CURTIS GIOVANNI FLOWERS a/k/a CURTIS FLOWERS a/k/a CURTIS G. FLOWERS
STATE OF MISSISSIPPI
OF JUDGMENT: 06/19/2010
COUNTY CIRCUIT COURT, HON. JOSEPH H. LOPER, JR. JUDGE
COURT ATTORNEYS: ALISON R. STEINER ANDRE de GRUY RAY CHARLES
CARTER DOUG EVANS CLYDE HILL.
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
ALISON R. STEINER SHERI LYNN JOHNSON KEIR M. WEYBLE.
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BRAD A. SMITH JASON L. DAVIS.
DISTRICT ATTORNEY: DOUG EVANS.
Curtis Giovanni Flowers was indicted on four counts of
capital murder with the underlying felony of armed robbery,
stemming from the 1996 murders of four employees of Tardy
Furniture Store in Winona, Mississippi. Following his sixth
trial, he was convicted on all four counts of capital murder
and sentenced to death. The Court affirmed his convictions
and death sentence in Flowers v. State, 158 So.3d
1009 (Miss. 2014) (Flowers VI). Flowers filed a
petition for a writ of certiorari with the United States
Supreme Court. In Flowers v. Mississippi, 136 S.Ct.
2157 (2016), the Supreme Court granted Flowers's petition
for a writ of certiorari, vacated the Court's judgment in
Flowers VI, and remanded the case to the Court for
further consideration in light of Foster v. Chatman,
136 S.Ct. 1737 (2016).
The Supreme Court decided Foster after Flowers
VI had been decided by the Court. Because the sole
issue raised in Foster was whether the
prosecution's use of peremptory strikes was racially
motivated in violation of Batson v. Kentucky, 476
U.S. 79 (1986), the Supreme Court's order pertains to
only one issue raised by Flowers in his latest appeal to the
Court-the Batson issue. Accordingly, the remaining
issues addressed by the Court in Flowers VI were not
disturbed and the Court's opinion as to the remaining
issues is reinstated as fully set out herein.
On remand, the Court afforded the parties an opportunity to
submit supplemental briefs in light of Foster as
directed by the Supreme Court. After review and further
consideration in light of Foster, we discern no
Batson violation and reinstate and affirm
Flowers's convictions and death sentence.
Background and Procedural History
At approximately 9:00 on the morning of July 16, 1996, Bertha
Tardy, the owner of Tardy Furniture Store, called Sam Jones
and asked him to come to the store to train two new
employees. When Jones arrived at the store a short time
later, he discovered the bodies of Bertha Tardy, Robert
Golden, Carmen Rigby, and Derrick Stewart. All four victims
had been shot in the head; Stewart was the only victim still
alive when Jones arrived. Jones went to a nearby business and
asked an employee to call the police. Johnny Hargrove, the
City of Winona Police Chief, was the first law enforcement
officer to arrive; he called for backup and ambulance
services. Shell casings from 0.380 caliber bullets were
recovered from the scene, and a bloody shoeprint was found
near one of the victims.
Shortly after officers arrived at the scene, law enforcement
officers received a call about an auto burglary at Angelica
Garment Factory in Winona. Deputy Sheriff Bill Thornburg
responded, and he learned that someone had burglarized Doyle
Simpson's car and had stolen a 0.380 caliber pistol.
Katherine Snow, an Angelica employee, placed Curtis Flowers
at Simpson's car around 7:15 that morning.
Police interviewed Flowers around 1:30 that afternoon, and
Flowers consented to a gunshot residue test. Police
interviewed Flowers again two days later on July 18, 1996.
Flowers claimed to have been babysitting his girlfriend's
children on the morning of the murders, but he provided
inconsistent statements about his schedule. During the July
16 interview, Flowers said that he woke up around 6:30 a.m.
on the day of the murders and went to his sister's house
around 9:00 a.m., then went to a local store around 10:00
a.m. On July 18, Flowers said that, on the morning of the
murders, he woke up around 9:30 a.m., went to his
sister's house around noon, and went to the store at
approximately 12:45 p.m. Flowers told investigators that he
had been employed at Tardy Furniture for a few days earlier
that month, but he had been fired on July 6 after he did not
show up for a few days. Flowers moved to Texas in September
1996. After further investigation, Flowers was arrested and
brought back to Mississippi. He was indicted on four separate
counts of capital murder in March 1997.
Flowers was tried for the murder of Bertha Tardy in October
1997. After a change of venue from Montgomery County to Lee
County, Flowers was convicted and sentenced to death. Flowers
appealed and we reversed and remanded for a new trial on the
ground that Flowers's right to a fair trial had been
violated by admission of evidence of the other three murder
victims. Flowers v. State, 773 So.2d 309 (Miss.
