining location f rom ‘pinging’ is widely recognized as a problem by law enf orcem ent.” He contends that “without an independent expert, [ def ense] c o unsel had no way of ensuring that the d ata w ould show which c ellular towers t he various phones ‘pinged’ of f of during calls or texts m ade during or about the t im e of t he a lleged crim inal activity .” But, as previously stated, pinging, a f orm of contem

poraneous surveillance, was not used and is n ot relevant here. Thus, based on Eubanks’s a rgum ent, it is unclear how an expert would have assisted in Eubanks’s def ense. ¶28. Eubanks asserts that h ad he been allowed to retain an independent expert, the expert “would have p ossibly been able to ref ute t he State’s experts opinions. ” ( E mphasis added.) But s uch an assertion, i.e., that expert assistance would p ossibly be benef i cial, is insuf

f icient
to w arrant the r equested r elief

. See Hansen , 5 92 So. 2d at 125 (quoting Caldwell , 472 U.S.
at 323 n.1). Regardless, the record shows that def ense c ounsel, without the requested expert assistance, thoroughly cross-exam ined the experts on their historical call-data analy sis and i t s reliability regarding device location. Specif ically , o n cross-exam ination, Rubisof f

1 2acknowledged that the historical c all-data analy s is or m ethodology does not track people, it

tracks only

devices. Moreover, he acknowledged that the m ethodology would n ot provide a precise location f

or a device, just a general geographic area. ¶29. Eubanks f

ails to show how the trial court’s ref usal o f f unds f or an expert deprived h im of a f undam entally f

air trial or Daubert hearing. Stated dif f erently , Eubanks f

ails to show that he required the assistance of an expert as a “basic t ool[ ] o f an adequate def ense.” Ake , 470 U.S. at 77. As a result, the t rial court did not abuse its d iscretion b y deny ing Eubanks’s

m otion f or f unds to retain an expert. II. W hether the trial court erred by overruling Eubanks’s Batson challenge. ¶30. Eubanks next argues that the trial court erred by o verruling his Batson challenge. In Batson , the United States Suprem e Court held that p arties could not exercise p e rem ptory strikes based solely

on a potential juror’s race. B atson , 476 U.S. at 89. “ B atson requires a three-pronged inquiry .” Lynch v. State , 877 So. 2d 1254, 1270 (Miss. 2004). First, the party objecting to the pere mp t ory strike of a potential juror m ust m ake a prim a f

acie showing that race was the criterion f o r the strike. S econd, upon such a showing, the burden shif ts to t he State to a rticulate a race-neutral reason f or e xcluding that particular juror. F i n a l l y , af ter a race-neutral explanation has been of

f e red by the prosecution, the trial c ourt m ust determ ine w h e t h e r the objecting party has m et its burden to prove that there has been purposef ul discrim ination in the exercise of the perem ptory strike, i.e., t hat the reason given was a pretext f or discrim ination. H.A.S. Elec. Contractors, Inc. v . Hem phill C onstr. Co. , 232 So. 3d 117, 133 (Miss. 2016) (citing Pitchford v. State , 45 So. 3d 216, 224 (Miss. 2010)). ¶31. “Af

ter the State of

f ers its reasons f

or striking a p o t e n t i a l juror, the def endant is

1 3allowed to rebut the reasons of f e red by the State.” Lynch , 877 S o. 2d at 1 271 (citing Walker

v. State , 8 1 5 So. 2d 1 2 09, 1215 (Miss. 2002)). “[ I]t is i ncum bent upon a def

endant claim ing that prof f ered reasons are pretextual to raise the argum ent b ef ore t he trial court. The f

ailure
to d o so constitutes wai v e r . ” I d . (internal quotation m arks om itted) (quoting M anning v. State , 735 So. 2d 323, 339 (Miss. 1999)). “[ O]nce t he [ striking] party of f ers a valid raceneutral reason, t he trial j udge m ust allow the strike unless the other party dem o nstrates that the valid race-neutral reason was a pretext f or discrim ination.’” H.A.S. , 232 So. 3d at 124 (quoting Hardison v. State , 94 So. 3d 1092, 1100 (Miss. 2012)). I n other words, “[ u]nless

a d iscrim inatory intent is inherent in t he

. . . explanation, the reason of f ered will b e deem ed race neutral.” Id. at 133 (internal quotation m arks om itted) (quoting Randall v. State , 716 So. 2d 584, 588 (Miss. 1998)). ¶32. In considering a Batson challenge, [ w]e g i v e g r e a t def

erence to the trial court’s f indings o f whether or not a perem ptory challenge was race-neutral.

. . . Such d ef eren ce is necessary because f i nding t hat a striking party engaged in discrim ination i s l a r g e ly a f actual f inding and thus should b e accorded appropriate def erence on appeal.

. . . Indeed, we will not overrule a trial court on a B a t son ruling unless the re c o r d indicates that the ruling was clearly erroneous or against the overwhelm ing weight of

the evidence. . . . Lynch , 877 So. 2 d at 1270 (quoting Walker v. State , 815 So. 2 d 1209, 1214 (Miss. 2002)). ¶33. During jury selection, def ense counsel raised a Batson challenge a f t e r t h e State utilized its perem

ptory strikes against potential j urors 1, 2, 5 , 6, 1 4, a nd 19, all of whom are Af rican-Am erican. The t rial court f ound that b ecause the State had used all of its perem ptory strikes against Af

rican-Am ericans, a prim a f a c ie case of d iscrim ination had been shown. As

1 4a r esult, the trial court required the State to provide a race-neutral reason f or each perem

ptory strike. Potential Juror 1 ¶34. The State explained that it exercised a perem p tory str i k e against potential juror 1 because she was unem

ploy ed a nd had a brother who previously had been convicted of arm ed robbery and had served tim e. Def ense counsel of

f ered no rebuttal. The trial court accepted the State’s race-neutral reasons and allowed the perem p tory strike. Potential Juror 2 ¶35. The State exercised a perem ptory strike against p otential juror 2 because he had been

a r r e sted f or possession of a c ontrolled substance a nd f or d riving u nder the inf

luence i n Madison County , had only been e m ploy ed f o r f i ve m onths, and had a high-school education. Def ense counsel d id not rebut the State’s reasons f or striking potentia l j uror 2. The trial court accepted the State’s race-neutral reasons and allowed the perem ptory strike. Potential Juror 5 ¶36. According to t he State, potential juror 5 h ad an i ncom plete questionnaire and a highschool education. Def

e nse counsel disputed the i ncom plete q uestionnaire and asserted that potential j uror 18, an Af

rican- A me r ican, was accepted with only a high-school education. The State explained that it c hose potential juror 18 because she had b een em ploy ed as a secretary f

or f i f teen y ears at University of Mississippi Medical Center. Although potential juror 5 was em

ploy ed as a research assistant at the Mississippi Departm e nt of Health, she f ailed to indicate how long s he h a d b e e n e m ploy ed. The trial court f

