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MAY 10, 1989




Willie Ray Conerly was indicted by a Pearl River County Grand Jury on a charge of armed robbery and was tried August 21, 1986, which trial resulted in a mistrial when the jury was unable to agree upon a verdict. He was retried on January 27, 1987, and the jury returned a verdict of guilty and a sentence of life imprisonment. Conerly appeals, alleging that: the prosecutor violated Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d

69 (1986); the trial court erred in overruling his motion to dismiss based on denial of a speedy trial; the trial court erred in admitting the State's exhibits; and, the trial court erred in denying his motion for new trial. In reversing we address only Conerly's Batson claim.


 It is unnecessary, for purposes of this appeal, to provide a full recitation of the facts. Witnesses testified that Conerly robbed a Picayune, Mississippi, convenience store on August 18, 1985. In the process of the robbery, Conerly held two employees at gun point and obtained over three hundred dollars ($300.00) in cash. Conerly admitted that he had been in the store on the day of the robbery, but claimed an alibi for the time of the robbery. On this conflicting evidence the jury returned its guilty verdict.



 Forty-nine venire persons were present at Conerly's trial. Nine of those forty-nine were black. The trial court excused two of the nine for cause. The state accepted one black venire person and used five peremptory challenges to exclude black venire persons. A jury composed of eleven whites and one black was accepted before reaching the last black venire person.

 Our concern today centers on the state's challenge of one of the five excluded black venire persons. The portion of the jury selection process involving Juror Jean Swain is taken from the record and is as follows:


 Let the record show that Willie Ray is a member of the Black race, and therefore the Court will require if the State exercises any challenges on Black jurors, to state their reason for so doing. Whether or not I have all of the jurors marked that are Black, I'm not absolutely certain, so Mr. Cooper, if the State does strike a Black juror and I fail to require an explanation, would you please bring it to my attention that that juror being struck is Black.

 * * *


 We are going to strike Jean Swain, . . ., who is Black, because she was unable to completely fill out her form, and we believe she lacks the -


 Let's see her form.


 She is also confused on some of it. I can't figure her age out.


 Let the record show that Jean Swain filled out her form by printing and put her age as 59-5-27-27, which could mean fifty-nine years old and that she was born on May 27th of the year 1927, which would be very sensible. Her occupation is maid one day per month; her address is Mrs. Harris Love, 318 North Hickory; she shows a marital status of separated; how long worked there, twenty years; she did finish high school - well, she's got high school checked, but highest grade completed, 11th. She wouldn't have to fill in outside the county seat because she lives in Poplarville and that is the county seat.


 Doesn't say how long she lived -


 Does not fill out how long she has lived in Pearl River County. And does her husband or wife work, she didn't fill out any of that but she shows she's separated. Then she does put the name of her mother and her father. So if that's your reason, the form to me is filled out adequately and I believe that her age would be - the month and date and year would show to be the age.

 Do you object to the excusing of her?


 Yes, sir.


 In order to "establish a prima facie case of purposeful discrimination in selection of the petit jury" a criminal defendant 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 raised an inference that the prosecutor used his peremptory challenges for the purpose of striking minorities.

 Batson, 476 U.S. at 96-97, 106 S. Ct. 1722-23, 90 L.Ed.2d at 87-88; Lockett v. State, 517 So. 2d 1346, 1349 (Miss. 1987).

 Conerly has complied. He has shown that he is a black person and that the district attorney has exercised peremptory challenges to remove black persons from the jury - Jean Swain and four others. Finally, the fact that the prosecution used all of the peremptory strikes necessary (five) to remove all but one black person from the jury satisfies the requirement of raising an inference of racial discrimination.

 The prima facie showing satisfied, the state is compelled "to come forward with a neutral explanation for challenging black jurors" [footnote omitted]. Batson, 476 U.S. at 97, 106 S. Ct. at 1723, 90 L.Ed.2d at 88; Lockett, 517 So. 2d at 1349. The trial court should then determine, on the record, whether each of the state's reasons for striking black jurors is, in fact, racially neutral.

 [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.

 Lockett, 517 So. 2d at 1350.

 The difficulty in the instant case lies in the

 fact that the trial court made a factual determination that Juror Swain's information card was adequately filled out, as well as an implied determination that Swain was not confused. The trial court was also able, without any difficulty whatsoever, to discern Juror Swain's age and birthdate. Having determined that the state's explanation did not provide a valid reason for striking Swain, the trial court was obligated to seat her on the jury unless the state could suggest another racially neutral reason for striking her. The district attorney did not articulate any other Batson eligible reason for challenging Swain.

 As we noted in Chisolm v. State, 529 So. 2d 635 (Miss. 1988):

 Batson tells us

 `A single invidiously discriminatory governmental act' is not `immunized by the absence of such discrimination in the making of other comparable decisions'. 476 U.S. at 95 [106 S. Ct. at 1722], 90 L.Ed.2d at 87.

 That the prosecutor accepted other black persons as jurors is no defense to a Batson claim.

 Chisolm, 529 So. 2d at 637.

 In light of the prosecutor's failure to articulate a valid race-neutral reason for striking Juror Swain, the trial court's factual determination that she was eligible and the case law recited above, we have no alternative but to reverse this case and remand for a new trial. REVERSED AND REMANDED.


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