2000) ("Flowers I"). Flowers's second
trial was for the murder of Derrick Stewart; it was held in
Harrison County in March 1999. The jury returned a guilty
verdict and sentenced Flowers to death. On appeal, we again
reversed and remanded for a new trial. The Court held that
Flowers's right to a fair trial had been violated, again,
by admission of evidence of the other victims and by the
prosecution arguing facts that were not in evidence.
Flowers v. State, 842 So.2d 531 (Miss. 2003)
The Montgomery County Circuit Court held Flowers's third
trial in 2004 and tried him for all four murders. The jury
found Flowers guilty and sentenced him to death. Finding that
the State had engaged in racial discrimination during jury
selection, the Court once again reversed and remanded the
case for a new trial. Flowers v. State, 947 So.2d
910 (Miss. 2007) ("Flowers III").
Flowers's fourth and fifth trials also were on all four
counts of capital murder. Both resulted in mistrials when the
jury was unable to reach a unanimous verdict during the
culpability phase. The State did not seek the death penalty
in the fourth trial but did seek it in the fifth trial.
The circuit court conducted Flowers's sixth trial, the
subject of the instant appeal, in June 2010 in Montgomery
County. The State tried Flowers for all four murders. The
State called twenty-one witnesses in its case-in-chief.
Police Chief Johnny Hargrove was the State's first
witness. Hargrove testified that police had found a bloody
shoeprint at the scene. Hargrove had asked the District
Attorney's Office and the Highway Patrol to help
investigate the murders. Mississippi Highway Patrol
Investigator Jack Matthews testified that he saw a bloody
shoeprint and shell casings scattered near the bodies.
Matthews testified that cash was taken from the store during
the murders and that he found Flowers's time sheet and a
check made out to him for $82.58 on Bertha Tardy's desk.
Matthews said that, according to the documents on Bertha
Tardy's desk, the store would have had $300 cash on hand
that morning. However, there was only change, no bills, in
the cash drawer. During his investigation, Matthews spoke
with Roxanne Ballard, Bertha Tardy's daughter, and
learned that Flowers recently had been fired from his job at
Tardy Furniture. Matthews testified that $235 was found
hidden in Flowers's headboard after the murders. He also
testified that Flowers wore a size ten-and-a-half shoe.
Ballard was the bookkeeper at Tardy Furniture and had worked
in the store her whole life. Looking at the books from the
morning of the murders, Ballard testified that the store had
$400 in the cash drawer that morning. However, she confirmed
Matthews's testimony that the books showed $300, but
Ballard saw a receipt for a late charge in the amount of
$100, so she knew the drawer had contained a total of $400.
Ballard testified that $389 was missing from the cash drawer
after the murders. Also, looking at pictures from the crime
scene, Ballard testified that the photos showed a bank bag
lying wide open on a pile of fabric swatches. She testified
that the bank bag was always closed and it should have been
in a drawer or on Carmen Rigby's desk.
Melissa Schoene, a crime scene expert with the Mississippi
Crime Laboratory, testified that she took impressions of the
bloody shoeprint and collected the 0.380 caliber casings.
Sheriff Bill Thornburg testified that he had gone to Angelica
Garment Factory on the day of the murders to investigate
Doyle Simpson's stolen 0.380 caliber pistol. Thornburg
testified that it looked like a screwdriver or tire iron had
been used to pry open the glove box of Simpson's car.
Thornburg also went to Simpson's mother's home to
collect spent 0.380 hulls from Simpson's gun. A few days
after the murders, Thornburg searched the home of Connie
Moore, Flowers's girlfriend. He found a size
ten-and-a-half Fila Grant Hill shoebox in a dresser at
David Balash, a firearms identification expert, testified
that the bullets collected from Tardy Furniture either
matched the bullets or were consistent with the bullets
collected from Simpson's mother's house. Joe Andrews,
a forensic scientist specializing in trace evidence,
testified that Flowers's gunshot residue test revealed
one particle of gunshot residue on the back of Flowers's
right hand. Andrews also analyzed the shoeprint found at
Tardy Furniture, and he determined that the print was
consistent with size ten-and-a-half Fila Grant Hill tennis
shoes. Patricia Hallmon Odom Sullivan, one of Flowers's
neighbors, testified that she saw Flowers wearing Fila Grant
Hill tennis shoes at 7:30 a.m. on the day of the murders.
Elaine Goldstein, another neighbor, testified that she had
seen Flowers wear Fila Grant Hill tennis shoes a couple of
months before the murders.
Multiple witnesses placed Flowers at or around Angelica
Garment Factory and Tardy Furniture on the morning of the
murders. Katherine Snow, an Angelica Garment Factory
employee, testified that she saw Flowers leaning against
Simpson's car at 7:15 on the morning of the murders. Snow
also identified Flowers in a photographic lineup and in
court. James Kennedy testified that he saw Flowers walking
toward Angelica Garment Factory at 7:15 a.m. Edward
McChristian testified that he saw Flowers walking north, away
from Angelica Garment Factory, between 7:30 and 8:00 a.m.