o und that the State’s

1 5reasons were suf f i cient and allowed the perem ptory strike. ¶37. The dissent asserts that “the question of h ow long [ potential j uror 5 ] had worked f or her current e m

ploy er was a q

uestion that the State easily could have asked on v oir dire if it had concerns.” Diss. Op. ¶ 71. But whether the State could have addressed this during voir dire disregards the issue. The issue is not how long p otential juror 5 had b e e n e mploy ed; in s t e a d , the issue is that she f a iled to com

plete her juror questionnaire. Regardless of whether such f

ailure was voluntary or involuntary , it is a legitim a te concern f o r t he State. W h ether she purposef

ully disregarde d the question o r a ccidently om i tted it, her f ailure to

com plete t he questionnaire i ndicates e ither a disregard of direction or a lack of attentiveness. As a result, the State chose to exerc i s e o n e of its perem ptory strikes because of the incom plete questionnaire. Potential Juror 6 ¶38. The S tate exercised a perem ptory strike against potential juror 6 because he had only

a h igh-school education. The State explained again its reasons f or choosing potential juror 18 over the other p otential jurors w ith only a high-school education. The State explained it liked potential juror 18’s dem eanor and body l anguage and described her as “open.” Def ense counsel noted that p o tential ju r o r 6 was em ploy ed as an auto technician at Nissan, which requires “a certain degree of skill.” The State responded that potential j u r o r 8 , w h o w as dism issed f

or cause because he knew Eubanks’s m other, also worked at Nissan, and the State did not w ant to take the risk that they m ight k n o w e a ch other or work together. The trial
court f ound that the State’s reas o n s were not a pretext f or discrim ination and allowed the

1 6perem

ptory strike. ¶39. The dissent f

inds the State’s reasonin g f o r striking potential juror 6 “clearly pretextual” since potential juror 8 stated that he did not know any one else on the jury panel. Diss. Op. ¶ 74. The dissent g oes to great lengths to research the num ber of em ploy ees at the Nissan plant a nd concludes that “the chances t hat two e m plo y e es know one another are slim .” Diss. Op. ¶ 7 4 n.15. W hile we do not dispute the num bers, we note that of the m ore than six thousand em

ploy ees at Nissan, only

two were on the jury p anel. ¶40. Potential juror 8 was d ism issed f o r cause because he knew Eubanks’s m other. W hile potential juror 8 stated that h e did no t p e rsonally know a ny one e l se on the panel, the State chose to exercise a perem ptory strike on potential juror 6 in order to elim inate any risk that the two worked in t he sam e area or departm ent. In other words, the S tate struck the only other Nissan em

ploy ee on the panel and, instead, a ccepted another juror with no af f iliation with or connection to Nissan.

Potential Juror 14 ¶41. The State exercised a perem ptory strike against potential juror 14 b ecause she knew def ense couns e l

. I n response, def ense counsel clarif

ied that she was not raising a Batson challenge as to potential juror 14.

Potential Juror 19 ¶42. The S tate exercised its last perem ptory strike against potential juror 19 because she lived in t he sam e a

partm ent com

plex as codef

endant Pates’s m other, Anita Pates. According

t o t h e S t a te, Anita Pates, “[ ran] her m outh q uite a bit to a lot of dif f erent people an d

1 7com

plained a good b i t.” Anita Pates was not happy with the State and the prosecution of her

s o n a n d “ [ had] talked to any body [ who] would listen about this case . . . .” Th e S t a t e explained it “[ didn’t] want t o take a n angry codef endant’s m other’s potential neighbor.” The trial court f

ound that t h e S t ate’s reasons were n ot pretextual and a llowed t he perem ptory strike. ¶43. The dissent f

inds “no record support” f or the State’s strike of potential juror 19. Diss. Op. ¶ 75. The dissent notes that t he apartm e nt com p lex “has nearly six h undred units” and
states that even if Anita Pates spoke to s om e neighbors, “it seem s unlikely that she reached all six hundred of them .” Diss. Op. ¶ 75 n.16. As with potential juror 6, the S tate chose to exercise one of its p erem

ptory strikes to elim i nate the risk all t ogether. Again, o f the m ore than six hundred a

partm ent residents, only one was on the v enire. The State chose to strike her and accept another juror who did not live near or around the codef endant’s m other. ¶44. The dissent f

inds that the prosecutor “was engaged in an either/or analy sis: he knew he had to accept two black j urors, s o he picked t he ones he l iked ‘best.’” Diss. Op. ¶ 72. But the purpose of voir dire i s to choose the m ost a p p r o priate j urors to hear the case. The prosecutor did n ot “ pick[ ] ” t he jurors “ h e liked ‘best.’” Diss. Op. ¶ 72. I nstead, the State accepted those jurors it determ ined were best suited to hear the case based on the f acts of the case and the inf

o rm ation learned during voir dire. ¶45. I mp o r t a n tly , in Lockett v. State , 517 So. 2d 1346, 1353 (Miss. 1987), this Cou r t of f ered “ racially neutral reasons upheld by other courts in an e f f ort to p rovide som e guidance
to [ the] trial courts.” T hose reasons include: crim inal record, em ploy m ent history , short-term

1 8em

ploy m ent, educational background, arrest of f am ily m em

ber, involvem ent of

relative of juror in a crim e, dem eanor, and incom plete questionnaire or card. Id. at 1356. ¶46. The record shows that the State provided valid rac e -neutral r easons f or each of its perem ptory strikes. Eubanks f

ails to dem onstrate that the reasons given were a pretext f or discrim ination or that a discrim inatory intent was inherent in t he State’s explanation. H.A.S. , 232 So. 3d at 1 33. As a result, t he trial court’s r uling w as not clearly erroneous or against the overwhelm ing weight of the evidence. Lynch , 877 S o. 2d at 1270. A ccordingly , the trial court did not err. III. W hether the trial court e r red by permitting hearsay testimony to establish the essential elements of the charged offenses. ¶47. Eubanks last argues that “ the trial court erred in perm itting hearsay proof to establish

e s s e n tial elem ents of the of f enses charged.” “As an e videntiary m atter, [ this C ourt] review[ s] the trial [ court] ’ s r u l i n g f or an a buse of discretion and will reverse i f the adm ission of evi d e nce results in prejudice t o the accused.” Rogers v . State , 95 S o. 3d 623, 627 (Miss. 2012) (citing Price v. State , 898 So. 2d 641, 653 (Miss. 2005)). ¶48. Eubanks f

ails to cite any authority i n support of this arg u m ent. “The [ appellant’s f ]ailure to cite relevant a u thority obviates the appellate court’s obligation to review such issues.” Batiste v. State , 121 So. 3d 8 08, 861 (Miss. 2 013) ( alteration in original) (internal quotation m arks om itt e d ) (quoting Sim m ons v. State , 8 05 So. 2 d 452, 487 (Miss. 2001)). “Failure t o cite l egal a

uthority in support of an issue i s a procedural bar on appeal.” Carter

v. M iss. Dept. of Corrs. , 8 60 So. 2d 1187, 1193 (Miss. 2003) ( quoting Webb v. DeSoto Cty. , 843 So. 2d 682, 685 (Miss. 2003)). Notwithstanding the procedural bar, Eubanks’s claim is

1 9without m erit.

