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Puckett v. State

March 25, 1999

LARRY MATTHEW PUCKETT
v.
STATE OF MISSISSIPPI



The opinion of the court was delivered by: Smith, Justice

DATE OF JUDGMENT: 08/07/96

TRIAL JUDGE: HON. RICHARD WAYNE McKENZIE

COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT

DISTRICT ATTORNEY: E. LINDSEY CARTER

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY (DIRECT APPEAL)

DISPOSITION: REMANDED - 3/25/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

¶1. Larry Matthew Puckett was indicted during the January 1996 term of the Circuit Court of Forrest County, Mississippi, for the capital murder of Rhonda Hatten Griffis on October 14, 1995, while engaged in the commission of the crime of sexual battery in violation of Miss. Code Ann. § 97-3-19(2)(e)(1994 & Supp. 1998). Venue was transferred from the Forrest County Circuit Court to the Circuit Court for the First Judicial District of Harrison County, Mississippi. A jury was empaneled on July 29-30, 1996, and on August 2, 1996, the jury returned a unanimous verdict finding Puckett guilty of capital murder. Thereafter, the jury heard evidence and arguments in aggravation and mitigation of the sentence to be imposed. On August 5, 1996, the jury returned a verdict imposing the death sentence. The trial Judge sentenced Puckett to death by lethal injection and set an execution date of September 13, 1996. Puckett's Motion for Judgment Notwithstanding the Verdict or in the Alternative Motion for New Trial, as well as his supplemental Motion for Judgment Notwithstanding the Verdict or in the Alternative Motion for New Trial, were denied, and his execution stayed pending appeal on August 9, 1996.

¶2. This Court has considered all issues raised by Puckett and with the lone exception of Issue III, they are all without merit. Because the trial court did not conduct a proper hearing, we remand for the limited purpose of conducting a hearing as mandated in Batson v. Kentucky, 476 U.S. 79 (1986), and our precedent case Hatten v. State, 628 So. 2d 294, 298 (Miss. 1993).

STATEMENT OF FACTS

¶3. On October 14, 1995, shortly before 5:00 p.m., Mrs. Rhonda Hatten Griffis, age 28, was found lying in a large pool of blood next to the couch in the living room of her home on 198 Sunrise Road, Petal, Mississippi. Mrs. Griffis was found wearing a t-shirt, and the only clothing on the lower part of her body was around her left foot. She had several gashes on the back of her head. There were other injuries to Mrs. Griffis' head, back, and chest, including a deep laceration and three to four hesitation marks to the neck. She was also bleeding from her vagina. She had several defensive wounds on her hands, arms, and elbows. Mrs. Griffis died as a result of the injuries; the cause of death was cranial cerebral trauma, secondary to blunt force trauma. A wooden stick or club covered with blood was recovered outside the residence.

¶4. Rhonda's mother, Nancy Hatten, lived next door, roughly 150-175 feet from the Griffis' trailer. On the day of the murder, Mrs. Hatten helped Rhonda's boys, Justin, age 7, and Jeffrey, age 5, put up Halloween decorations in the yard. Rhonda was not feeling well that day, suffering from a headache and bad sinus problems. Later that afternoon, Mrs. Hatten was in her front yard when she heard a "scream and a thud" come from the Griffis' trailer. Mrs. Hatten then ran home and telephoned the trailer. The phone rang four or five times, but there was no answer. Mrs. Hatten hung up and dialed again, but there was still no answer. She then immediately went to the trailer.

¶5. As Mrs. Hatten neared the trailer, she saw David Griffis, Rhonda's husband, and their two boys driving up to the trailer. David had been hauling pine straw all day and was returning with his last load. A blue truck was parked in the vacant lot beside the residence. Nancy entered the trailer door at the kitchen/dining room area and called for Rhonda but there was no answer. Puckett came from the hallway into the kitchen/dining area and raised a club back and started towards Nancy. As Nancy backed away from Puckett, Jeffrey entered the house followed closely by David. Justin was still outside. Nancy then took the children, ran to her house, locked the boys in the bathroom, and called 911. This 911 call was received by the 911 system at 5:01:15 p.m. and answered by the 911 operator at 5:01:20 p.m. At 5:01:41 p.m., Nancy was placed on hold, as 911 received a call from the Griffis' trailer. Mrs. Hatten identified State's Exhibit Number 3 as the club that Puckett had in his hand in the trailer.