Mary Jeanette Fleming testified that she saw Flowers walking
toward Tardy Furniture at approximately 9:00 a.m. Beneva
Henry testified that she saw Flowers walking toward downtown
Winona, in the direction of Tardy Furniture, sometime between
9:00 and 9:30 a.m. Clemmie Fleming testified that she was
going to Tardy Furniture to pay a bill a little after 10:00
a.m, and she saw Flowers running away from the back of Tardy
Porky Collins testified that he saw two African-American men,
who appeared to be arguing, outside Tardy Furniture at around
10:00 on the morning of the murders. Collins circled the
block and returned to where he saw the men arguing; at that
point, the men were headed toward Tardy Furniture. Collins
identified Flowers as one of the men he saw that morning.
Doyle Simpson testified that his 0.380 caliber pistol was in
his car's glove compartment when he arrived at Angelica
the morning of July 16, 1996. Simpson discovered that his gun
was missing at approximately 11:00 a.m. that day. Simpson,
who was Flowers's uncle, testified that Flowers knew he
had a gun and that Flowers had seen it in his car before.
Odell Hallmon, a jailhouse informant who had been in a cell
next to Flowers, testified that Flowers had confessed to
killing four people at Tardy Furniture.
After the State's case-in-chief, the defense moved for a
directed verdict, which the trial court denied. The first
witness to testify in the defense's case-in-chief was
Mike McSparrin, a fingerprint expert. McSparrin testified
that the fingerprints found at the crime scene, as well as on
the Fila shoebox, did not match Flowers's fingerprints.
The defense also called Steve Byrd, a firearms forensic
analyst. Byrd testified that he could not definitively
determine whether all of the bullets recovered from the crime
scene were fired from the same gun. James Williams, a law
enforcement investigator, testified that he did not see a
bloody footprint when he first arrived at Tardy Furniture.
Billy Glover testified that, on the day of the murders, he
saw Flowers around 9:00 a.m. at a friend's house and that
they talked for fifteen or twenty minutes. Connie Moore,
Flowers's girlfriend at the time, testified that she had
purchased a pair of size ten-and-a-half Fila Grant Hill
tennis shoes for her son.
Stacey Wright testified that Clemmie Flemming had admitted to
her that she had lied about seeing Flowers running away from
Tardy Furniture on the morning of the murders. Wright
testified that Clemmie had said she would get money or have
her bill paid at Tardy Furniture in return for her statement
against Flowers. Clemmie's sister, Mary Flemming,
testified that she was with Clemmie the morning of the
murders and that Clemmie did not go to Tardy Furniture to pay
her bill that morning. Latarsha Blissett also testified that
Clemmie had told her that if she made a statement against
Flowers, she would get money or have her account at Tardy
Furniture paid. Further, Blissett testified that
investigators had asked her if she knew Flowers's shoe
size and had implied that she would receive reward money for
providing a statement. Kittery Jones, Flowers's cousin,
also testified that investigators had implied that he would
receive reward money in return for providing a statement
linking Flowers to the murders.
On June 18, 2010, the jury returned a guilty verdict for all
four murders. Following the sentencing hearing, the jury
sentenced Flowers to death. The jury found the following
aggravating circumstances beyond a reasonable doubt: (1) the
defendant knowingly created a great risk of death to many
persons; (2) the capital offenses were committed while the
defendant was engaged in the commission of an armed robbery
for pecuniary gain; and (3) the capital offenses were
committed for the purpose of avoiding or preventing lawful
arrest or effecting an escape from custody. Flowers filed a
motion for judgment notwithstanding the verdict (JNOV) or, in
the alternative, for a new trial, which was denied. Flowers
timely filed a notice of appeal.
Flowers raises the following thirteen assignments of error on
1. The evidence presented at Flowers's trial was
constitutionally insufficient to support a finding of guilt
beyond a reasonable doubt, as mandated by the Fifth and
Fourteenth Amendments to the United States Constitution and
Section Fourteen of the Mississippi Constitution.
2. Flowers's right to a fair trial, as guaranteed by
Mississippi law and the Fourteenth Amendment to the United
States Constitution, was violated when the prosecution
repeatedly argued material facts not in evidence during its
culpability phase closing argument.
3. The in-court and out-of-court eyewitness identifications
of Flowers by Porky Collins were constitutionally unreliable
and the trial court erred in overruling Flowers's
objections to their admission.
4. The trial court's exclusion of expert testimony
explaining the deficiencies in law enforcement's
investigation, and the defects in the composition of the
photo lineups shown to Porky Collins, violated Mississippi
law and Flowers's right to present a defense as
guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution.