¶49. “Hearsay ” is def

i ne d a s “ a statem ent t hat: (1) the declarant does n ot m ake while testif y ing at the current trial or hearing; and (2) a party o f f ers in evidence to p rove the truth of the m atter asserted in the statem ent.” Miss. R. Evid. 801(c). ¶50. At trial, the f

ollowing conversation occurred: Prosecutor: Okay

. Did [ Pates] u ltim ately tell y o u who w as involved

with the crim e? Of f icer Ready : He did. Prosecutor: W hat did - who did he tell? Of f icer Ready : He said that he, along with Rahim – Def ense Counsel : Your Honor, I would object to hearsay

. Trial Court: It gets awf ul c l o s e t o s o me substantive proof

. Is there another way

y o u can approach it? Prosecutor: I can rephrase the question

. Trial Court: Do that. Prosecutor: Did . . . Pates ultim ately adm it som e culpability

in this? Of f icer Ready : Yes. Prosecutor: Based on y o ur conversation with . . . Pates, not what he

said, but based on y o ur c onvers a t i o n with him , did y ou develop other suspects? Of f icer Ready : I did. Prosecutor: And who are those potential other suspects? Of f icer Ready : Rahim W illiam s, Michael Tillm an, Fabiy onne Peel, and

Jontavian Eubanks.

2 0¶51. Eubanks asserts that t he trial court erroneously “allowed the State to elicit testim ony

f rom Of f icer Ready

that . . . Pates told him

who was i nvolved with the crim e.” This Court disagrees. W hether t he s uspects were involved with o r actually participated i n t he alleged crim e was not of

f ered through Of

f icer Ready ’ s t e s t i mo n y . Instead, that inf orm ation cam e f rom codef

endant Pates. Of

f icer Ready ’s statem ents sim ply explained t he progression of his investigation. “Statem ents do not constitute hearsay when adm itted to explain an of f icer’s

course of investigation or m otivation f or the next investigatory step by that of f icer.” Sm ith

v. State , 258 So. 3d 292, 309 (Miss. Ct. App. 2018) (internal q uotation m arks om itted) (citing Fullilove v. State , 101 So. 3d 669, 675 (Miss. Ct. App. 2012)). ¶52. Eubanks f

urther asserts that the trial court erroneously allowed B rown to t estif y as to the value of the stolen vehicle. 8 At trial, B r o w n was asked if her f am ily received

com pensation f

rom the insurance com

pany f or the vehicle. In response, B rown stated that her m o ther had received “about $13,000” in com pensation f

o r the vehicle. Eubanks’s

con t e n t i o n that “ the only source of the inf orm ation testif

ied to cam e f

r om w hat [ Brown’s] parents (the owners and insured on the vehicle) told her” is unsupported by the record. Moreover, s u c h testim o ny was adm itted to prove the elem ents of Count III, m otor-vehicle thef t. Eubanks was acq u itted on Count III. As such, no prejudice resulted f rom the adm ission of

such testim ony . CONCLUSION ¶53. W e f

ind no error and af

f irm

.

8 T h e v eh i cle w as d riv en b y B r o w n , b u t it b elo n g ed to h er m o th er, B ev erly B ro w n . 2 1¶54. AFFIRMED.

RANDOLPH, C .J., MAX WELL, BEAM A ND C HAMBERLIN, JJ., CONCUR. COLEMAN, J., CONCURS I N PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY CHAMBERLIN, J.; MAX WELL, J., JOINS IN PART. KING, P.J., DISSE N T S WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND ISHEE, J. COLEMAN, JUSTICE, CONCURRING IN PART AND IN RESULT: ¶55. Missi s s i p p i c o n s i d e rs three f actors, adopted f

rom Ake v. O klahom a , 470 U.S. 68 (1985), when determ ining whether a trial court should order f unding of an expert witness f or

a crim inal def

endant. Lowe v. S

t a t e , 127 So. 3d 178, 182-83 (¶¶ 16-20) ( Miss. 2013); Colem an v. State , 697 So. 2d 777, 782 (Miss. 1997). The f irst is the private interest that w ill be af f ected by the action of the State. The second is the governm ental interest that will be af f ected if the s af

e guard is to be p r ovided. The third is the probable value of the additional o r substitute procedural saf

e guards that are sought, and the r isk of an e rroneous deprivation of the af f ected interest if

those saf eguards are not provided. Lowe , 1 27 So. 3d at 182 (¶ 17) (quoting Ake , 470 U.S. at 77). At the pretrial hearing in the

case s u b judice , the S tate f irst cite d A k e b u t then argued that our cases, including those discussed below a nd by the m ajority , have h e l d t h a t only when the State relies o n expert testim o ny alone to prove a n elem ent of the crim e m ay the def e ndan t h a v e f

u n d ing f or an expert. Because the trial court used the wrong legal standard, I would hold that it erred. ¶56. The t rial court did not, and the m ajority d o e s n o t d i s c u s s t h e above-quoted Ake f actors. In ruling on Eubanks’s m otion f or f unding, the trial court described the controlling law as “abundantly clear” and d e scribed the legal standard as requiring f unding f or a def ense expert only when the State relies on expert testim o ny a l o n e t o p rove an elem ent of the

2 2charged c r im e. Issues of law a re reviewed de novo , Hall v . State , 127 So. 3d 202, 204 (¶ 6) (Miss. 2013) (citing Downs v. State , 962 So. 2 d 1 2 5 5, 1258 ( ¶ 1 0) (Miss. 2007)), and whether the trial court applied an incorrect legal standard to Eubanks’s request is an issue of law. Mallard v. Burkart , 9 5 S o . 3 d 1 264, 1 268-1269 (¶ 10) (Miss. 2012). The trial court erred as a m a tter of law b y apply ing a standard f ar m ore restrictive than the three-f actor Ake
test. ¶57. The m ajority adopts the S tate’s position that because the State did not rely wholly on expert testim ony t o prove any one e l e me n t of the crim e, t he trial court’s denial of expert witness f unding should be af

f irm ed. Maj. Op. ¶ 25. The Court in L owe , Brown v. State , 152 So. 3 d 1146 (Miss. 2014), and Isham v. S t ate , 161 So. 3 d 1 076 (Miss. 2015), indeed held that expert f

unding is required when the State relies o n e xpert testim ony alone to prove an elem ent of an of

f ense; i t d id not, however, l ike the trial court in the instant case, hold that the relianc e of the State on e xpert testim ony alone is the requirem ent f o r f u nding. The narrowness of

such a holding contradicts and constrains the three-f actor Ake test the Lowe Court em ploy ed to reach its holding. Likewise, i t is inconsistent with t he Brown Court’s assertion that “The r elative im portance of the testim ony o f f ered by the S tate’s experts is one factor to consider in assessing t he f airness of the trial.” B rown , 152 S o. 3d at 1166 (¶ 90) (em phasis added) (citing Harrison v. State , 6 35 So. 2d 894, 901 (Miss. 1994)). The m ajority places t oo m any of i ts eggs in one basket a nd com e s too close to holding, consistent with the trial court’s erroneous explication of the standard, that expert f u nding need only be provided when the State relies on an expert witness alone to prove an elem ent of the charged crim e.