¶6. The Griffis family knew Puckett because he was once employed by David Griffis. While Puckett was employed by David, the employees would gather at the Griffis' house before leaving for work.

¶7. Jeffrey Griffis testified that when he entered the home, he saw Puckett with a club in his hand and holding on to Mrs. Hatten's shirt. David Griffis testified that when he entered the home, he saw Mrs. Hatten with Puckett standing in front of her with the club in his hand raised over his head. David indicated that Puckett was wearing army-type coveralls. The club had blood and a white substance on it. David asked Puckett what he was doing in his house and Puckett said he had hit a deer on the road and came to get David's help and to use the telephone. David called out for Rhonda but no one answered. However, Puckett told David that Rhonda was down at her mother's house. David asked Puckett about the blood on the club and Puckett indicated that it was blood from the deer. David then dialed 911 from a portable phone that was laying on the counter beside him. This 911 call was received by the 911 system at 5:01:27 p.m. and answered by the 911 operator at 5:01:41 p.m. This (David's) call was terminated at 5:04:42 p.m. At some point, David and Puckett struggled and David got the club from Puckett. David tried to keep Puckett in the trailer until the police arrived. However, Puckett took off running towards the door. As Puckett was running for the door, David swung the club and hit Puckett on the shoulder. Then, as Puckett ran out the door, David threw the club at him. Dr. Michael West testified at trial that the club, State's Exhibit 3, was consistent with the wound pattern found on Puckett's back.

¶8. Once Puckett exited the trailer, David entered the living room and reached for his pistol that was usually on a gun cabinet just to the left of the living room door. However, the pistol was not there. David did not see Rhonda's body lying in the living room at this time. David then ran into the bedroom to retrieve a rifle from the bedroom closet. The bedroom door is straight ahead as you turn towards the cabinet. As David exited the bedroom and re-entered the living room, he then saw Rhonda laying on the floor. He saw that Rhonda was injured and dialed 911 again to inform the police. David's second 911 call was received by the 911 system at 5:05:01 p.m. and was answered by the 911 operator at 5:05:07 p.m. This call was terminated at 5:11:45 p.m. The time between the end of David's first 911 call and the beginning of his second 911 call was 18 seconds. Sheriff's deputies and paramedics arrived within minutes.

¶9. Before David fired Puckett, David considered him to be a decent employee and even wrote a letter of recommendation for Puckett to become an Eagle Scout. Another former employer of Puckett's, Ray Watkins, testified that shortly before Rhonda's murder, a maul handle was broken at his work site. Watkins had the maul handle for several years, between seven (7) and ten (10) years, and believed the maul handle to be State's Exhibit No. 3. Watkins also testified that he had seen the handle in Puckett's truck on several occasions.

¶10. Puckett was seen around 3:30 p.m. the afternoon of the murder at the same house from which David Griffis was collecting pine straw. Puckett's blue 4-wheel drive truck was also seen passing the Griffis' residence at approximately 4:41 p.m.

¶11. Puckett's truck was recovered the next night in a wooded area in Perry County. On October 16, 1995, Puckett was apprehended near his mother's home in Perry County. At the time of his arrest, Puckett nervously commented to his mother that "[t]his is a lot of law enforcement for somebody who just committed a burglary." A duffle bag containing various items including a pair of coveralls was recovered from Puckett at the time of his arrest.

¶12. Puckett did not deny being in the trailer at the time of the murder, but testified that he witnessed David Griffis murder his wife. He indicated that he had originally planned only to burglarize the house in order to find money to pay his truck note. He stated that the idea to burglarize the house just popped into his head at the time he went by the Griffis' house. Puckett testified that he parked his truck in a vacant lot beside the Griffis' trailer and put his coveralls on. Puckett saw Rhonda's car at the trailer, but proceeded to the door anyway and knocked. Puckett said that Rhonda let him in and they began to talk. *fn1 Puckett said that he saw the stick (State's Exhibit No. 3) lying on the living room floor. He stated that he and Rhonda began kissing and he then began acting out his sexual fantasy of undressing a woman while he remained fully clothed. He said that Rhonda then saw her mother approaching the trailer, grabbed her clothes and ran into the bedroom, and told Puckett to get rid of her mother. Puckett said he ran into the dining room area and had picked up the stick and decided to scare Mrs. Hatten away with the club. Puckett further stated that after Mrs. Hatten fled with the children, David accused Rhonda of sleeping with Puckett and began hitting her with the stick that David took from Puckett. After beating his wife, David struggled to keep Puckett in the trailer, but Puckett was able to escape while David was calling 911. At trial, Puckett indicated the whole incident took four or five minutes. Puckett said he hid in the woods for two days because he was afraid of David.

