Opinion
No. 2003-CT-01686-SCT.
August 31, 2006.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. JAMES E. GRAVES, JR., DATE OF JUDGMENT: 09/25/2001
DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE CIRCUIT COURT IS REINSTATED AND AFFIRMED. CONVICTION OF TWO COUNTS ARMED ROBBERY AND SENTENCES OF LIFE IMPRISONMENT, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED
ATTORNEY FOR APPELLANT: THOMAS W. POWELL
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: W. DANIEL HINCHCLIFF
DISTRICT ATTORNEY: ELEANOR FAYE PETERSON
EN BANC.
ON WRIT OF CERTIORARI
¶ 1. Jerry McGee was convicted of two counts of armed robbery by a Hinds County Circuit Court jury and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. The Court of Appeals reversed the judgment of conviction. See McGee v. State , ___ So. 2d ___, 2005 WL 2739827 (Miss.Ct.App. 2005). We reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the circuit court.
FACTS
¶ 2. On January 4, 2000, McGee approached two women with an unloaded .12 gauge pistol grip shotgun, which was wrapped up in a yellow cloth, and demanded their money. The women testified they never saw the gun, but they could tell it was a gun under the yellow cloth. The women screamed and ran, and McGee grabbed one of their purses. A nearby security guard heard the screams and saw McGee running toward him with a purse. When the guard gave chase, McGee threw the purse at the guard. The guard tackled McGee, and the shotgun fell to the ground. The guard was able to restrain McGee until police arrived. A Jackson police officer testified that he saw the shotgun on the ground with a yellow cloth wrapped around the handle. He retrieved the gun but left the yellow cloth. McGee signed a confession but denied that he ever exhibited the shotgun or pointed it at the victims.
¶ 3. McGee was indicted during the January 2000 term of the grand jury, but was never arraigned. On March 8, 2001, McGee wrote a letter to the circuit court administrator requesting a speedy trial. McGee's trial began on September 6, 2001. A mistrial was declared because of a hung jury. The case went to trial a second time on September 24, 2001 resulting in a conviction. The Court of Appeals reversed finding that gender discrimination by the State in the selection of the jury warranted a new trial under the plain error doctrine. We granted the State's petition for writ of certiorari and now consider the issue of gender discrimination during jury selection.
DISCUSSION
WHETHER THE COURT OF APPEALS ERRED IN REVERSING McGEE'S CONVICTION.
¶ 4. McGee raised a Batson challenge during voir dire arguing the State was impermissibly striking African-American jurors. The prosecutor gave gender as her race-neutral reason for striking a juror:
When a Batson challenge is raised, a three-pronged inquiry ensues. First, the party objecting to the peremptory challenge must make a prima facie showing that race was the criteria for the exercise of the peremptory strike. Lynch v. State , 877 So.2d 1254, 1270-71 (Miss. 2004). Second, the burden shifts to the party who exercised the challenge to give a race-neutral reason for exercising the peremptory strike. Id. at 1271. Finally, the trial court determines whether the party objecting to the peremptory strike has shown the presence of purposeful discrimination in the strike use. Id. at 1272. See Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
BY THE STATE: Your Honor, on panel number 5 juror number 4, Mr. Washington. I actually liked him. He has a college education, is well-educated except for the fact that his brother apparently was convicted in a drug trial in Madison County, and that did give me some concern. That was the reason I struck him.
BY THE COURT: But Ms. Deandrea's [another juror] mama was convicted of a drug crime in Hinds County. You didn't strike her.
BY THE STATE: I agree, Your Honor.
BY THE COURT: Tell me the difference between her and a black man whose [brother was convicted].
BY THE STATE: Well, Your Honor, it's difficult to take it on a juror by juror basis. I took these jurors as a whole. There weren't any specific things other than the way they-like I said with Mr. Washington, it concerned me that his brother was in Madison County.
Q. But Ms. Deandrea's mama being convicted didn't concern you?
A. And, Your Honor, the reason I don't like trying to do these Batson challenges piecemeal is because it's difficult because there are going to be jurors as we go along throughout this panel that I absolutely accept that are African-Americans that have relatives that have convictions. So it's difficult for me to explain in one case when —
Q. Right now all I'm asking you is explain why you weren't concerned about Ms. Deandrea's mother who has this conviction for a drug offense.