5. The trial court erred in refusing to exclude prosecution
testimony that a single particle of gunshot residue had been
detected on Flowers's hand.
6. The jury selection process, the composition of the venire
and the jury seated, and pervasive racial and other bias
surrounding this matter violated Flowers's fundamental
constitutional rights protected by the Sixth and Fourteenth
a. The prosecutor violated the Equal Protection Clause of the
Fourteenth Amendment when he struck five African American
jurors after utilizing disparate questioning and citing
b. The jury failed to adequately deliberate because it was
influenced by racial bias in violation of the Due Process and
Equal Protection Clauses of the Fourteenth Amendment.
c. Pervasive racial bias in the venire infected the fairness
of the proceedings, and requires reversal and remand for a
7. The State's six attempts to convict Flowers of the
same offense violated the Double Jeopardy Clause of the Fifth
Amendment and the Due Process Clause of the Fourteenth
8. The trial court reversibly erred in refusing Flowers's
requested circumstantial evidence instructions at the
9. The trial court reversibly erred in the penalty phase
instructions to the jury.
10. The convictions and death sentences in this matter were
obtained in violation of the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and the
counterparts in the Mississippi Constitution.
11. This Court should set aside its prior order denying
Flowers's Motion for Remand and Leave to File
Supplemental Motion for New Trial.
12. The death sentence in this matter is constitutionally and
13. The cumulative effect of the errors mandates reversal of
the verdict of guilt and/or the sentence of death entered
pursuant to it.
address each of Flowers's issues but have summarized and
reorganized several issues for the purpose of discussion.
Heightened scrutiny is applied to review of capital murder
convictions where the death sentence has been imposed.
Fulgham v. State, 46 So.3d 315, 322 (¶ 16)
(Miss. 2010) (citing Bishop v. State, 812 So.2d 934,
938 (¶ 7) (Miss. 2002)). "What may be harmless
error in a case with less at stake [may become] reversible
error when the penalty is death." Id. The
standard of review for each issue will discussed throughout.
Whether the in-court and out-of-court identifications of
Flowers by Porky Collins were constitutionally unreliable,
and whether the trial court erred in overruling Flowers's
objections to their admission.
Flowers claims that the trial court erred in admitting
evidence of Porky Collins's out-of-court and in-court
identifications of Flowers. Collins died in 2002, so his
testimony from the 1999 trial was read to the jury.
Collins's testimony was that, on the morning of the
murders, he had seen two African-American men who appeared to
be arguing outside Tardy Furniture. Collins thought the men
were about to fight, so he circled the block and returned to
see what was going on. The second time Collins saw the men,
they were walking toward Tardy Furniture. Collins saw only
one man's face when he drove past them.
After hearing about the murders at Tardy Furniture, Collins
went to police the same day, reported what he had seen that
morning, and gave a description of the men. On August 24,
1996, police showed Collins two photo arrays with six photos
each - the first group included Doyle Simpson's
photograph; the second group included Flowers's
photograph. Collins testified that he was not expected to
identify the man whose face he did not see. According to
police department notes, in response to the first photo
array, Collins pointed to Simpson and said that he
"looked like" the man he had seen, but he was
unable to be positive. The entirety of the officer's
handwritten notes were as follows:
Picture Line-up 11:10 a.m.
#1 and #3 resembles, but hairline was further back
#6 Pointed to Simpson said hairline like this, may have
appeared a little darker.
"But it looks like him."
"Face was also same shape, round like this."
"Unable to be positive."
then was shown the second photo array, and he identified
Flowers as the man he had seen in front of Tardy Furniture.
The officer administering the photo array made the following
2nd Line Up
Pointed to Curtis Flowers #4
"I think that's him."
"He was about my height."
"The complexion is also right."
"I believe that's him, it look[s] like him."
I asked Porky if he knew Curtis Flowers, he said, "No.
But I know the person I just identified is the person I saw
in front of Tardy's 7-16-96."
the 1999 trial, Collins identified Flowers in court as the
man whose face he had seen outside Tardy Furniture. Flowers
filed a pretrial motion to suppress Collins's
out-of-court and in-court identifications, which the trial
court denied. On appeal, Flowers claims that the trial court
erred in admitting Collins's identifications into
The standard of review for a trial court's suppression
hearing findings regarding pretrial identifications is
whether "substantial credible evidence supports the
trial court's findings that, considering the totality of
the circumstances, in-court identification testimony was not
impermissibly tainted." Butler v. State, 102
So.3d 260, 264 (¶ 8) (Miss. 2012) (quoting Gray v.
State, 728 So.2d 36, 68 (¶ 159) (Miss. 1998)). For
an out-of-court or in-court identification to be excluded,
"it must be the result of an impermissibly suggestive
lineup and the identification must be
unreliable." Butler, 102 So.3d at 264 (¶
8) (citing York v. State, 413 So.2d 1372, 1383
(Miss. 1982)). First, the court must "determine whether
the identification process was unduly suggestive."