¶13. Puckett indicated that State's Exhibit No. 3 was not the same maul handle which he had obtained from a former employer, Ray Watkins. He testified instead that he had destroyed that maul handle while he was working for Mark Hicks, by making a torch out of it to burn off some trash.

STATEMENT OF ISSUES

¶14. Aggrieved by his conviction and death sentence, Puckett appeals, and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL BECAUSE OF IMPERMISSIBLE AND PREJUDICIAL COMMENTS BY VENIREMAN NO. 15, RICHARD A. OLSON?

II. WHETHER THE TRIAL COURT ERRED IN STRIKING FOR CAUSE VENIREPERSON NO. 16, WHO TESTIFIED THAT SHE COULD KEEP A FAIR AND OPEN MIND DESPITE HAVING HEARD THE COMMENTS OF VENIREMAN NO. 15, WHO WAS PROPERLY REMOVED FOR CAUSE?

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PEREMPTORILY STRIKE EVERY AVAILABLE BLACK JUROR IN VIOLATION OF BATSON v. KENTUCKY AND POWERS v. OHIO?

IV. WHETHER THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE GRUESOME AND PREJUDICIAL PHOTOGRAPHS, AS WELL AS VIDEOTAPE OF DEFENDANT?

V. WHETHER DR. MICHAEL WEST SHOULD HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT IN THE FIELD OF WOUND PATTERNS?

VI. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTIONS FOR MISTRIAL BASED ON PROSECUTORIAL MISCONDUCT?

VII. WHETHER IT WAS IMPROPER AND REVERSIBLE ERROR FOR THE DISTRICT ATTORNEY TO INQUIRE OF THE DEFENDANT AS TO HIS POST-MIRANDA SILENCE?

VIII.WHETHER THE TRIAL COURT ERRED IN ALLOWING EVIDENCE OF THE "CANEBRAKE" INCIDENT AND ADMITTING THE 911 TAPE INTO EVIDENCE?

IX. WHETHER THE TRIAL COURT ERRED IN REFUSING TO REDUCE THE CHARGE AGAINST THE DEFENDANT FROM CAPITAL MURDER TO SIMPLE MURDER AND FURTHER ERRED IN AMENDING OVER OBJECTION INSTRUCTION D-13 AS PROPOSED BY DEFENDANT?

X. WHETHER VIEWING THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO THE STATE, A REASONABLE HYPOTHETICAL JUROR COULD HAVE FOUND DEFENDANT GUILTY BEYOND A REASONABLE DOUBT?

XI. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXEMPT PHASE II FROM SEQUESTRATION?

XII. WHETHER THE TRIAL COURT'S LIMITING INSTRUCTION DEFINING "ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL" WAS CONSTITUTIONALLY VALID?

XIII.WHETHER THE STATE ADDUCED EVIDENCE TO SUPPORT THE PROPOSITION THAT THE MURDER WAS COMMITTED FOR THE PURPOSE OF AVOIDING OR PREVENTING THE DETECTION AND LAWFUL ARREST OF DEFENDANT?

XIV. WHETHER THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY AS TO PENALTIES?

XV. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S CHALLENGES TO MISSISSIPPI'S DEATH PENALTY?

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL BECAUSE OF IMPERMISSIBLE AND PREJUDICIAL COMMENTS BY VENIREMAN NO. 15, RICHARD A. OLSON?

¶15. Puckett maintains that the trial Judge erred in not granting a mistrial after it was discovered "that Venireman No. 15, Richard A. Olson, had disregarded the Court's instructions by not only discussing the case with fellow jurors during breaks in the voir dire proceedings, but also in expressing his opinions as to Defendant's guilt, the legal tactics of Defendant's attorneys and the appropriate punishment."