2 3¶58. In the e nd, though, the trial court’s error in f ailing to apply the thr e e A k e f a c t o r s to Eubanks’s request was harm less. Harm less-error analy sis prevents “setting aside convictions f or sm all errors or def ects that have little, if any , likelihood of having changed the result of the tri a l

. ” W e do not reverse a conviction f or an erroneous evidentiary ruling unless “the error a d v e r s ely af f ects a substantial right of a party , ” or i n other words, unless the r

uling prejudiced the accused. Thus, where it is “clear bey ond a reasonable doubt that the error did not c ontribute to the v erdict,” we need not reverse the conviction. Sm ith v. State , 136 So. 3 d 4 2 4 , 4 35 (¶ 27) (Miss. 2014) (citations om itted). At trial, Eubanks rested without c alling a witness. The State o f f ered t estim ony o f a co-conspirator who testif i ed about E ubanks’s involvem ent in the crim e and an ey ewitness who s aw Eubanks exit a stolen car. An iPad Mini, stolen during the c rim e i n question, was recovered f rom Eubanks’s hom e. Finally , it is f ar f rom clear that Eubanks would have been entitled to the f unding had the three Ake f actors been correctly

utilized. ¶59. I c o n c u r w i t h t h e m ajority ’s treatm ent of the rem a ining issues r aised by Eubanks. Accordingly , I concur in part and in result. CHAMBERLIN, J., JOINS THIS OPINION. MAX WELL, J ., J O I N S THIS OPINION IN PART. KING, PRESIDING JUSTICE, DISSENTING: ¶60. This Court should f i nd that the trial court clearly erred in its Batson 9 determ ination that no violation o c c u r red, in this case in w hich t he S tate used every available strike on Af rican-Am erican jurors. Theref ore, I respectf

ully dissent. ¶61. “Other than voting, serving on a jury i s the m o st substantial o pp o r t u n i t y t h a t m ost

9 B a tso n v. K

en tu c k 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 4citizens have t o p a r t i c ipate i n the dem ocratic process.” Flowers v. Mississippi , 1 39 S. Ct.

2228, 2238, 204 L. Ed. 2d. 638 (2019). Not only does Batson seek to protect the rights of def endants, it also s eeks t o “protect the rights of

. . . jurors, and to enhance public conf idence in the f airness of the crim inal justice sy stem .” Id. at 2242. Thus, the “eradicat[ i on] of racial discrim ination in the jury selection process” i s a constitutional p rinc i p le that this Court is charged w ith enf

orcing. Id. However, s ince Batson , we have done a poor job of enf orcing both the rights of the potential jurors to b e f ree f rom discrim ination, a nd the r i g h t s of crim inal def

endants to be tried by

a jury f ree f rom the taint of racial discrim ination. 1. Batson in the Mississippi Suprem e Court ¶62. A t t h e o u tset, I note m y concerns that this Court u ses the def erential standard o f review u sed in Batson cases as a shi e l d t o a v o i d holding prosecutors and trial courts accountable. A def

erential standard of review is not (and s hould n ot be) a r ubber stam

p on trial court d ecisions; y e t , t hat is how this Court has wielded it in Batson cases. And prosecutors seem adept at m aking increasingly b etter excuses f or striking Af

rican-Am erican jurors, actions f

or w hich this Court has shown no interest in holding the State accountable. ¶63. The United States Suprem e Court’s d e c i s i o n i n B a t s o n w a s “ f

ounded upon the realities that substantial and invidious racial discrim ination was being practiced in j u r y selection, [ and] that t his was a state-sp o n s o r e d sin[ .]” Davis v. State , 551 S o. 2d 165, 176 (Miss. 1989) ( Robertson, J., c oncurring). Since B atson was decided, this C o urt h as reviewed approxim a tely 117 cases f or race-based, substantive Batson issues. 10 S ee Appendix A. Of

10 I d o n o t co u n t i n th is n u m b er B a tso n issu es raised o n p o st-co n v ictio n relief , B a tso n issu es so lely

d eem ed w aiv ed o r p ro ced u rally b arred , o r B a tso n issu es in w h ich th e case is 2 5those cases, 105 involved s trikes o f Af rican-Am erican jurors and f if t een i nvolved strikes of white jurors. 11 Of the cases i nvolving strikes o f Af rican-Am ericans in which the t rial court f ound no Batson violation, t his Court af f irm ed t he trial court’s f

indings i n one hundr e d of those c ases a nd reversed the trial court i n f ive o f those c ases. Of the thirteen c ases in which the trial court f

ound a Batson violation f or the strike of white jurors, this C ourt af f irm ed the trial court eleven tim es and reversed it twice. This Court af f irm e d the two cases in which the trial court f

ound no Batson violation f or the striking of

white jurors. These num bers paint

a troubling picture o f this Court’s willingness t o allow pr osecutors to exclude black jurors f rom jury service. 12 And the f

ive reversals are certainly nothing to herald. ¶64. In two o f t he reversals, this Court reversed because the State adm itted that it s t ruck black jurors based on r ace. Goggins v. State , 529 S o. 2d 649 (Miss. 1988); Dedeaux v. State , 528 So. 2d 300 ( 1988). In two of the reversals, t he trial court’s f a c tual f indings appeared to explicitly f

ind pretext, y e t the trial court inexplicably allowed the strikes. B erry v. State , 728 So. 2d 568 (Miss. 19 9 9 ) (The trial court r ejected the State’s challenge o f one juror as

rev ersed an d /o r r e m a n d ed d u e to a f ailu re to f

o llo w t h e p r o p e r B a tso n p r o ced u re. T h is n u m b er lik ew ise d o es n o t in clu d e cases d ecid e d o n so lely g en d er o r r e lig io u s claim s. It en co m p asses th e cases in w h ich th is C o u rt rev i ew ed th e trial co u rt ’s d eterm in atio n s reg ard in g w h eth er a p rim a f acie case w as m ad e an d /o r w h eth er p retex t ex isted

. 11 T h e to tal n u m

b ers d o n o t m at ch b ecau se th ree cases in v o lv ed strik es o f b o th A f rican -A m erican an d w h ite j u ro rs.

