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CARL DANIEL LOCKETT v. STATE OF MISSISSIPPI

SEPTEMBER 30, 1987

CARL DANIEL LOCKETT
v.
STATE OF MISSISSIPPI



EN BANC.

DAN LEE, P.J., FOR THE COURT:

Carl Daniel Lockett appeals his conviction of capital murder and death sentence for the murder of Geraldine Calhoun. Lockett's separate appeal of his conviction of capital murder and second death sentence for the related murder of Geraldine's husband, John Calhoun, also is today affirmed. Lockett v. State, DP-64, decided September 30, 1987 (not yet reported) (hereinafter Lockett I).

The facts of this case flow from the double murder of John and Geraldine Calhoun, prominent residents of the Puckett community in Rankin County, Mississippi. The brutal details of the slayings are graphically set forth in Lockett I and need not be recited here.

 Lockett's trial for the killing of Geraldine Calhoun proceeded after he had been sentenced to death for the killing of John Calhoun. Evidence presented in the two cases is strikingly similar, both in substance and order of presentation. Trial proceedings in the present case, however, evidence a unique feature unrelated to the trial in Lockett I, i.e., the presence of a timely jury selection challenge based on Batson v. Kentucky, ___ U.S. ___, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Many assignments of error in the two appeals are similar and those assignments substantially controlled by Lockett I will be discussed following our discussion of the assignments unique to this case.

 I.

 Did the State's Racially Discriminatory Abuse of Peremptory Challenges Violate Mr. Lockett's Rights to a Representative Jury and Equal Protection under the Sixth and Fourteenth Amendments?

 Lockett initially complains of the lower court's handling of jury selection and specifically invokes the relatively new protections of Batson v. Kentucky, ___ U.S. ___, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). While we have heretofore addressed both the questions of retroactive application of Batson, see Harper v. State, 510 So.2d 530 (Miss. 1987), Williams v. State, 507 So.2d 50 (Miss. 1987), Caldwell v. State, Cause No. DP-30 (decided ____________, 1987), and the procedural burden borne by one raising the issue for appellate review, see Jones v. State, Cause No. DP-60 (decided __________, 1987), Thomas v. State, Cause No. 56,423 (decided __________, 1987), we address for the first time in this case the question of whether the prosecutor's peremptory challenges on minority veniremen were supported by "neutral explanation(s) related to the particular case to be tried." Batson, ___ U.S. ___, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Concomitant to our examination of the district attorney's motives, we are required to briefly delineate the components of a Batson claim and the proper role of an appellate court in reviewing

 a trial court's handling of the issue.

 The record reflects that during voir dire, the district attorney alerted the court to the rendition of Batson v. Kentucky, decided only a few days prior to the beginning of Lockett's trial. To forestall any Batson issue and to fully develop the record, the prosecutor volunteered to state into the record reasons for all peremptory challenges exercised by the state. In this context, the prosecutor proceeded to strike the five black veniremen from the panel. On proper defense objection, the trial judge entertained the prosecutor's explanation of the strikes and ultimately held them to be racially neutral. Lockett's counsel reiterated his jury challenge in his motion for new trial and filed a separate assignment of error on this ground.

 A. The Command of Batson.

 In Batson v. Kentucky, supra, the United States Supreme Court finally accepted the oft-extended invitation to reassess the viability of the rule of law protecting minority defendants from the systematic exclusion through peremptory challenge of minority veniremen from jury panels. Specifically, Batson appeared before the high court for reexamination of

 that portion of Swain v. Alabama, 380 U.S. 202 (1965), concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State's use of peremptory challenges to exclude members of his race from the petit jury.

 ___ U.S. at ___, 106 S.Ct. at 1714, 90 L.Ed.2d at 77. Approaching the issue from an equal protection slant rather than the "fair cross-section" argument proposed by Batson's attorneys, the Court held, in pertinent part, that

 . . . a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence conerning the prosecutor's exercise of peremptory challenges at the defendant s trial. To establish such a case, [the defendant must first show that he is a member of a cognizable racial group.] * Castaneda v. Partida, supra, at 494, 51 L.Ed.2d 498, 97 S.Ct. 1272, [and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race.] * Second, the [defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate
 who are of mind to discriminate." ] * Avery v. Georgia, supra, at 562, 97 L.Ed. 1244, 73 S.Ct. 891. Finally, [the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.] * This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

 ___ U.S. at ___, 106 S.Ct. at 1722-23, 90 L.Ed.2d at 87. (emphasis added). See also, U. S. v. Mathews, 803 F.2d 325 (7th Cir. 1986).