Latiker v. State, 918 So.2d 68, 74 (¶15) (Miss.
2005) (citing Neil v. Biggers, 409 U.S. 188, 198
(1972)). Second, even if the identification process was
unduly suggestive, the identification still can be admitted
if "the out-of-court identification was nevertheless so
reliable that no substantial likelihood of misidentification
Collins's Out-of-Court Identification
Flowers claims that the out-of-court photo lineup was unduly
suggestive because the photo array was skewed toward Flowers
in several ways. He claims that his head was larger than the
others and that the other men had lighter complexions, were
younger than him, and had varying hairstyles and facial
features. We have summarized the standard applied to
out-of-court identifications as follows:
A lineup or series of photographs is impermissibly suggestive
if "the accused, when compared with the others, is
conspicuously singled out in some manner from the others,
either from appearance or statements by an officer." . .
. To be excluded, an out-of-court identification must have
resulted from an identification procedure that was so
impermissibly suggestive as to give rise to "a very
substantial likelihood of misidentification." . . .
Where the defendant is "the only one depicted with a
distinctive feature, " courts usually will find the
lineup to be impermissibly suggestive. . . . On the other
hand, "minor differences" with the suspects or
differences in the photograph backgrounds will not render a
lineup impermissibly suggestive. . . .
Butler, 102 So.3d at 264-65 (¶¶ 9-11)
(citations omitted). Applying the standard articulated in
Butler, we recently held that a photo lineup was not
impermissibly suggestive even though the defendant was the
only person in the lineup with facial tattoos. Stewart v.
State, 131 So.3d 569, 574 (¶ 16) (Miss. 2014). In
Stewart, we concluded:
We find that the case sub judice is similar to the
cases of White, Foster, and Jones,
in which this Court upheld similar identifications. In
White, the witness noticed the defendant's
plaited hair and forehead tattoo during the commission of the
crime. White v. State, 507 So.2d 98, 99 (Miss.
1987). This Court upheld the out-of-court and in-court
identifications of the defendant even though the defendant
was the only suspect in the lineup with plaited hair.
Id. at 99-101. The defendant also had a forehead
tattoo, which the witness identified at trial. BI at 99-100.
In Foster, this Court upheld the out-of-court and
in-court identifications of the defendant even though he was
the only person in the lineup wearing a fishing hat, where
the defendant had worn a fishing hat during the robbery.
Foster v. State, 493 So.2d 1304, 1305-06 (Miss.
1986). Likewise, in Jones, this Court upheld the
out-of-court and in-court identifications of the defendant
even though he was the only suspect in the photo lineup
wearing a hat similar to the one worn by the attacker.
Jones v. State, 504 So.2d 1196, 1199-1200 (Miss.
1987). This Court found that, even though the hat may have
played a significant part in the identification, it was not
impermissibly suggestive, because the witness had given an
accurate description and identified the defendant with great
conviction at trial. Id. at 1200.
Id. at 573 (¶ 12).
In the photo array that included Flowers's photograph,
Flowers's head is slightly larger than the others, as it
appears his photo was taken from a closer angle than the
others. However, the use of a different photographic
technique creates only a minor difference, and that is not
enough to render the photo lineup impermissibly suggestive.
Batiste v. State, 121 So.3d 808, 856 (¶ 116)
(Miss. 2013). The other characteristics Flowers claims caused
the array to be suggestive are not present - three other men
have complexions similar to Flowers's complexion; Flowers
appears to be the same age or only slightly older than the
other men; two of the other men have hair styles similar to
Flowers's; and three of the other men have facial hair
similar to his. Accordingly, Flowers fails to show that the
lineup was unduly suggestive. Further, Collins provided a
description to police on the day of the murders, and he was
confident in his identification of the man he saw in front of
Tardy Furniture. The trial court did not err in admitting
Collins's out-of-court identification. Because the lineup
was not impermissibly suggestive, we need not consider the
Biggers factors for reliability.
Collins's In-Court Identification
Although Flowers's issue statement asserts that
Collins's in-court identification was
"constitutionally unreliable, " he provides no
substantive argument or support for that claim. The extent of
his argument is a footnote, which provides: "there is no
issue of the admissibility of the in-court identification,
given that Collins could not positively identify Flowers in
the courtroom at the second trial, and was deceased by the
time of this, the sixth trial." His assertion is
incorrect. Collins unequivocally identified Flowers at the
second trial. Flowers also implies that the typical jury
consideration of determining Collins's credibility is not
applicable in the case sub judice because his
testimony was read to the jury, as opposed to live testimony.