¶16. Once the defense counsel raised concerns regarding Olson's comments, the trial Judge immediately began the process of ascertaining what Olson was alleged to have said, where it was said, when it was said, and to whom he might have made the comments. Because the entire Discussion comprised thirty-six (36) pages of the court record, it is not feasible to re-state the Discussion in its entirety. However, a review of the record indicates that Olson made comments regarding the extent of the delays which were taking place at such an early stage in the proceedings, and comments regarding how he viewed the death penalty. Olson admitted to discussing both of these topics and another venire member, Juror No. 16, Janet Byrd Sinclair, confirmed that she heard Olson make comments regarding his view of the death penalty. There is nothing in the record to support defense counsel's allegations that Olson expressed his opinion as to the defendant's guilt and the appropriate punishment.

¶17. Defense counsel made the following motions for mistrial concerning Olson:

MR. ADELMAN: Your Honor, at this point, not only would I move to exclude Olson, I move for a mistrial. This man has totally disregarded the Court's instructions. He has attempted to poison the jury; his behavior is totally outside the bounds of acceptable juror behavior.

MR. ADELMAN: Yes, sir. For the record I wanted to renew our motion for mistrial. On the juror 15 Mr. Olson, I was not sure whether or not our motion for a mistrial - we had made both a motion to excuse and also --THE COURT: I see, when we were in chambers --MR. ADELMAN: I feel that his talking about the issues that he talked about was poisonous to the entire panel. . . . (emphasis added).

¶18. Following the extensive inquiry into the allegations concerning Olson's comments, the trial Judge granted defendant's motion that Olson be excused from the venire panel, but denied defendant's motion for mistrial which was also based upon Olson's comments. In making his ruling, the trial Judge went to great lengths to ascertain to whom Olson had made the alleged comments and also excused the other juror member (No. 16, Janet Byrd Sinclair) who was positively identified as hearing the alleged comments.

¶19. Puckett cites Smith v. State, 198 So. 2d 220 (Miss. 1967), Schwarzauer v. State, 339 So. 2d 980 (Miss. 1976), and Vickery v. State, 535 So. 2d 1371 (Miss. 1988), in support of his argument that "[b]ecause of the errant behavior of Venireman No. 15, it became impossible for the venire empaneled to render a fair and impartial verdict." Puckett asserts that, as was the case in Vickery, Olson's comments were so damaging that an admonishment could not cure the prejudicial effect the comments had on the jury, and thus, the motion for mistrial should have been granted so that this case could have been tried by a jury untainted by Olson's comments.

¶20. However, Smith is distinguishable from the case at bar in that Smith involved an empaneled juror's comments about the sanity of the defendant. Smith, 198 So. 2d at 223. First and foremost it's noted that in the case at bar Olson was not an empaneled juror. Olson was a member of the venire panel, who was eventually removed for cause based on the fact that he disregarded the court's instructions by making comments. Because Olson and the other venire member who overheard his comments were removed from the venire panel, the comments he made could not have influenced the jury's verdict. Secondly, Olson did not make comments about the defendant, but made comments during voir dire concerning the delays in the proceedings and his opinion of the death penalty in general.

¶21. Likewise, Schwarzauer involves an empaneled jury and as such is not properly relied upon in the case at bar. Here again, Olson and the other venire member who overheard his comments were removed from the venire panel. Therefore, the trial Judge's actions ensured that Olson's comments did not influence the jury's verdict.

¶22. Puckett relies on Vickery for the assertion that Olson's comments were so damaging that an admonishment could not cure the prejudicial effect the comments had on the jury. Puckett's reliance on Vickery is misplaced because Vickery involved witness comments as opposed to juror comments. Additionally, Vickery stands for the proposition that admonishments may not be sufficient to cure the prejudicial effect of damaging comments. However, in the case at bar, assuming here that Olson's comments were prejudicial and potentially damaging, the trial Judge did not rely on admonishments to cure Olson's comments. Instead, the trial Judge ensured that Olson and the other venire member who overhead the comments, would not be members of the jury that was finally empaneled.

¶23. The purpose of voir dire is to select a fair and impartial jury. Because the human element is always present, the process can by no means ever be perfect. Therefore, it is the trial court's duty to ensure that although not perfect, the jury panel that is finally empaneled can render an impartial verdict. Here, the trial Judge went to great lengths to ensure that any venire member who overheard Olson's comments was not included on the final jury panel. There is nothing in the record to support Puckett's defense counsels claims that the entire venire panel was poisoned by Olson's comments. Conversely, in the abundance of caution, the trial Judge excused Janet Sinclair, the one venire member who acknowledged hearing Olson's comments. This is consistent with Puckett's assertion that Olson's comments were so damaging that no admonishment could cure the prejudicial effect his comments would have on the jury. The trial Judge's actions in this case went above and beyond an admonishment and ensured that the final empaneled jury could not be influenced by Olson's comments. Since the trial Judge removed the individual who made the comments as well as the other individual who might possibly have been "poisoned" by Olson's comments, there is no merit to Puckett's assertion that the jury was not able to render a fair and impartial verdict. Accordingly, the trial Judge did not err in denying Puckett's motion for mistrial.