 It is thus clear under Batson's express terms that a defendant raising a Batson claim must show

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

 2. That the prosecutor has exercised peremptory challenges toward the elimination of veniremen of his race, and

 3. That facts and circumstances infer that the prosecutor used his peremptory challenges for the purpose of striking minorities.

 In sum, these components constitute the prima facie showing of discrimination necessary to compel the state to come forward with a neutral explanation for challenging black jurors. "*fn1 Batson, ___ U.S. at ___, 106 S.Ct. at 1723, 90 L.Ed.2d at 88.

 We need not engage in a careful analysis of Lockett's zeal in raising this issue in light of the prosecutor's voluntary adherence to that part of Batson dealing with expression of his motives for minority challenges. We thus assume for purposes of this opinion that a prima facie showing was made, triggering the mandate that the prosecutor present" `a clear and reasonably specific' explanation of his `legitimate reasons' for exercising the challenges. "Id. 106 S.Ct. at 1723, 90 L.Ed.2d at 88, n.20.

 These explanations form the object of our scrutiny. They do not, however, clearly answer an equally important threshold question centering in the scope and form of review by which we should conduct our analysis. Batson clearly places upon the trial court the duty to determine whether purposeful discrimination has been shown and likens this fact to analogous findings in a Title VII sex discrimination suit. These findings largely turn on credibility and thus Batson states that" ordinarily, "

 a reviewing court should give the trial court" great deference. "Id. at ___, 106 S.Ct. at 1724, 90 L.Ed.2d at 89, n. 21.

 " Great deference "has been defined in the Batson context as insulating from appellate reversal any trial findings which are not clearly erroneous. United States v. Mathews, supra; Gamble v. State, 357 S.E.2d 792, 794 (Ga. 1987); State v. Butler, 731 S.W.2d 265, 271 (Mo.Ct.App. 1987); Yarbough v. State, 732 S.W.2d 87, 91 (Tex.Ct.App. 1987); Rodgers v. State, 725 S.W.2d 477, 480 (Tex.Ct.App. 1987); Chambers v. State, 724 S.W.2d 440, 442 (Tex.Ct.App. 1987).

 We today follow the lead of other courts who have considered this issue and hold that a trial judge's factual findings relative to a prosecutor's use of peremptory challenges on minority persons are to be accorded great deference and will not be reversed unless they appear clearly erroneous or against the overwhelming weight of the evidence. This perspective is wholly consistent with our unflagging support of the trial court as the proper forum for resolution of factual controversies.

 Where the judge makes findings of fact.

 See, e.g., Tommy Lee Ford v. Lamar Life Ins. Co., No. 56,480, decided August 26, 1987 (not yet reported) (chancellor's finding of fact will not be disturbed on appeal unless manifestly wrong; Brown v. Williams, 504 So.2d 1188 (Miss. 1987) (same); Dillon v. Dillon, 498 So.2d 328, 330 (Miss. 1986) (same); Country Club of Jackson v. Saucier, 498 So.2d 337, 339 (Miss. 1986) (same); Wiley v. State, 465 So.2d 316, 320 (Miss. 1985) (same); Cf., Neal v. State, 451 So.2d 743, 756 (Miss. 1984) (same); See also Merrill v. State, 482 So.2d 1147, 1151 (Miss. 1986) (citing Neal v. State).

 Where the trial court determines the reliability of an in-court identification. See e.g., Ray v. State, 503 So.2d 222, 223-24 (Miss. 1986) (" We may, of course, disturb such a finding only where there is an absence of substantial credible evidence supporting it.); Compare, J. L. Teel Co., Inc. v. Houston United Sales, Inc., 491 So.2d 851, 859 (Miss. 1986) (a circuit court's finding of fact will not be disturbed if there be "substantial supporting evidence.").

 B. Sufficiency of the Batson Challenges.

 With our review so focused, we turn to the present facts to assess whether the trial court erred in deciding that the prosecutor did not ...


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