12 I reco g n i ze t h at th e se n u m b ers d o n o t p ain t a p erf

ect p i ctu re. F o r ex am

p le, w h en trial co u r ts ru le ag a in st t h e S tate o n th ese m a t ters in crim in al cases, th o se ru l in g s w o u ld rarely b e a

p p ealed

. F u rth er, i n sev eral o f th ese cas e s , I ack n o w led g e th at th e reco rd w as in su f f icien t in th at it d id n o t in clu d e racial co m p o sitio n s o f th e j u ry v en ire an d /o r f in al j u ry . H o w ev er, th e n u m

b ers are stark en o u g h f

o r u s t o t ak e n o t i c e o f th ese p a t tern s an d b e co n cern e d

. 2 6pretextual, but allowed the challenge o f a second juror d e s p i t e the State g iving the sam e

reasoning f

or striking t he s econd juror as the f irst juror f

or whose strike pretext was f ound. The Court stated that, a ccording to the record which s hows that the trial court did not know the race of

the second juror, “[ i]t appears that the trial judge was m erely conf used over the racial identif

ications of the jurors involved in the discussion. However, just because the ruling was m ade inadvertently does not m ake it any less erroneous.”); Conerly v. S tate , 544 So. 2d 1370 (Miss. 1 9 8 9 ) ( f o u r to three decision, with t wo justices not participating) (The State struck a black juror, a lleging her jury questionnaire w as im pro perly f

illed out and

seem ed conf

using t o h e r . T h e trial court e x plicitly f o und that her jury q

uestionnaire was properly f illed out. The State did not suggest another racially neutral reason f

or the strike, y et, the trial court allowed t he strike. The Cour t h e l d t hat “[ i]n light of the prosecutor’s f ailure t o articulate a val i d r a ce-neutral reason f or striking J uror Swain, the trial court’s f actual determ ination that she was e ligible and the case law recited above, we have no alternative but to revers e t h i s c a s e . . . .”). The f if th and f inal reversal was decided by a plurality

. Flowers v. State , 947 So. 2d 910 ( Miss. 2007). Four justices a greed that a Batson violation occurred, requiring reversal. Id. at 939. Four j ustices ar g u e d that no Batson violation o ccurred. Id. at 941-43 (Sm ith, C.J., dissenting). One justice argued that the case

was not r eversible based on the Batson issue alo n e , b u t that it should be reversed due to

cum ulative error. Id. at 939-41 ( Cobb, P.J., concurring in result only ). The Flowers case in 2007 is the last tim e this Court has reversed a trial court based on a substantive, versus

2 7procedural, 13 Batson issue. This Court “ac c e p ts that any pretext will pass f o r a racially neutral reason f

o r exclusion.” Davis , 551 So. 2d at 176 (Robertson, J., concurring). “Except

a prosecutor dim wittedly conf ess hi s d iscrim inatory p urpose, or of f er no reason at all in support of h is strike, he m ay w i t h i mp u g n i t y exclude black j urors to the lim it of his perem ptory challenges.” Id. (Robertson, J., concurring) (citations om itted). ¶65. Indeed, f

rom the outset of B atson , this Court has s ought to p rotect prosecutors while disregarding d ef

endants. W hen the U n i ted States Suprem e C ourt m ade clear that Batson applied retroactively to t hose def e ndants whose c ases were pending, t h i s Court f o und that when a def

endant had m ade a prim a f acie case of discrim ination at a pre- Batson trial, “the prosecutor had no way of knowing what showing was required of him .” W illiam s v. State , 507 So. 2d 50, 53 (Miss. 1987). Th u s , “ [ e ] l e me n tary notions of f airness to the State’s prosecution interest requir e t h a t s u c h a n o pportunity now b e af

f orded,” thus requiring rem and f or Batson hearings t o allow the prosecution to explain its s trikes. Id. Yet, when the Court addressed def

endants, who likewise had no w ay of k nowing the rights B atson would af f ord them bef o re it handed down, this Court f ound that a def

endant who f

ailed to object to the jury

com positio n h ad waived his r ight to assert a Batson c laim

. Thom as v. State , 517 So. 2d 1285, 1287-88 (Miss. 1987). ¶66. In the m o re t han thirty y ears since Batson was decided, this Court has sim ply f ailed
to give Batson any teeth whatsoever, all while prose c u t o r s b e com e increasingly savvy in their

13 T h e o n ly o t h er B a tso n r ev ersal f ro m 2 0 0 7 to p r esen t w as a rev e r sal b ased o n th e trial co u rt’s f

ailu re to co n d u ct t h e th ird p art o f th e B a tso n a n a ly sis o n th e issu e o f p retex t, ev en th o u g h th e d ef

en se g av e a race-n eu tral reaso n f o r th e strik e o f a w h i te j u ro r. H a rd iso n v. S ta te , 9 4 S o . 3 d 1 0 9 2 (M iss. 2 0 1 2 )

. 2 8explanations f o r strikes that a re of

ten wildly disproportionate based o n race. That t he United States S upr e me C o u r t r ecently had to r e v erse this Court’s f i ndings on a b latant Batson violation drives this point hom e. Flowers , 139 S. Ct. 2228. 2. Eubanks’s case ¶67. W i th the b ackdrop of this Court’s f ailure to m e aningf

ully enf orce Batson , I turn to the

case at hand, in which the St a t e u s e d e v e ry one of its six perem ptory strikes against black potential jurors. I n reviewing a Batson c lai m, t h i s C o u r t m ust review “all of the circum stances that bear upon the issue of racial a nim o sity

. . . .” Snyder v. Louisiana , 552 U.S. 4 7 2, 478, 128 S

. Ct. 1 203, 170 L. Ed. 2d 175 ( 2008). I a gree with the m ajority that the strikes o n potential jurors one and f ourteen were acceptable. See Davis v . State , 660 So. 2d 1228, 1 242 (Miss. 1995). The strike on potential juror two is problem atic and, while I agree it does not violate Batson , the situation surrounding that strike should be considered in the circum stances exam ined. The strikes of potential j urors f ive, s ix, and n ineteen, however, violated Batson , and the trial court clearly erred in its f inding t h a t these strikes were raceneutral. ¶68. First, the p rim a f

a cie case of discrim ination is strong. T he j u r y v enire c o nsisted of thirty -f i ve m em b e rs, af ter j uror eight was excused f or ca u s e d u ring voir dire. Eight of the

rem aining thirty -f

ive m em bers of the jury venire were Af

rican-Am erican. The eight black venire m e m

b ers were all w ithin t he f

irst eighteen jurors t endered, and the State w as given six perem ptory strikes; thus, the prosecution knew that it would have to allow at l east two black venire m em

bers to be seated on the jury

. The j ury ultim ately included o nly the m i nim um of

2 9two black jurors. The strength of the prim a f acie case is f

urther b olstered by the f

a ct that the prosecution u sed 100 percent of its strikes on black jurors. “The s tronger the prima facie