A. Your Honor, that did concern me. The other reason B and it had nothing to do with Mr. Washington's race B it's that he's a male. And I don't know if gender is discrimination or something, but Ms. Deandrea is a female, so between the two, a female or a male, I would rather have a female, you know, taking criminal convictions, if that family member have [sic] criminal convictions.
¶ 5. McGee made no objection to the State's use of gender as a race-neutral reason for excluding the juror. The Court of Appeals characterized defense counsel's failure to object as a failure to raise a Batson issue and found that neglecting to raise such an objection would normally bar McGee's argument concerning the State's use of gender in jury selection. McGee , 2005 WL 2739827, at *2-3; see also Weeks v. State , 804 So. 2d 980, 987 (Miss. 2001). Despite the purported procedural bar, the Court of Appeals reviewed the issue of the juror's exclusion by relying on McGee's right to raise the issue for the first time on appeal under the plain error doctrine. McGee , 2005 WL 2739827, at *4. The Court of Appeals found the State's on-the-record admission of gender discrimination cast doubt on the integrity of McGee's entire trial and reversed his conviction and remanded the case for a new trial.
¶ 6. Batson and its progeny anticipated a defendant's struggle to show a prosecutor's use of peremptory challenges to rid a jury of members of a specific group based on some distinct characteristic like race or gender. See Batson , 476 U.S. at 92-95; J.E.B. v. Alabama , 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). The language of Batson , however, clearly applies to situations where a pattern of discrimination is present in one party's use of its peremptory challenges. See Batson , 476 U.S. at 96-98; Horne v. State , 819 So.2d 1186, 1188 (Miss. 2001); Randall v. State , 716 So.2d 584, 587 (Miss. 1998). The present case, however, did not involve the systematic exclusion of males from a jury but only the exclusion of a single male juror. The State's use of gender as a reason for the exclusion of a male juror from the jury panel violated McGee's rights under the equal protection clause. See J.E.B. , 511 U.S. at 130-31. Such an exclusion, however, cannot be characterized as a Batson violation because it lacks the distinctive pattern of strikes anticipated by Batson. The failure to object to the State's actions during jury selection normally bars the defendant from raising the issue on appeal. Spicer v. State , 921 So. 2d 292, 309 (Miss. 2006) (citing Williams v. State , 684 So.2d 1179, 1203 (Miss. 1996)); see also Chase v. State , 645 So. 2d 829, 843-44 (Miss. 1994) (where we applied a procedural bar to a Batson issue when the defendant failed to raise it during his trial).
¶ 7. We now consider whether it was error for the Court of Appeals to consider and reverse McGee's conviction under the plain error doctrine. A finding of plain error is necessary when a party's fundamental rights are affected, and the error results in a manifest miscarriage of justice. Williams v. State , 794 So.2d 181, 187-88 (Miss. 2001). To determine if plain error has occurred, we must determine "if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial." Cox v. State , 793 So.2d 591, 597 (Miss. 2001) (relying on Grubb v. State , 584 So.2d 786, 789 (Miss. 1991); Porter v. State , 749 So.2d 250, 260-61 (Miss.Ct.App. 1999)).
¶ 8. Allowing the State to exclude the potential juror based on his gender was indeed a deviation from sound precedent. See J.E.B. , 511 U.S. at 139-41; Duplantis v. State , 644 So.2d 1235, 1246 (Miss. 1994). The record undoubtedly shows the prosecutor had a discriminatory intent in her attempt to prevent Washington from being seated as a juror. The question of whether the error prejudiced the outcome of the trial must still be answered. While the record does not record the specific gender of each juror, we can deduce from the jurors' names that at least five, and possibly six, of the twelve jurors were male. We cannot say, and McGee has not argued, the omission of one male juror from a substantially gender-equal jury prejudiced the outcome of the trial. See Bozeman v. State , 836 So.2d 788, 791 (Miss.Ct.App. 2002) (defendant's attempt to have a constitutional issue he neglected to raise at trial reviewed under plain error was rejected for failure to claim the purported lower court error prejudiced the outcome of his trial court proceedings). Additionally, McGee's failure to object to the exclusion of the juror based on the gender discriminatory reason provided by the State may show that defense counsel made an intentional decision not to object. See Turner v. State , 573 So.2d 657, 663 (Miss. 1990) (finding that a failure to object may be a tactic utilized as part of a defendant's trial strategy). Because McGee has failed to show that the strike of one male juror on his relatively gender-equal jury prejudiced the outcome of his trial, we do not find that plain error occurred when the circuit court judge accepted the prosecutor's race neutral, albeit gender-biased, reason for excluding Washington.