II. WHETHER THE TRIAL COURT ERRED IN STRIKING FOR CAUSE VENIREPERSON NO. 16, WHO TESTIFIED THAT SHE COULD KEEP A FAIR AND OPEN MIND DESPITE HAVING HEARD THE COMMENTS OF VENIREMAN NO. 15, WHO WAS PROPERLY REMOVED FOR CAUSE?

¶24. Puckett maintains that the trial court's dismissal of venire member No. 16, Janet Sinclair's was not supported by the record, since Sinclair indicated that she could keep a fair and open mind and render a fair verdict in the case despite overhearing the impermissible comments made by venire member No. 15, Olson. However, the State maintains that this issue is procedurally barred under Miss. Code Ann. § 13-5-79 (1972). This statute states:

"Any person, otherwise competent, who will make oath that he is impartial in the case, shall be competent as a juror in any criminal case, notwithstanding the fact that he has an impression or an opinion as to the guilt or innocence of the accused; if it appear to the satisfaction of the court that he has no bias or feeling or prejudice in the case, and no desire to reach any result in it, except that to which the evidence may conduct. Any juror shall be excluded, however, if the court be of opinion that he cannot try the case impartially, and the exclusion shall not be assignable for error." (emphasis added).

"On procedural grounds, once the Judge exercised his discretion and determined that the jurors probably could not be impartial, then the determination may not be assigned on appeal as an error." Coverson v. State, 617 So. 2d 642, 646 (Miss. 1993). See Burt v. State, 493 So. 2d 1325, 1327 (Miss. 1986); Gilliard v. State, 428 So. 2d 576, 580-81 (Miss. 1983); Sullivan v. State, 155 Miss. 629, 125 So. 115 (1929); Smith v. State, 103 Miss. 356, 60 So. 330 (1912). Once the trial Judge made the determination that Sinclair should be excluded, there is a statutory bar on raising this issue on appeal.

¶25. Not only is this issue statutorily barred, it is also substantively without merit. It was noted in the record that Sinclair also disregarded the court's instructions by not reporting Olson's comments which she overheard. The trial Judge also noted that Sinclair had asked to be excused for cause based on her being seven (7) months pregnant.

On substantive grounds, statutory and case law empowered the Judge with broad discretion to determine whether a prospective juror can be impartial - notwithstanding the juror's admission under oath that he or she can be impartial. * * * *

In short, the important and long-established maxim has been: (1) that a defendant has no right to have specific prospective jurors try his or her case, and (2) that the defendant cannot complain on appeal of a particular exclusion if the end result was a jury composed of fair and impartial jurors. Coverson, 617 So. 2d at 646 (citations omitted).

¶26. As in Coverson, the trial Judge here should not be faulted for going to great lengths to ensure that the final empaneled jury was not "poisoned" by Olson's alleged inappropriate comments. Moreover, it should be noted that this issue is in direct contradiction with Issue I. In Issue I, Puckett alleges that the entire venire was "poisoned" by Olson's comments and that no admonition was sufficient to cure the prejudicial effect. However, in Issue II, Puckett maintains that even though venire member No. 16 was one of those individuals "poisoned" by Olson's comments, she still should not have been excused because she indicated that she could be fair and impartial. If Puckett truly believes that Olson's comments were so prejudicial as to warrant a mistrial and that no admonition was sufficient to cure the prejudicial effect, it doesn't logically follow that he would believe Sinclair could rise above the prejudicial effect of overhearing these alleged inappropriate comments.

