Before Bridges, C.j., Coleman, And Diaz, JJ.
The opinion of the court was delivered by: Coleman, J.
CALVIN MORRIS SMITH, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
TRIAL JUDGE: HON. ROBERT H. WALKER
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNT I -- KIDNAPPING AND COUNT II -- SEXUAL BATTERY AND SENTENCED TO SERVE 20 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR EACH CONVICTION, WITH THE SENTENCES TO BE SERVED CONCURRENTLY.
DISPOSITION AFFIRMED - 3/24/98
MOTION FOR REHEARING FILED:
A jury found the appellant, Calvin Morris Smith, guilty of both kidnapping ENM and committing sexual battery on ENM by way of compelling her to commit fellatio on him, when ENM was eight years old.*fn1 Pursuant to the jury's verdicts of "Guilty," the trial court entered its final judgment by which it sentenced Smith to serve twenty years in the custody of the Mississippi Department of Corrections for his conviction of kidnapping and twenty years in the custody of the Mississippi Department of Corrections for his conviction of sexual battery, with both sentences to run concurrently. In this appeal, Smith asserts that the trial court erred, first, by failing to sustain his Batson objections to the State's exercise of two of its peremptory challenges during the jury selection process and, second, by failing to direct a verdict of not guilty on the kidnapping charge. We affirm the trial court's final judgment of Smith's guilt of both sexual battery and kidnapping and its sentences of Smith to serve twenty years in the custody of the Mississippi Department of Corrections for sexual battery and twenty years in the custody of the Mississippi Department of Corrections for kidnapping, both of which are to run concurrently with each other.
Except for the potential effect of his Batson issue on the outcome of both of his convictions, Smith raises no issue which attacks only his conviction of and sentence for sexual battery. Thus, our recitation of the facts is limited to those facts which this Court finds relevant to Smith's second issue, which is that the trial Judge erred when he denied the motion for directed verdict. We recite these facts in the manner most favorable to the jury's verdict that Smith was guilty of kidnapping eight-year-old ENM.
Smith resided in a three-bedroom apartment in the North C. Jones housing project on Virginia Avenue in north Gulfport with his wife of three years, Ida Smith, and her two children born to her earlier marriage, ENM, her daughter, and DTM, her five-year-old son. ENM was born on November 6, 1985, and thus she was eight years old on September 2, 1994, when these events occurred.
On the evening of September 1, 1994, Smith came home at approximately 10:00 p.m. and asked his wife for some money. She refused his request, and Smith left. Around midnight, Smith returned home, entered the bedroom where Ida was sleeping, and turned on the light. Ida Smith awoke to see that her husband had a knife in his hand. Smith began shoving things around the bedroom; next he removed the shoestrings from Mrs. Smith's tennis shoes and tied her wrists together in front of her and tied her feet together as she sat on the bed. Smith also put black panty hose over her head and stuffed a sock into her mouth. Then, Smith left their bedroom and proceeded across the hall in the apartment into the bedroom where ENM was sleeping.
As Mrs. Smith was loosening her fetters, her husband, the appellant, returned to their bedroom and re-tied her hands behind her back and re-tied her feet. Once more Mrs. Smith untied the shoe laces, left her bedroom, and entered her daughter's bedroom directly across the hall. Smith was standing behind the door to ENM's bedroom when her mother entered the bedroom. ENM was sitting on her bed crying and screaming when her mother entered the bedroom. After his wife entered ENM's bedroom, Smith came from behind the bedroom door, still holding the knife in his hand, and forced Mrs. Smith to return to her husband's and her bedroom. With his wife back in their bedroom, Smith returned to ENM's bedroom. Both before and after Mrs. Smith entered her daughter's bedroom, Smith compelled ENM to fellate him while he held the knife against her neck and held the back of her head with his hand.