CONCLUSION
¶ 9. We reverse the Court of Appeals' judgment utilizing the plain error doctrine to reverse McGee's conviction and reinstate and affirm the judgment and sentence imposed by the circuit court.
¶ 10. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE CIRCUIT COURT IS REINSTATED AND AFFIRMED. CONVICTION OF TWO COUNTS OF ARMED ROBBERY AND SENTENCES OF LIFE IMPRISONMENT, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SMITH, C.J., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY COBB, P.J., AND DIAZ, J. GRAVES, J., NOT PARTICIPATING.
¶ 11. This case presents us with an unusually stark and clear episode of a prosecutor violating the fundamental constitutional rights of both the accused and a prospective juror by excluding the juror because of his gender. When challenged by the Court as to whether her peremptory strike was racially motivated, the prosecutor unambiguously stated on the record that she was exercising a peremptory strike on Juror Washington, not because of his race, but because "he's a male." The prosecutor attempted to justify this discriminatory strike by saying, "[a]nd I don't know if gender is discrimination or something, but Ms. Deandrea is a female, so between the two, a female or a male, I would rather have a female. . . ." Suffice it to say, the prosecutor in this case engaged in blatant, impermissible discrimination.
¶ 12. The majority does not deny that it happened, but rather admits that "[t]he prosecutor gave gender as her race-neutral reason for striking a juror." Nevertheless, the majority does not find that this obvious constitutional violation of a fundamental right merits a new trial.
¶ 13. Because of my deep respect for my colleagues in the majority, I have labored long and hard over this case in an effort to discover whether I may have overlooked some valid point made and understood by the majority. If it exists, it continues to escape me, and I remain convinced that the majority is in error. I therefore must respectfully dissent.
¶ 14. This analysis begins by recognizing (as does the majority) that the law pertaining to racial discrimination in jury selection applies equally to gender discrimination. Undeniably, lawful discrimination based upon gender in jury selection continued long after the United States Supreme Court held in Strauder v. West Virginia , 100 U.S. 303, 310, 25 L. Ed. 664 (1880), that purposeful exclusion of jurors based on race violates the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution. In fact, the Strauder Court specifically held that the State "may confine the selection [of jurors] to males." Id.
¶ 15. This wall of discrimination began to crumble, though, in 1946 when the Court held that, in states where local law allowed women to serve on juries in state court, women could not be excluded from the venire in federal court. Ballard v. United States , 329 U.S. 187, 193, 67 S. Ct. 261, 91 L. Ed. 181 (1946). The coup de gras was delivered in 1994 when the Court held in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994) that "[d]iscrimination in jury selection, whether based on race or on gender" violates the Equal Protection Clause of the Fourteenth Amendment. 511 U.S. at 140. The Court went on to state
Mississippi continued to prohibit women from serving on juries as late as 1961. See J.E.B. v. Alabama ex rel. T.B. , 511 U.S. 127, 132 n. 3, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994) (citing Hoyt v. Florida , 368 U.S. 57, 62, 82 S. Ct. 159, 7 L. Ed. 2d 118 (1961)).
the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man. As with race, the `core guarantee of equal protection, ensuring citizens that their State will not discriminate . . ., would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors' [gender].
Id. at 146 (quoting Batson v. Kentucky , 476 U.S. 79, 97-98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)). The J.E.B. Court also stated that "[f]ailing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself." 511 U.S. at 145. Thus, any discussion of the law pertaining to racial discrimination in jury selection applies equally to discrimination based upon gender.