Although the jury did not personally observe Collins
testifying, defense counsel's cross-examination of
Collins adequately addressed credibility. For example,
defense counsel asked Collins about his memory, any
medication he was taking that could affect his memory, and
whether he wore glasses. The characteristics of trial itself
- trial by jury, an impartial judge, representation by
counsel, and witnesses subject to an oath and
cross-examination - adequately protect against any
suggestiveness of in-court identifications at trial.
Galloway v. State, 122 So.3d 614, 663 (¶ 164)
Although Flowers does not claim that Collins's in-court
identification was tainted by the alleged suggestiveness of
the out-of-court identification, that is the argument often
made by defendants. See Butler, 102 So.3d at 266-67.
We have held that "an impermissibly suggestive pretrial
identification does not preclude in-court identification by
an eyewitness who viewed the suspect at the procedure,
unless: (1) from the totality of the circumstances
surrounding it, (2) the identification was so impermissibly
suggestive as to give rise to a very substantial likelihood
of irreparable misidentification." Id.
at 267 (¶ 17) (quoting York, 413 So.2d at
1383). Collins's out-of-court identification was not
impermissibly suggestive; therefore, it could not give rise
to the likelihood of an irreparable misidentification. For
the reasons given above, the issue is without merit.
Whether the trial court's exclusion of expert
testimony violated Mississippi law and Flowers's right to
present a defense as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution.
Flowers contends that the trial court erred by excluding the
testimony of two experts - Robert Johnson and Dr. Jeffrey
Neuschatz. Flowers tendered Johnson as an expert in criminal
investigation procedures, but the trial court did not permit
Johnson to testify. In Flowers's fourth trial, he filed a
motion to determine the admissibility of Dr. Neuschatz's
testimony on the reliability of eyewitness identification
evidence. Flowers renewed the motion in the present case, and
the trial court denied the motion.
We apply an abuse of discretion standard when reviewing the
exclusion of expert testimony. Gillett v. State, 56
So.3d 469, 494 (¶ 61) (Miss. 2010). Analysis of the
admissibility of expert testimony begins with Mississippi
Rule of Evidence 702:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
Miss. R. Evid. 702. The expert testimony must be both
relevant and reliable to be admissible. Gillett, 56
So.3d at 495 (¶ 63). "Expert testimony is relevant
if it will 'assist the trier of fact in understanding or
determining a fact at issue.'" Galloway,
122 So.3d at 632 (¶ 27) (quoting Ross v. State,
954 So.2d 968, 996 (¶ 57) (Miss. 2007)). To determine
reliability, the following nonexhaustive list of factors may
be considered: whether the expert's theory can be or has
been tested; whether the theory has been the subject of peer
review and publication; the known or potential rate of error
of the technique or theory when applied; the existence of
standards to control the technique's operation; and the
general acceptance the theory has garnered in the relevant
expert community. Gillett, 56 So.3d at 495 (¶
64) (citing Miss. Transp. Comm'n v. McLemore,
863 So.2d 31, 37 (Miss. 2003); Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 592-94 (1993)). "The
applicability of these factors varies depending on the nature
of the issue, the expert's particular expertise, and the
subject of the testimony." Gillett, 56 So.3d at
495 (¶ 64) (citing McLemore, 863 So.2d at 37).
Flowers attempted to call Robert Johnson as an expert in
criminal investigation procedures, and the State objected.
Johnson would have testified that the criminal investigation
was flawed in various ways. After a lengthy voir dire, the
trial court held that Johnson could not testify because
"there is no valid way of testing the field of police
investigatory techniques." The trial court also found
that, even if Johnson's testimony met the reliability
prong of Daubert, the testimony was cumulative
because the law enforcement officers who already had
testified at trial were throughly cross-examined and had
admitted that there were flaws in the investigation. Flowers
also attempted to have Johnson give an expert opinion
relating to the photographic array shown to Collins. The
trial court excluded the testimony because Johnson stated
during his voir dire that he did not have sufficient
information about the lineup.
Johnson's Proffered Testimony
During the voir dire, Johnson testified at length about his
law enforcement experience. Johnson is currently a law
enforcement consultant and previously served as police chief
in Jackson, Mississippi; Jackson, Michigan; and Lansing,
Michigan. He was Commissioner of the Mississippi Department
of Corrections from 2000 to 2002. Johnson has a master's
degree in public administration, and he graduated from the
FBI National Academy and the FBI Law Enforcement Executive
Development program. During his career, Johnson performed
homicide investigations as a detective and directly
supervised homicide investigations. Johnson also developed
protocols for criminal investigations.
