Before Prather, C.j., Smith And Waller, JJ.
The opinion of the court was delivered by: Waller, Justice
DATE OF JUDGMENT: 03/21/96
TRIAL JUDGE: HON. JERRY OWEN TERRY, SR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION AFFIRMED - 6/11/98
MOTION FOR REHEARING FILED:
¶1. Armon Andre Randall was convicted of capital murder and armed robbery. Randall received a sentence of life without parole for capital murder and forty years for the armed robbery charge. On appeal to this Court, Randall argues that the court below improperly prevented him from exercising a peremptory challenge on juror Allen Perkins; and, that it was error for the lower court to refuse a requested lesser included offense instruction on manslaughter. Finding no merit in either argument, we affirm.
FACTS AND PROCEDURAL HISTORY.
¶2. Mr. Tim Bui and his wife, Kim Che Le, owned and operated Tim's Auto Service in Biloxi. On May 12, 1994, they both closed up shop and left for their home around 7:15 p.m. Unbeknownst to the couple, they were followed by a car carrying Armon Randall and his confederates, Chris Payne, Rose Mary Henderson, and Jamie Sue Skinner.
¶3. Earlier, Randall and Payne had discussed performing a robbery as a means of earning some quick cash. Each was armed, Armon Randall with a .32 revolver, and Chris Payne with a .380 auto. Although well armed, the two needed a car. So, the two fell in with Skinner and Henderson and left in Henderson's blue Camaro. The four drove around for awhile and then noticed the victims either closing down their shop or stopping at a stoplight.
¶4. They followed the victims back to Gulfport. Payne and Randall got out of the car and made a bungling attempt to rob the couple, while Jones and Skinner made the block. Payne struck Mr. Bui in the head with his pistol; but, Randall panicked when he saw Mrs. Le move around in her seat and shot her in the neck. Payne and Randall then fled the scene on foot, making away with a bag of cucumbers. Mrs. Le bled to death in her driveway.
¶5. The police initially had no leads in this case, but as circumstance would have it, Payne had allegedly committed a prior armed robbery in the company of one Chris Henderson. Chris Henderson, picked up in relation to this other crime, related that he had overheard Chris Payne and Armon Randall discussing "doing" an armed robbery. The investigating officer contacted Detective Guinn, assigned to the instant case, who, based on his interview with Chris Henderson, obtained a search warrant for Chris Payne's house. The police recovered numerous weapons, including a .380 automatic, and Chris Payne was subsequently arrested.
¶6. At the station, Chris Payne gave a statement resulting in arrest warrants being issued for himself, Armon Randall, Jamie Sue Skinner, and Rose Mary Henderson. Armon Randall was arrested and the grand jury subsequently returned an indictment against Randall for capital murder and armed robbery. Armon's trial spanned three days and ultimately the jury returned guilty verdicts on both counts, sentencing Armon Randall to prison for life without parole for the capital murder of Kim Che Le, and 40 years for the armed robbery of Tim Bui.
¶7. From this conviction, Armon Randall filed timely notice of appeal, raising the following issues for this Court's consideration:
I. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENDANT TO USE HIS PEREMPTORY CHALLENGE ON JUROR ALLEN PERKINS.
II. WHETHER THE TRIAL COURT ERRED IN NOT ALLOWING A LESSER INCLUDED OFFENSE INSTRUCTION.
I. DID THE LOWER COURT ERR IN PREVENTING RANDALL FROM EXERCISING A PEREMPTORY CHALLENGE AGAINST JUROR ALLEN PERKINS?
¶8. The availability of peremptory challenges is not a matter of constitutional right; but, it is well established that the exercise of such challenges, when made available, must be constitutional. The wellspring of current jurisprudence on this question is Batson v. Kentucky in which the Supreme Court held that a juror may not be struck by the prosecution in a criminal case simply because she is black. Batson v. Kentucky, 476 U.S. 79 (1986). Batson protection has since been extended to civil trials, to strikes exercised by the defense, and to discriminatory strikes based on gender. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631, (1991) (Batson extended to civil context); Georgia v. McCollum, 505 U.S. 42, 59, (1992) (extending Batson to strikes exercised by criminal defendant); J.E.B. v. Alabama, 511 U.S. 127, 141(1994)(applying Batson to gender).
¶9. The Supreme Court recently outlined the Batson test in Hernandez v. New York as follows *fn1 :
First, the [opponent of the strike] must make a prima facie showing that the [proponent] has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the [proponent] to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the [opponent] has carried his burden of proving purposeful discrimination.
Hernandez v. New York, 500 U.S. 352, 358-59 (1991)(Plurality opinion)(citations omitted). The Batson test has spawned an enormous amount of legal commentary and judicial opinion, and thus it is helpful to consider each prong separately.
¶10. Traditionally a prima facie showing of discrimination required that the ...