¶27. Puckett also states that "if the Court was correct in removing Sinclair, then every other juror who heard Olson's comments should have been removed and Defendant's motion for a mistrial should have been granted." A review of the record reveals that the trial Judge inquired of the remaining venire members whether they had overheard Olson's comments. Additionally, as a direct result of the extensive inquiry into this matter, there was some question as to whether venire member No. 4, Laurel Ouimette, also overheard Olson's comments. However, during jury selection, Puckett's defense counsel opposed her being removed from the venire. Since she could not positively be identified as the individual who overheard Olson's comments and she did not respond to the Judge's inquiry as one who had overheard his comments, the trial Judge ruled in the defendant's favor and did not remove her from the venire for cause. However, in light of the Judge's ruling and because of its concern that she may have overheard Olson's comments, the prosecution exercised a peremptory strike against Ouimette.

¶28. Puckett further maintains that "[i]f, on the other hand, the Court was correct in denying Defendant's motion for a mistrial, there was no basis for the removal of Sinclair." Contrary to Puckett's assertion, mistrial was not warranted in the case at bar because the trial Judge was very cautious in removing Olson and Sinclair. The trial Judge was very conscientious about ensuring a fair and impartial jury and took appropriate actions to ensure that the empaneled jury was not "poisoned" by any alleged inappropriate remarks made by Olson. Accordingly, the trial court did not err in excusing Sinclair from the venire.

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PEREMPTORILY STRIKE EVERY AVAILABLE BLACK JUROR IN VIOLATION OF BATSON v. KENTUCKY AND POWERS v. OHIO?

¶29. Puckett asserts a Batson violation in regards to the jury selection. Specifically, Puckett alleges that "[t]he State impermissibly used its peremptory challenges to exclude every available black juror in this case, resulting in a death sentence imposed by an all-white jury." *fn2 Although Puckett's argument tends to indicate that a death sentence imposed by an all-white jury is inherently suspect and automatically invokes the Batson analysis, this statement is not an accurate assessment of the law. What is essential in a Batson challenge is not necessarily the racial make-up of the final jury empaneled, but the process employed to obtain the final jury.

¶30. In Batson v. Kentucky, 476 U.S. 79, 96 (1986), the United States Supreme Court articulated the elements necessary to establish a prima facie case of purposeful racial discrimination in the use of peremptory strikes utilized during jury selection.

It is 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."

Lockett v. State, 517 So.2d 1346, 1349 (Miss. 1987) (footnote omitted) (citation omitted).

¶31. However, the Batson standard has since been expanded by later United States Supreme Court decisions. In Powers v. Ohio, 499 U.S. 400, 402 (1991) the Court held that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race. Thus we have noted:

"Under Powers, a white defendant now has standing to object to the use of peremptory challenges on potential black jurors. In essence, the first factor required by Batson has been eliminated. To establish a prima facie case of discrimination using the Batson criteria, a white defendant must show that the prosecutor has used peremptory challenges on persons of race and that the circumstances give rise to the inference that the prosecutor used the peremptory challenges in order to strike minorities." Bush v. State, 585 So. 2d 1262, 1267-68 (Miss. 1991).

¶32. Therefore, before the trial court is required to conduct a Batson hearing, it must first be shown that a prima facie case of purposeful discrimination exists. Specifically, Puckett must show that the State used peremptory challenges on black jurors in such a manner that gave rise to an inference of purposeful racial discrimination. However, it should be noted here that the State did not wait for a Batson challenge, but provided reasons for striking all jurors regardless of race or gender. Nonetheless, this voluntary action on the State's behalf should not be interpreted as eliminating Puckett's burden of establishing a prima facie case of purposeful discrimination. Upon review, this Court "must first . . . determine[] that the circumstances of the State's use of peremptory challenges against minority venirepersons created an inference of purposeful discrimination." Thorson v. State, 653 So. 2d 876, 898 (Miss. 1994) (Smith, J. Dissenting).

¶33. If the trial court does make the determination that the defendant has properly established this inference, the burden then shifts to the prosecution to provide race-neutral reasons for each challenged peremptory strike. The defense must then provide rebuttal to the State's proffered reasons. The trial Judge must then "make an on-the-record, factual determination, of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors." Hatten v. State, 628 So. 2d 294, 298 (Miss. 1993).