Johnson testified that generally accepted standards for
homicide investigations exist, and he opined that the
investigation in today's case failed to meet them in
various ways. First, Johnson said the investigation lacked
management and organization. In support of his contention,
Johnson referred to the testimony of law enforcement officers
who said the investigation was a "shared
responsibility." Johnson also said the investigation
lacked an in-depth case file, which should have included all
original notes and reports. Johnson testified: "There
has to be somebody who is the recipient of all the
information coming from a variety of sources and is able to
correlate that information and further direct the direction
that the investigation needs to develop." He said that
the investigation also lacked written reports of events.
Johnson next criticized the crime scene integrity. Johnson
said that the integrity of the crime scene could have been
compromised by law enforcement officers and investigators
meeting within the crime scene to discuss and organize the
investigation. According to Johnson, a crime scene log should
have been maintained listing who came and went from the crime
scene to ensure that it was not contaminated. Next, Johnson
testified that he was "concerned" about the
investigation's early focus on one suspect - Flowers - to
the exclusion of any other suspects. Johnson said early focus
can result in lost evidence: "It's okay to very
quickly focus on one suspect; that happens all the time, you
know. But to the exclusion of all else and all others is
where it becomes problematic, and you sometimes lose vital
evidence that may be had because you haven't included and
kept them in as a potential suspect or person of
On cross-examination, Johnson admitted that Mississippi has
no minimum standards for criminal investigations. He also
admitted that the Justice Department guidelines he mentioned
in direct examination were not requirements and that there
are no national minimum standards for criminal
investigations. Johnson stated that, rather than minimum
standards, he based his opinions on generally accepted
practices in police work. Further, when asked if he could
provide an opinion on whether investigations that lack
written reports lead to incorrect results, Johnson said
investigations with written reports are "more
complete." He did not, however, state that an
investigation without a written report would lead to an
Admissibility of Johnson's Testimony
The Daubert factors apply to expert testimony
relating to police investigatory techniques. See Ross v.
State, 954 So.2d 968, 996-97 (Miss. 2007)
("Ross I"). In Ross I, the
defendant proffered an expert who opined that the securing of
the crime scene and evidence collection were deficient.
Id. at 997 (¶ 61). Although the Court held the
testimony did not meet the reliability standards of
Daubert and McLemore, the opinion did not
discuss why the testimony was unreliable. Id. The
judgment was reversed and the case remanded for other
reasons. Id. at 1019-20 (¶¶ 138-41). The
defendant was convicted again and appealed, and the case was
assigned to the Court of Appeals. Ross v. State, 22
So.3d 400 (Miss. Ct. App. 2009) ("Ross
II"). In Ross II, the Court of Appeals
addressed the proffered expert testimony and found that the
trial court did not err in excluding the testimony.
Id. at 420-21 (¶¶ 99-104). First, the
expert testimony was cumulative because the investigating
officers had been cross-examined about their investigative
techniques and had admitted that "things could have been
handled better." Id. at 421 (¶ 102).
Second, the trial court did not abuse its discretion by
finding that the testimony failed to meet the
Daubert reliability prong because the expert's
"memberships and associations were voluntary and fee
based, not peer reviewed or tested" and "the trial
court was unable to evaluate the value of [the expert's]
certifications because the trial court was unaware of the
requirements for certification." Id. at 421
Under Rule 702, the first prong of the inquiry for
determining whether expert testimony should be admitted is
whether the witness is "qualified by virtue of his or
her knowledge, skill, experience[, ] or education."
Galloway, 122 So.3d at 632 (¶ 28) (quoting
McLemore, 863 So.2d at 35). Johnson certainly is
qualified through his knowledge, experience, and training in
the field of criminal investigations. Further, there is no
question that Johnson's testimony is relevant.
Johnson's testimony addressed facts relating to the
criminal investigation that eventually led to Flowers's
arrest; thus, his testimony had a "tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence." Miss. R. Evid.
The critical inquiry, however, is whether Johnson's
testimony is reliable. The trial court focused on the
inability to test Johnson's theories as a basis for
excluding the testimony, holding: "Because there is no
valid way of testing the field of police investigatory
techniques, this Court finds the proposed testimony in the
field fails to meet the reliability standards required under
Rule 702." Whether the expert's theory can be tested
is one factor to be considered under Daubert, but it
is not conclusive. Johnson's proffered testimony is not
the typical expert testimony contemplated by the testing
factor - for example, one cannot test what effect the lack of
organization and leadership would have on a murder
investigation. As such, reliance on the testing factor alone
would have been error. However, the trial court cited other
reasons for excluding the testimony.
The trial court also found that, although Johnson testified
that the investigation fell below generally accepted
standards and practices in law enforcement, Johnson did not
sufficiently articulate the standards. See McGee v. River
Region Med. Ctr., 59 So.3d 575, 579 (¶ 13) (Miss.