I. A pattern of discrimination is not required
¶ 16. The majority incorrectly reads controlling precedent to require a "distinctive pattern" of discrimination. On this point, the majority is clearly in error.
¶ 17. Claims of discrimination in the exercise of peremptory strikes of potential jurors have become known as " Batson challenges." Although the Supreme Court's decision in Batson postdated Strauder by over a century, Batson provides significant elaboration and the process to be followed when discrimination in jury selection is suspected.
¶ 18. In Batson , the prosecutor used peremptory strikes to exclude all four African-Americans on the venire, and the defendant was convicted by an all-white jury. 476 U.S. at 83. Relying on Swain v. Alabama , 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), the Supreme Court of Kentucky affirmed the conviction, stating "a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire." Batson , 476 U.S. at 84. In reversing the Kentucky court, the United States Supreme Court made it crystal clear that to prevail on a " Batson challenge," a defendant is not required to demonstrate a pattern or multiple instances of discrimination:
In fact Batson overruled Swain to the extent that case required a petitioner to establish a systematic pattern of discrimination in jury selection in order to prevail. Batson , 476 U.S. at 100.
[T]his Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. These decisions are in accordance with the proposition, articulated in Arlington Heights v. Metropolitan Housing Development Corp., that `a consistent pattern of official racial discrimination' is not `a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act' is not `immunized by the absence of such discrimination in the making of other comparable decisions.' 429 U.S. at 266 n. 14. For evidentiary requirements to dictate that `several must suffer discrimination' before one could object, McCray v. New York, 461 U.S. at 965 (Marshall, J., dissenting from denial of certiorari), would be inconsistent with the promise of equal protection to all.
Batson , 476 U.S. at 95-96 (first emphasis in original; remaining emphasis added).
While a pattern of strikes against a set of jurors can give rise to an inference of discrimination, the prosecutor questions and statements during voir dire examination and in exercising his challenges may [also] support . . . an inference of discriminatory purpose. Batson , 476 U.S. at 97 (emphasis added). This is precisely the scenario presented for our consideration in this case.
¶ 19. In light of this clear guidance in Batson , I am unable to follow the majority's thinking when it finds that the gender discrimination which occurred in this case "cannot be characterized as constituting a Batson violation because it lacks the distinctive pattern of strikes anticipated by Batson. " Thus, I conclude the majority is in error in refusing to order a new trial based upon its incorrect interpretation of Batson and its requirements.
II. Batson protects the rights of both the defendant and the potential juror
¶ 20. My disagreement with the majority is also grounded on the majority's exclusive focus on the question of whether Jerry McGee's constitutional rights were violated. I find the conclusion inescapable that the discriminatory exclusion of Juror Washington violated his own constitutional rights as well.
¶ 21. The Batson Court squarely addressed this issue. After establishing that "[p]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection," id. at 86, the Court went on to say
[r]acial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. See Thiel v. Southern Pacific Co., 328 U.S. 217, 223-24. A person's race simply `is unrelated to his fitness as a juror.' Id. at 227 (Frankfurter, J., dissenting). As long ago as Strauder, therefore, the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror. 100 U.S. at 308.Batson , 476 U.S. at 87. The Court later, in J.E.B. , echoed this holding and applied it to discrimination based on gender:
In recent cases we have emphasized that individual jurors themselves have a right to nondiscriminatory jury selection procedures. [Citations omitted.] Contrary to respondent's suggestion, this right extends to both men and women. See Mississippi Univ. For Women v. Hogan, 458 U.S. at 723 (that a state practice `discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review'). . . . All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination.
J.E.B. , 511 U.S. at 140-142. Thus, it seems to me beyond debate that the prosecutor in this case violated not only the constitutional rights of Jerry McGee, but also those of Juror Washington.
III. Plain error B requirement of prejudice
¶ 22. The majority appears to conclude that the exclusion of Juror Washington based on his gender was, indeed, plain error. However, because the defendant did not demonstrate that the constitutional violation prejudiced the outcome of his trial, reversal is not required. In my view, this conclusion is manifestly incorrect for two reasons.