Later, Smith returned to his wife's and his bedroom and went to bed. Smith eventually fell asleep. The next morning, Mrs. Smith dressed and took ENM and her brother to their biological father's home. She then went to her grandmother's residence, where she called the police to report what Smith had done the night before. Shortly before 3:00 p.m. on September 3, 1994, in response to Mrs. Smith's telephone call, Gulfport Police Officers Philip Jordan and Damon McDaniel began searching for Smith in the area of the North C. Jones Housing Project. As the two officers spoke with a local resident, the resident identified Smith, who was seen running away from the policemen. The officers gave chase -- one on foot and the other in the police car -- and arrested Smith after a short pursuit. When the arresting officers searched Smith's person pursuant their arrest of him, they found a knife in Smith's back pocket which Mrs. Smith later identified as the knife with which her husband had threatened her.
A grand jury in the First Judicial District of Harrison County returned a two-count indictment against Smith. The first count charged Smith with kidnapping in that he "did... forcibly seize and confine [ENM], with the intent to cause the said [ENM] to be secretly confined or imprisoned against her will" in violation of Section 97-3-53 of the Mississippi Code of 1972.*fn2 Count II of the indictment charged Smith with sexual battery in that he "did... commit sexual battery upon [ENM], a child who was at the time in question under the age of 14 years, be engaging in the act of sexual penetration, to-wit: by inserting his penis into the mouth of the said [ENM]" in violation of Section 97-3-53 of the Mississippi Code of 1972.
As its primary witnesses, the State called Ida Smith and her daughter, ENM, whose testimony is reflected in our recitation of the facts. One of the officers who arrested Smith, Philip Jordan, and Detective Rosario Ing testified about the evidence which they gathered at the Smiths' apartment and the circumstances surrounding the pursuit and eventual arrest of Smith. The State introduced into evidence the knife found in Smith's pocket when he was arrested, the shoelaces used to bind Mrs. Smith's hands and feet, and the panty hose which Smith had placed over her head.
After the State rested, Smith moved for a directed verdict of acquittal in the following manner:
Comes now Calvin Morris Smith, by and through his attorney, and moves for a directed verdict in count one and count two for the reason that the State has failed to make out a prima facie case and, more specifically with reference to count one, the kidnapping charge, the State has failed to produce any credible evidence that there was ever any felonious intent on the part of the defendant to secrete or confine [ENM], which would be a requirement to make out a prima facie case of kidnapping.
At the Conclusion of Smith's and the State's argument on the motion for directed verdict, the trial Judge denied the motion and opined as follows:
I am going to overrule the defendant's motions for directed verdict as to counts one and two for this reason: Although I have not found a case directly on point, the elements of sexual battery does not require force, especially since we have a minor involved who is incapable of consent, in any event, and the case law is clear in kidnapping cases that actual transportation of the victim is not required, and there was testimony of a knife being exhibited on [ENM], which could lead a reasonable juror to believe that she was not free to leave, and force and confinement not being an element of sexual battery, a jury could determine that two crimes have been committed. For that reason I am going to deny the motions.
Smith's testimony presented a different version of the events on the night of September 1 and 2. Smith testified that when he returned home from work, he observed five or six different sets of tennis shoe prints on the floor in the living room of their apartment. ENM was crying. When Smith asked his wife why ENM was upset, she responded that it was because Smith would not let ENM go see her natural father. Smith inquired about who had left the shoe prints, to which Mrs. Smith replied that no one had been there. An argument ensued between the couple, and Smith left "to try to cool off a little bit." When he returned home later that night, ENM and DTM were asleep. According to Smith's testimony, he undressed, took a bath, went to bed with Mrs. Smith, had sexual intercourse with her, and then fell asleep.
Smith then testified that he awakened the next morning and left for work at 6:00 a.m. His wife was dressing ENM and DTM to prepare them for school. Smith denied that he tied Mrs. Smith's hands and feet together, and he further denied that he compelled ENM to fellate him. Smith explained his possession of the knife because he used to it in connection with his work. Smith worked in the woods bailing pine straw for his employer who sold it to landscapers and nurseries. If a bale of pine straw was faultily made, Smith would use the knife to open it so that it could then be re-baled.
After Smith rested, the State offered some rebuttal testimony about some inconsistencies in Smith's testimony. After the State rested on rebuttal, Smith renewed his motion for a directed verdict and requested a peremptory instruction of "Not guilty." The trial Judge denied them both. We have recited the result and consequences of the trial.
III. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES
We quote both of Smith's issues verbatim from his brief:
I. DID THE TRIAL COURT ERR IN FAILING TO SUSTAIN DEFENDANT'S BATSON OBJECTIONS DURING THE JURY SELECTION PROCESS?
II. DID THE TRIAL COURT ERR IN FAILING TO DIRECT A VERDICT IN FAVOR OF THE DEFENSE ON THE CHARGE OF KIDNAPPING?
In his first issue, Smith argues that the trial Judge erred when he allowed the State's race-neutral reasons for peremptorily challenging two African American members of the venire panel, Archie Spencer and Hilda Smith. After the completion of voir dire, the trial Judge began the jury selection process by noting for the record that "of the forty-eight... potential jurors today, eight of the forty eight are black, four of which are in the first panel of twelve." The State requested leave to proceed with its challenges of the venirepersons for cause, which the trial Judge allowed. The State's first challenge for cause was Archie Spencer, who was juror number five on panel number one. The State offered the following reason for challenging Spencer for cause:
During a lot of the voir dire I noticed that he was sleeping, and at this point we would ask that he be stricken for cause in that he wasn't even awake to answer the questions.
The trial Judge denied the State's challenge of Spencer, which denial he explained as follows:
Well, I was watching him, and I don't necessarily agree with you that he was sleeping. He might have been inattentive at times and might have had his eyes down, if not closed, but he would perk up during some questions. So I don't think it would be subject to cause. It will be overruled.
Smith challenged no venireperson for cause. After the State had completed its challenges for cause, the trial Judge began to consider both the State's and Smith's peremptory challenges. Both the State and Smith agreed that because kidnapping was a capital case, each of them would be entitled to exercise twelve peremptory challenges. The State's first peremptory challenge was Archie Spencer. Smith's counsel responded, "Your Honor, we would invoke the Batson challenge on that. The State responded as follows to Smith's Batson challenge: "Your Honor, again, Mr. Spencer appeared to be inattentive or I thought he was sleeping. I don't know how many of the questions he heard on voir dire. That is the reason." Smith's counsel replied to the State's race-neutral reason for peremptorily challenging Spencer: "Judge, I disagree with that. When I was voir diring the jury I maintained eye contact with all the jurors, and he appeared to me to be as attentive as any others, and I didn't notice him being inattentive at any stage." The trial Judge stated that he thought that it "would be within the discretion of the State to exercise a strike for that reason in that it is not racially motivated," and he accepted the State's race-neutral reason for peremptorily challenging Spencer. The trial Judge gratuitously found yet another race-neutral reason for allowing the State's peremptory challenge of Spencer, but because the State did not offer it, we decline to consider it.*fn3
After the State prevailed in its peremptory challenge of Spencer, the prosecutor asked that the record reflect "that juror number 1 and juror number 4, both of whom the State accept[ed], are black." The trial Judge replied, "The record notes that."
The State then peremptorily challenged Hilda Smith, to which Smith's counsel responded, "We interpose a Batson challenge on that one also." The State provided the trial Judge with the following race-neutral reason for its peremptory challenge of venireperson Smith: "She only attended junior high school. On her jury card she spelled Mississippi 'M-i-s-s-i-p-p-i-s-s.' She also indicated that she had a nephew that was in jail and was convicted of burglary, and for those reasons we would ask the Court to allow us to strike." The trial Judge found that the State's reasons were "sufficient race-neutral reasons," and accepted the State's peremptory challenge of Hilda Smith. The State continued to exercise four more peremptory challenges for a total of six peremptory challenges, but Smith does not complain about the other four of the State's peremptory challenges.
Smith exercised six peremptory challenges to members of the venire panel, but the State did not object to any of his peremptory challenges on either racial or gender bass. About the selection of the alternate jurors, the trial Judge observed that while "each side has two peremptory strikes for alternates" in a capital case, "[w]e are just going to put one alternate in. That's all we need." In the selection of the alternate, the State offered the first available venireperson, whom Smith's counsel peremptorily challenged. The State then offered the following name from the venire panel, whom Smith accepted. The record reflects that after the jury had been empaneled and sworn, one of its members was excused by agreement of the State and Smith, and the alternate juror then became a member of the trial jury.
The Mississippi Supreme Court has established the following standard of review to which this Court must adhere when it reviews an ...