case, the m ore cogent the explanations f rom the [ S]tate and supporting e vidence m ust be and vice versa.” Mack v. State , 650 So. 2 d 1289 (Miss. 1994). M adison is a ma j o r i t y - w hite county , and the jury venire was m ajority -white, a s well. See Am erican Com m unity Survey , 2018 Census Estim a te, available at http s : //data.census.gov/cedsci/table? q=%20m adison%20county % 20m ississippi%20educat ional%20attainm ent&g=0500000U S 2 8 0 8 9 & l a s t D i s p l a y e d R o w = 5 3 & t a b l e = S 1 501&tid=A CSST1Y2018.S1501&t=Educational%20Attainm ent&lay er=county &m ode= (last visited Dec. 1 8, 2019). “ The p retense that the prosecutor had in mi n d racially neutral reasons f or striking each and every one of these [ six ] b lack potential jurors m a y but call to m ind ‘the eerie atm osphere o f never-never land’ i n which a f o rm er Attorney General of this state once urged, and a U.S. D istric t C o u r t o n c e f ound, t hat Mississippi had no of f icial policy of segregation.” Davis , 551 So. 2d at 177 (Robertson, J., concurring). Thus, the State in this

case m ust give s t r o n ger explanations a nd supporting evidence d ue to the strength of the prim a f acie case of

discrim ination. ¶69. N o t o n l y i s p r e t e x t mo r e h i g h l y suspected when a strong prim a f acie case o f discrim ination exists, it is also m ore highly suspected in certain situations. This Court h a s identif

ied f ive indicia of pretext when analy z ing prof f ered r ace-neutr al reason f or perem ptory strikes u nder B atson : “(1) disparate treatm e nt, that is, the presence o f unchallenged j urors of the opposite race who share the characteristic given as the basis f o r the challenge; (2) the f ailure to voir dire as to the characteristic cited;

. . . (3) the c haracteristic cited is unrelated to the f

acts o f the case;” (4) “lack of record support f or the stated

3 0reason;” and (5) “group-based traits.”

Manning v. State , 765 So. 2 d 5 1 6 , 5 1 9 (Miss. 2000) ( quoting M ack v. State , 650 So. 2d 1289, 1298 (Miss. 1994)).

a. Potential Juror No. 2 ¶70. W h ile I agree that having b een arrested o n possession of a controlled substance and DUI is a race-neutral reason f or a strike, I raise serious concerns over the t rial court’s ref usal
to allow the def

ense to exam ine which j urors the State had investigated, a nd its reliance on unproved outside inf

orm ation. Disp arate investigation of black and white p otential jurors is an indication of pretext. F lowers , 139 S. Ct. at 2243. The def ense cannot hope to m ake

a recor d o f d isparate investigation when the trial court ref uses to allow i t t o access the i n v e s t i g a t ion to m ake that record. It also appears to be a n abdication of the t rial court’ s responsibility to e nsure n e u t r a l i t y , as its r ef usal disallows any one f

rom ensuring that the investigation w a s indeed neutral. Indeed, this Court has cautioned both trial courts and prosecutors against using outside inf orm ation to strike jurors without allowing the def ense to explore that inf

orm ation

. W e h ave “rem ind[ ed] t rial judges of the danger in f ailing to allow counsel to place suf f icient evidence in the record either p roving or rebutting Batson issues.” G

riffin v. State , 607 So. 2d 1197, 1203 (Miss. 1992). W e have f u rther “caution[ ed] prosecutors about using alleged reports o f crim i nal wrongdoing as a basis f or striking a juror without substantiating the allegation either through questioning the j uror o r outside proof .” Id. b. Potential Juror No. 5

3 1¶71. T h e S t a t e ’ s e x p l a n a t i o n s f o r s t r i k ing potential j uror f ive were that he r j u r y questionnaire was i ncom

plete in that it d id not state how long she had worked f or her current

em ploy e r, and because she o nly had a high s c hool e ducat i o n . The State explained that it struck m a ny people with high school educations because o f “technical testim ony ” that was expected. The “technical testim o ny ” expected was in regards to cell phone GPS and pinging technology , which is not

a widely m isunderstood or dif

f i cult to understand technology

. In f act, during voir dire, the State asked several questions regarding this expected t estim ony and asked the jury venire if any one had a problem with that technology or testim o ny . None of the potential jurors indicated having any issues with it. The State f a i led to e xplain why m ore than a h igh school diplom a was necessary to understand such ubiquitous technology ; indeed,

e v e r y s i n g l e juror indicated that t hey owned a c ellular phone. T hus, there i s no indicatio n that a having a high school education is related to the f acts of t he c ase. Moreover, the def ense p ointe d o u t t h a t potential juror f ive was a research assistant at the Mississippi Departm ent of H ealth , a n d was likely c om petent to understand the technical testim ony at issue. The def

e nse also m aintained that the qu e s t i o n of h ow long she had worked f or her
current em

ploy er was a question that t he State e asily could h ave asked on voir dire if it had

concerns. ¶72. The prosecutor m aintained that he seated juror eighteen, who also had a high school education, because she had w orked as a secretary at t he University of Mississippi Medical Center f or f if teen y e ars, so she could f

ollow technical testim ony , as well as because he liked her body langua g e “ b e t t e r . ” First, the body l anguage of a dif f erent juror should have no

3 2bearing on w het h e r j u r o r f ive was struck. If any

thing, it indicates that the prosecutor was engaged in an either/or analy sis: he knew he had to accept two black jurors, 14 so he picked the ones he liked “best.” L iking juror eighteen’s body language “better” i s not an independent reason to s trike juror f ive. Indee d , the prosecutor’s explanation calls to m ind the situation in Foster v. Chatm an in which the prosecutor had indicated which one of the black jurors he would choose if he had t o pick one. See Foster v. Chatm an , 136 S. Ct. 1737, 1744, 195 L. Ed. 2d 1 (2016). F urther, the trial court did not itself m ake an actual f inding regarding juror eighteen’s d e m eanor. Thus, this Court need not presum e that the t rial court credited this explanation. See Snyder , 5 52 U.S. at 479. Because the S tate’s explanations f or striking juror f

ive are not r elated to the f acts of t he case, could have easily been addressed

on voir dire, and indicate that c hoosing b lack jurors was an either/or e xercise in p icking only the m inim um num ber of b lack jurors n ecessary , t he trial court erred by f ailing t o f ind pretext. ¶73. I also point out that a savvy prosecutor in Madison County would likely be aware that,

or at least have the sense that, A f rican-Am ericans in Madison County are less likely to attend college than their white counterparts. Approxi ma t e l y 3 2 percent of A f rican-Am ericans in Madison Count

y have a bachelor’s degree or higher, while approxim ately 69 percent of white non-hispanics have a bachelor’s degree or higher. See Am erican Com m unity Survey , 2018 Census Estim ate, available at

14 T o reiterate, in th e f

i rst eig h teen p o ten tial j u ro rs ten d ered t o t h e S tate (af ter f o rcau se ch allen g es h ad alread y b een ex ercised an d o n e j u ro r d ism issed f o r cau s e ), th e reco rd ref lects th at ei g h t w e r e b lack