¶34. Puckett, is a white male and his victim, Rhonda Griffis, is a white female. Out of the entire venire totaling 112, there were only eleven (11) blacks. Out of the eleven (11), six (6) were excused for cause, one (1) was excused for medical reasons and the remaining five (5) were excused based on their indication that they could not impose the death penalty under any circumstances. Accord Witherspoon v. Illinois, 391 U.S. 510 (1968). Consequently, there were only five (5) blacks remaining prior to the exercise of peremptory challenges being exercised. The State used all 12 of its available peremptory challenges, four against blacks and eight against whites. This resulted in Puckett being tried by an all-white jury, six males and six females. *fn3

¶35. During jury selection, the prosecution volunteered reasons for all peremptory strikes without waiting for the trial Judge to determine whether the defendant had established a prima facie case of purposeful exclusion of blacks. In response to the prosecution's stated reasons, the defense counsel also stated his rebuttal. Following the defense's rebuttal, although the trial Judge then ruled on each challenged juror, the trial Judge did not make an on-the-record factual determination as to his ruling or independent inquiry concerning each juror as required by Hatten v. State, 628 So. 2d 294 (Miss. 1993).

¶36. The following portions of the jury selection process involving jurors specifically challenged by Puckett are taken from the record and are as follows:

JUROR NO. 7, GLORIA HAWTHORNE:

MR. HELFRICH: We would strike as S1 juror No. 4, Laurel Ouimette.

THE COURT: That is S1.

MR. HELFRICH: Do you want reasons for it now?

THE COURT: Not unless you just want to give them.

MR. JONES: Go ahead and give them.

MR. HELFRICH: . . . [H]er question: She would not want to be the one to enforce the death penalty. *fn4 S2 would be Gloria Hawthorne; she was not responsive on her questionnaire; she was one way and not responsive in open court; on her off days, she likes to sleep half the day; I don't think she would be attentive. S3.

MR. ADELMAN: Before we move from S2, note for the record that Gloria Hawthorne is a black female.

THE COURT: In anticipation of Batson, I did not delineate in this record, the racial or gender composition of this jury, and I don't know that any - - did any of you make that notation? I take your word for it, but I would just say - -

MR. ADELMAN: I made the notation.

MR. JONES: If the Court please, we think it will be a reverse back for both sides. Because the Defendant is white, it is going to be not only the black but the white; that is why we are going to give them on everyone. We ask they do the same. * * * *

MR. ADELMAN: Our position is that the reason given is not sufficiently a race neutral reason.

MR. HELFRICH: The fact that she sleeps half a day when she is off. I am afraid she will be sleeping here. She was not responsive to questions.

MR. JONES: She was not responsive to the death penalty questions, and her questionnaire is totally different in regard to the death penalty. * * * *

MR. ADELMAN: On her questionnaire, there is no issue about it. First of all, on her off time, she can sleep 100 percent of the time. There is no indication that it has ever interfered with her employment. She is fully employed. As far as death penalty, she stated, "I feel if you take another person's life and the Court can prove that you did it, then you should get the death penalty."

MR. JONES: If the Court please, our objection on the death penalty goes back, in open court she was totally unresponsive to our voir dire, and it is contradictory to what she says in her questionnaire, and for that reason we feel it is race - -

MR. ADELMAN: His question on the voir dire was whether or not they could put aside any feelings they had and view the evidence in light of the law.

THE COURT: The Court is of the opinion that cause has been exercised without regard to race or gender and as such would not be challenged under Batson. Who is next?

JUROR NO. 23, MARTHA BRIDGES:

HELFRICH: We would tender juror 22 Alex Smith. We would strike juror 23, Martha Bridges. In her questionnaire says, Yes, I am sick with back and knee problems, cannot sit or stand a long time; try to work two or three days a week to survive, working by myself so my business would be closed; please excuse me; she does not want to serve; she has medical problems.

THE COURT: That is S6.

ADELMAN: Your Honor, we would note for the record this is a black female, and they have struck the next tendered black as well as another female. This juror did not indicate at any time during voir dire that she would be unable to perform her duties as juror. Her opinion as to the death penalty, It depends on the circumstances. We would submit that the reason given is not race neutral in light of Batson nor is it gender neutral.

THE COURT: The Court is of the opinion that the juror was not struck for the basis of race or gender and as such will not be excused under Batson.

JUROR NO. 36, GLORIA GRAYER:

MR. HELFRICH: No. 36, we would strike Gloria Grayer. Her brother was a victim of a shooting, and she did not want to know the outcome of the case, and for that reason we would strike her.