1. Certain errors are never harmless
¶ 23. First, in the context of harmless error analysis, the United States Supreme Court has categorized constitutional errors into two groups: trial errors and framework errors. Trial errors are those "which occur during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determined whether its admission was harmless beyond a reasonable doubt." Arizona v. Fulminante , 499 U.S. 279, 307-08, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). These errors are subject to harmless error analysis.
¶ 24. Certain errors, however, may never be considered harmless. These include constitutional deprivations involving a "structural defect affecting the framework within which the trial proceeds," rather than an error in the trial itself. Id. at 310. Clearly, the discriminatory striking of a juror based on his gender directly impacts the integrity of the judicial process and "affect[s] the framework within which the trial proceeds." Id. Cf. Vasquez v. Hillery , 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986) (unlawful exclusion of African-Americans from grand jury is not subject to harmless error analysis).
¶ 25. Where, as here, a clear, unambiguous violation of a defendant's fundamental constitutional rights affects the structure of the trial itself, this Court should not excuse that violation because of the defendant's inability or failure to demonstrate prejudice. I am forced to wonder how any defendant in McGee's position could satisfy the majority's requirement of a showing of prejudice. The majority implies that the five or six males on McGee's jury represented the "male point of view," so the exclusion of one more man could not have prejudiced the defendant. However, this conclusion is anathema to the United States Supreme Court's guiding principle in J.E.B. that gender stereotypes and generalizations have no place in the courtroom. 511 U.S. at 140. The majority would have the defendant pinpoint and demonstrate the prejudice he suffered in the outcome of his trial, an impossible task since the framework of the trial was compromised.
¶ 26. This Court has held "that a finding of plain error is necessary when a party's fundamental rights are affected." Williams v. State , 794 So.2d 181, 188 (Miss. 2001) (citing Grubb v. State , 584 So.2d 786, 789 (Miss. 1991)). The United States Supreme Court has also categorized as plain error "those errors that `seriously affect the fairness, integrity or public reputation of judicial proceedings.'" United States v. Young , 470 U.S. 1, 15, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985) (quoting United States v. Atkinson , 297 U.S. 157, 160, 56 S. Ct. 391, 80 L. Ed. 555 (1936)). Regardless of whether a defendant can demonstrate prejudice, we should not excuse discrimination when it infects our judicial system:
Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. The litigants are harmed by the risk that the prejudice that motivated the discriminatory selection of the jury will infect the entire proceedings. See Edmonson, 500 U.S. at 628 (discrimination in the courtroom "raises serious questions as to the fairness of the proceedings conducted there."). The community is harmed by the State's participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders.
J.E.B. , 511 U.S. at 140.
¶ 27. There must be clear and certain consequences to the blatant violation of a fundamental constitutional right. To hold otherwise is to free the State to commit those violations so long as the case against the defendant is strong. When we emasculate fundamental rights by expanding exceptions, we create a disincentive for the protection of those rights. The erosion of constitutional rights inevitably leads to ignorance on the part of some that those rights even exist. As the United States Supreme Court has explained, [t]he message it sends to all those in the courtroom, and all those who may later learn of the discriminatory act, is that certain individuals, for no reason other than gender, are presumed unqualified by state actors to decide important questions upon which reasonable persons could disagree. Id. at 141. We should not permit such a message to be broadcast to the citizens of Mississippi.
Indeed, the prosecutor in this case was completely unaware that gender discrimination was unconstitutional.
2. Constitutional rights of the juror
¶ 28. My second reason for disagreeing with the majority conclusion on the issue of plain error is the majority failure to consider the violation of Juror Washington constitutional right to not be excluded from jury service simply because of his gender. As stated above, individual jurors themselves have a right to nondiscriminatory jury selection procedures. Id. at 140-41. And if we were to require Juror Washington to demonstrate prejudice in this case, it seems to me the prejudice is quite obvious; he was sent home.
¶ 29. For the reasons stated, and with the highest respect for the majority, I dissent. I would affirm the Court of Appeals judgment, reverse the trial court judgment, and remand this case for a new trial, free of violation of the constitutional rights of the defendant and the prospective jurors.