. A j u ry co n sists o f tw elv e j u ro rs. T h e S tate h ad six p erem p to ry strik es. E l e me n tal m ath lead s t o t h e co n clu sio n th at t h e S t ate k n e w it h ad to accep t tw o b lack j u ro rs. 3 3https:/ / d ata.census.gov/cedsci/table? q=%20m adison%20county % 20m ississippi%20educat

ional%20attainm ent&g=05000 0 0 U S 2 8 0 8 9 & l a s t D i s p l a y e d R o w = 5 3 & t a b l e =S1501&tid=A CSST1Y2018.S1501&t=Educational%20Attainm ent&lay er=county &m ode= (last visited Decem ber 18, 2019). The prosecutor’s heavy re l i a n c e on educational attainm ent is consequently

concerning.

c. Potential Juror No. 6 ¶74. The State alleged that it struck potential juror si x b e c a u s e s h e h a d a high school education. The def

ense pointed out that this p otential juror was an a uto technician at Nissan, which would r e quire a certain degree of skill, and thus the necessary experience to understand cell phone pinging technology

. For the sam e r easons discussed above f or juror f ive, the e xcuse of high school education lacks a connection to t he f a cts of th e case. Furtherm o re, the State alleged that it did n ot want to risk that juror six k new juror eight, who

was excused f

o r cause because h e knew the def endant’s m other, because they both worked

at Nissan. This excuse is a co m p l e t e f a r ce. Bef ore t he trial court excused juror eight, it specifically asked juror eight i f he knew any one else on the j ury panel, and juror eight replied that he did not. So the State’s “ concern” that juror eight m ay know juror six h ad a lready been addressed and did not exist. 1 5 B ecause the State’s reasoning f or striking juror six was clearly pretextual, the trial court erred by f ailing to seat juror six. d. Potential Juror No. 19

15 M o re th an 6 ,4 0 0 p eo p le w o rk at th e N issan p l an t, so ev en h ad th e S tate’s “co n cern ” n o t alread y b een sp e cif

ically a d d ressed , th e ch an ces th at tw o em p lo y ees k n o w o n e an o th er are slim

. S

ee h ttp s://n issan -can to n .co m /en /ab o u t-n issan -can to n (last v i sited D ec. 1 8 , 2 0 1 9 ). 3 4¶75. The Sta t e a l l e g e d t h a t i t e x c used p otential juror nineteen b ecause the prosecutor

alleged she lived in the sam e a partm ent com

p lex a s a f

orm er codef

e ndant’s m o ther , Anita Pates. He alle g e d that A nita Pates had been quite v ocal in her d ispleasure with her son’s

case. First, no record support exists f or t his reasoning: nothing in t he record i ndicates where Anita Pates lived other than a bare assertion by the p rosecutor o f w h e r e h e thought she lived. 16 Second, when t he trial court asked the jury venire i f i t had heard of the case at hand, no one responded in the positive. The trial court theref ore erred by f

inding that the State’s strike of juror nineteen was not pretextual. ¶76. W h en considering all the circu ms t a n c e s b e aring on r acial a nim o sity , including the strong p r i ma f

a c i e case of discrim ination, the f ailure to a llow the d ef

ense to m ake a f

ull Batson record, t he excuses by the State that lacked record evidence, that did not relate to the f acts of the case, and that could easily have been addressed on voir dire, as well a s the sham

excuse that ha d b e en addressed, the trial court clearly erred in f ailing to f

ind a Batson violation f

or jurors f

i ve, six, and nineteen. For these reasons, I w ould reverse Eubanks’s conviction and rem a nd the case to the trial court f or a new trial. KITCHENS, P.J., AND ISHEE, J., JOIN THIS OPINION.

16 I also n o te th at th e ap artm en t co m p lex in w h ich p o ten tial j u ro r n in eteen liv ed h as n early six h u n d r ed u n its. S ee h ttp s://w w w .ap artm en ts.co m /th e-lin k s-o f

- m ad iso n -co u n ty -can to n -m s/v h q tm h f / (last v isited D e c . 1 8 , 2 0 1 9 ). E v en if M s. P ates d i d liv e in th e sam e co m p l ex a n d d id sp eak to so m e n eig h b o r s, it seem s u n lik ely th at sh e reach ed all six h u n d red o f th e m . 3 5APPENDIX A 1. Jones v. State , 252 So. 3d 574 (Miss. 2018). 2. Thom a s v. State , 249 So. 3d 331 (Miss. 2018). 3. Flowers v. State, 240 So. 3d 1 082 (Miss. 2017), reversed by Flowers v. Mississippi , 139 S. Ct. 2228, 204 L. Ed. 2d 638 (2019); Flowers v. State , 158 So. 3d 1009 (Miss. 2014). 4. H.A.S. E

lec. C ontractors, Inc. v. Hem

phill Const. Co., I

n c. , 232 So. 3d 117 ( Miss. 2016). 5. Cox v. State , 183 So. 3d 36 (Miss. 2015). 6. Hartfield v. State , 161 So. 3d 125 (Miss. 2015). 7. McCoy v. State , 147 So. 3d 333 (Miss. 2014). 8. Corrothers v. State , 148 So. 3d 278 (Miss. 2014). 9. Batiste v. State , 121 So. 3d 808 (Miss. 2013). 10. States v. State , 88 So. 3d 749 (Miss. 2012). 11. Bailey v. State , 78 So. 3d 308 (Miss. 2012). 12. Davis v. State , 76 So. 3d 659 (Miss. 2011). 13. Birkhead v. State , 57 So. 3d 1223 (Miss. 2011). 14. Pitchford v. State , 45 So. 3d 216 (Miss. 2010). 15. Long v. State , 33 So. 3d 1122 (Miss. 2010). 16. Booker v. State , 5 So. 3d 356 (Miss. 2008). 17. Estate of Jones v. Phillips , 992 So. 2d 1131 (Miss. 2008). 18. Pruitt v. State , 986 So. 2d 940 (Miss. 2008). 19. Cham berlin v. State , 989 So. 2d 320 (Miss. 2008). 20. Strickland v. State , 980 So. 2d 908 (Miss. 2008).

3 621. Hicks v. State , 973 So. 2d 211 (Miss. 2007).