MR. ADELMAN: For the record, we note that she is a black female. She is the third black tendered and of course the third strike of a black by the prosecution in this case. She was very open. Her opinion of the death penalty was: In some cases justified; in some cases life with no parole is best; she was an open juror. I remember her vividly saying that none of the things would affect her and she could keep an open and clear mind. *fn5

THE COURT: Note for the record that she is a member of the African-American race; however, for the reasons tendered to the Court, the Court will rule she was not stricken for racially motivated reasons under Batson versus Kentucky.

JUROR NO. 43, HARVEY WESBY:

MR.HELFRICH: Juror 43, we will strike, Harvey Wesby.

THE COURT: S-10.

MR. ADELMAN: Your Honor, for the record we note that Wesby is a black male. They have now struck all four blacks on the jury panel.

THE COURT: Let me hear your reasoning on the strikes.

MR. HELFRICH: For the record, Your Honor, the Defendant - -before I get into my reasoning, the Defendant is white and the victim is white. I don't know if that has been clear in the record; I would like that in the record. On his questionnaire, where he says he is pro - - on the death penalty it's okay. He is flippant, and he was not responsive to the question in open court, and for those reasons we would strike him. *fn6

MR. ADELMAN: For the record, under Batson and subsequent progeny including Powers versus Ohio it is irrelevant whether or not the Defendant is white and the victim is white. We submit that Wesby in his questionnaire is totally open; he said the death penalty was okay. I would like to know what is flippant about that. He works regularly in shipping and receiving. They have not given a race neutral reason.

MR. JONES: If the Court please, his answer on here, he says, It is okay. He did not respond in court about the death penalty. The death penalty is a race neutral reason to strike based upon that, and I am satisfied with the response.

MR. ADELMAN: Jones asked; were there any jurors who could not set aside whatever their opinion was and apply it to the facts and law.

THE COURT: The Court is of the opinion that strike was not based along racially motivated lines and as such will not be excluded under Batson.

¶37. The fact that all four blacks were stricken from the jury does not necessarily create an automatic inference of purposeful discrimination. The State used all 12 peremptory strikes; 8 were used to eliminate whites. The case at bar is similar to the circumstances in Davis v. State, 551 So. 2d 165 (Miss. 1989). Specifically, in Davis, the defendant was black, and the all-white jury was composed of four men and eight women. However, even though the State had exercised seven of its twelve peremptory challenges to eliminate blacks, the trial court determined no pattern of discrimination was shown in view of the five challenges the State also used against whites. Thorson, 653 So. 2d at 898 (citing Davis, 551 So. 2d at 170) (Smith, J., Dissenting). Additionally, the case at bar is distinguishable from Conerly v. State, 544 So. 2d 1370, 1372 (Miss. 1989), wherein the State only used five peremptory strikes, all to eliminate black jurors. Had the State in the case at bar used only four peremptory strikes and only to eliminate black jurors, this would have been sufficient to create an inference of purposeful discrimination.

¶38. The inference of purposeful discrimination was not automatically invoked in this case. The trial Judge did not make a ruling that Puckett had established this inference. The trial Judge did not make on-the-record factual determinations and inquiry independently as required by Hatten regarding each peremptory challenge. We therefore remand this issue for a properly conducted Batson hearing in accordance with this opinion.

IV. WHETHER THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE GRUESOME AND PREJUDICIAL PHOTOGRAPHS, AS WELL AS VIDEOTAPE OF DEFENDANT?

¶39. Puckett maintains that the trial Judge erred in admitting twenty-one (21) photographs into evidence as well as a videotape of the defendant. Puckett acquiesces that the trial court is granted broad discretion in ruling on the admissibility of photographs, but maintains that the photographs admitted in the case at bar did not have any probative value and as such were not admissible since the probative value was substantially outweighed by the danger of unfair prejudice. Puckett further cites Sudduth v. State, 562 So. 2d 67 (Miss. 1990) in support of his argument that the pictures "present no probative value, in light of the fact that none of the following questions were at issue in this cause; corpus delicti; cause of death; location or identity of the victim."

¶40. As in the case at bar, the defendant in Noe v. State, 616 So. 2d 298 (Miss. 1993) claimed that the photographs admitted into evidence "were not only gruesome and inflammatory, but served no useful evidentiary purpose because the defendant was willing to stipulate that the victim was Steven Wilson and that Wilson died as a result of a gunshot wound to the chest." Id. at 303. However, this Court held "[w]here, . . . , photographs have probative value, stipulations such as this are not an impediment to admissibility." Id. Although the Noe decision deals primarily with the admissibility of autopsy ...


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