22. F lowers v. State , 947 So. 2d 910 (Miss. 2007). 23. Mingo v. State , 944 So. 2d 18 (Miss. 2006). 24. C hester v. State , 935 So. 2d 976 (Miss. 2006). 25. L e v. State , 913 So. 2d 913 (Miss. 2005), overruled on other grounds

. 26. J ones v. State , 904 So. 2d 149 (Miss. 2005). 27. T horson v. State , 895 So. 2d 85 (Miss. 2005). 28. Johnson v. State , 875 So. 2d 208 (Miss. 2004). 29. Lynch v. State , 877 So. 2d 1254 (Miss. 2004). 30. Branch v. State , 882 So. 2d 36 (Miss. 2004). 31. Gaskin v. State , 873 So. 2d 965 (Miss. 2004). 32. P erkins v. State , 863 So. 2d 47 (Miss. 2003). 33. Howell v. State , 860 So. 2d 704 (Miss. 2003). 34. Burnett v. Fulton , 854 So. 2d 1010 (Miss. 2003). 35. Minor v. State , 831 So. 2d 1116 (Miss. 2002). 36. Sm ith v. State , 835 So. 2d 927 (Miss. 2002). 37. Horne v. State , 825 So. 2d 627 (Miss. 2002). 38. Catson v. State , 823 So. 2d 473 (Miss. 2002). 39. Walker v. State , 815 So. 2d 1209 (Miss. 2002). 40. Thom as v. State , 818 So. 2d 335 (Miss. 2002). 41. Mills v. State , 813 So. 2d 688 (Miss. 2002).

3 742. Hicks v. State , 812 So. 2d 179 (Miss. 2002).

43. Randolph v. State , 852 So. 2d 547 (Miss. 2002). 44. Hubbard v. State , 819 So. 2d 1192 (Miss. 2001). 45. Weeks v. State , 804 So. 2d 980 (Miss. 2001). 46. Carter v. State , 799 So. 2d 40 (Miss. 2001). 47. Berry v. State , 802 So. 2d 1033 (Miss. 2001). 48. Drake v. State , 800 So. 2d 508 (Miss. 2001). 49. Snow v. State , 800 So. 2d 472 (Miss. 2001). 50. Stevens v. State , 806 So. 2d 1031 (Miss. 2001). 51. J ohnson v. State , 792 So. 2d 253 (Miss. 2001). 52. Puckett v. State , 788 So. 2d 752 (Miss. 2001). 53. William s v. State , 794 So. 2d 181 (Miss. 2001), o verruled on other grounds

. 54. Overstreet v. State , 787 So. 2d 1249 (Miss. 2001). 55. Baldwin v. State , 784 So. 2d 148 (Miss. 2001). 56. Manning v. State , 765 So. 2d 516 (Miss. 2000). 57. Davis v. State , 767 So. 2d 986 (Miss. 2000). 58. Gary v. State , 760 So. 2d 743 (Miss. 2000). 59. Hum phrey v. State , 759 So. 2d 368 (Miss. 2000), superceded by rule on o ther grounds

. 60. Webster v. State , 754 So. 2d 1232 (Miss. 2000). 61. Jasper v. State , 759 So. 2d 1136 (Miss. 1999). 62. McGilberry v. State , 741 So. 2d 894 (Miss. 1999).

3 863. Edwards v. State , 737 So. 2d 275 (Miss. 1999).

64. Baldwin v. State , 732 So. 2d 236 (Miss. 1999). 65. Taylor v. State , 733 So. 2d 251 (Miss. 1999). 66. Flem ing v. State , 732 So. 2d 172 (Miss. 1999). 67. Berry v. State , 728 So. 2d 568 (Miss. 1999). 68. Finley v. State , 725 So. 2d 226 (Miss. 1998). 69. Gibson v. State , 731 So. 2d 1087 (Miss. 1998). 70. Sewell v. State , 721 So. 2d 129 (Miss. 1998). 71. M agee v. State , 720 So. 2d 186 (Miss. 1998). 72. Walters v. State , 720 So. 2d 856 (Miss. 1998). 73. B rewer v. State , 725 So. 2d 106 (Miss. 1998). 74. Manning v. State , 726 So. 2d 1152 (Miss. 1998), overruled on other grounds

. 75. Randall v. State , 716 So. 2d 584 (Miss. 1998). 76. Booker v. State , 716 So. 2d 1064 (Miss. 1998). 77. Woodward v. State , 726 So. 2d 524 (Miss. 1997). 78. McFarland v. State , 707 So. 2d 166 (Miss. 1997). 79. L ester v. State , 692 So. 2d 755 (Miss. 1997), overruled on other grounds

. 80. Sim o n v. State , 688 So. 2d 791 (Miss. 1997). 81. Collins v. State , 691 So. 2d 918 (Miss. 1997). 82. J ackson v. State , 684 So. 2d 1213 (Miss. 1996). 83. Walker v. State , 671 So. 2d 581 (Miss. 1995).

3 984. Davis v. State , 660 So. 2d 1228 (Miss. 1995).

85. Carr v. State , 655 So. 2d 824 (Miss. 1995). 86. Mack v. State , 650 So. 2d 1289 (Miss. 1994). 87. F oster v. State , 639 So. 2d 1263 (Miss. 1994). 88. Harper v. State , 635 So. 2d 864 (Miss. 1994). 89. Chase v. State , 645 So. 2d 829 (Miss. 1994). 90. H atten v. State , 628 So. 2d 294 (Miss. 1993). 91. S im on v. State , 633 So. 2d 407 (Miss. 1993). 92. Dedeaux v. J.I. Case Co., Inc. , 611 So. 2d 880 (Miss. 1992). 93. Griffin v. State , 610 So. 2d 354 (Miss. 1992). 94. Griffin v. State , 607 So. 2d 1197 (Miss. 1992). 95. Russell v. State , 607 So. 2d 1107 (Miss. 1992). 96. Abram v. State , 606 So. 2d 1015 (Miss. 1992), overruled on other grounds

. 97. Bush v. State , 597 So. 2d 656 (Miss. 1992). 98. Hansen v. State , 592 So. 2d 114 (Miss. 1991). 99. G ovan v. State , 591 So. 2d 428 (Miss. 1991). 100. W illie v. State , 585 So. 2d 660 (Miss. 1991), overruled on other grounds

. 101. Mackbee v. State , 575 So. 2d 16 (Miss. 1990). 102. Turner v. State , 573 So. 2d 657 (Miss. 1990). 103. B radley v. State , 562 So. 2d 1276 (Miss. 1990). 104. S udduth v. State , 562 So. 2d 67 (Miss. 1990).

4 0105. D ennis v. State , 555 So. 2d 679 (Miss. 1989).

106. B enson v. State , 551 So. 2d 188 (Miss. 1989). 107. D avis v. State , 551 So. 2d 165 (Miss. 1989). 108. C onerly v. State , 544 So. 2d 1370 (Miss. 1989). 109. M cDonald v. State , 538 So. 2d 778 (Miss. 1989). 110. W heeler v. State , 536 So. 2d 1347 (Miss. 1988). 111. C hisolm v. State , 529 So. 2d 635 (Miss. 1988). 112. G oggins v. State , 529 So. 2d 649 (Miss. 1988). 113. C hisolm v. State , 529 So. 2d 630 (Miss. 1988). 114. D edeaux v. State , 528 So. 2d 300 (Miss. 1988). 115. J o hnson v. State , 529 So. 2d 577 (Miss. 1988). 116. T aylor v. State , 524 So. 2d 565 (Miss. 1988). 117. L ockett v. State , 517 So. 2d 1346 (Miss. 1987).

4 1