2011) (An expert testifying about a failure to meet generally
accepted standards must "identify and articulate the
requisite standard that was not complied with.") A
review of the proffered testimony reveals that Johnson did
articulate standards relating to some - but not all - of his
opinions. Johnson offered four opinions: (1) that the
investigation lacked organization and management; (2) that
the integrity of the crime scene was compromised; (3) that
the investigation focused on one suspect too quickly; and (4)
that the photo lineup used during Collins's
identification was flawed. Johnson did not articulate a
standard for his opinion relating to the investigation's
early focus on Flowers as a suspect. And Johnson said that he
was not familiar with the procedures used during
Collins's identification. Thus, the trial court did not
err in excluding his testimony. See Dedaux Util. Co.,
Inc. v. City of Gulfport, 938 So.2d 838, 841 (Miss.
2006) (expert testimony must be based on sufficient facts and
Johnson did provide applicable standards for his opinions
related to the investigation's organization and
management and crime scene integrity. Regarding the
investigation's organization and management, Johnson
testified that, based on his experience and knowledge, the
investigation should have had centralized leadership that
collected information, maintained the case file, and directed
the investigation. Johnson said, "There has to be
somebody who is the recipient of all the information coming
from a variety of sources and is able to correlate that
information and further direct the direction that the
investigation needs to develop." Regarding crime scene
integrity, Johnson said a crime scene log should have been
maintained at the crime scene. He explained that the crime
scene can be contaminated, evidence can be overlooked, and
evidence can be deposited after the crime. He said,
"There may be a number of issues related to the presence
of people at the crime scene, so you want to have a record of
when they were there, how long they stayed and when they
Although Johnson provided some standards on which he based
his opinions, we cannot say the trial judge abused his
discretion when he held the standards insufficient. Johnson
testified that the standards he applied in forming his
theories were "generally accepted practices in police
work." Certainly, expert testimony can be based on
experience, and one factor that may be considered in
determining reliability is general acceptance in the relevant
expert community. See Gillett, 56 So.3d at 495
(¶ 64); Daubert, 509 U.S. at 593-94. But
Johnson did not provide support for his statement that the
practices he referenced were, in fact, generally accepted.
Allowing an expert simply to state that his opinions are
based on "generally accepted practices, " without
support for the assertion, could lead to essentially
permitting experts to qualify themselves. While Johnson's
opinions and standards seem sensible, we cannot say that he
presented enough evidence that his opinions were sufficiently
reliable such that the trial court abused its discretion by
not allowing the testimony.
Further, the trial court was correct that Johnson's
testimony was cumulative. Law enforcement officers who
participated in the investigation were thoroughly questioned
about the investigation and admitted that there were flaws in
the investigation. Specifically, officers admitted that a
crime scene log was not maintained, and the police chief
testified that one should have been maintained. The officers
also admitted that there was not a lead investigator, and the
police chief testified that responsibilities should have been
assigned, an investigative plan should have been developed,
and information should have been shared with investigators
and first responders. The trial court did not commit an abuse
of discretion in not allowing Johnson's testimony.
Dr. Jeffery Neuschatz
During Flowers's fourth trial, he filed a motion to
determine the admissibility of Dr. Neuschatz's testimony
on the reliability of eyewitness identification evidence. Dr.
Neuschatz's affidavit and curriculum vitae were
attached to the motion. Dr. Neuschatz's affidavit
essentially provided two opinions: (1) that Collins's
identification of Flowers could have been affected by a
number of different circumstances; and (2) that the
identification procedure was flawed. Before the fourth trial
commenced, the State announced that it would not seek the
death penalty, and Flowers withdrew his motion regarding Dr.
At Flowers's fifth trial, the State sought the death
penalty, and Flowers renewed his motion to determine the
admissibility of Dr. Neuschatz's testimony. The court
held a hearing on the motion, but Flowers did not provide a
proffer of Dr. Neuschatz's testimony other than the
affidavit previously submitted. The trial court denied the
motion, holding that, because Collins was extensively
cross-examined, the expert testimony would not assist the
And he was extensively cross-examined, even into the most
minute detail about issues concerning what path he took
driving around town that morning. He stated in his testimony
that he had a brief glimpse of who he believed to be Mr.
There was - he was cross-examined about his ability to
remember things. He was cross-examined about whether he had
had difficulty with memory problems in the past. I mean I do
not think there could be a more thorough cross-examination of
a witness than was done with Mr. Collins.
So I think given the extensive cross-examination of Mr.
Collins and because all other witnesses knew Mr. Flowers on
sight, I do not believe an expert on witness identification
would assist the jury in the least bit in this case.
court also found that Flowers did not demonstrate that Dr.
Neuschatz's testimony was reliable based on the
Daubert factors. In the present case, Flowers
renewed his motion on the admissibility of Dr.
Neuschatz's testimony. The trial court denied the motion,
adopting its ruling from the fifth trial.
Again, in determining whether expert testimony is reliable,
the court may consider the following factors: whether the
expert's theory can be or has been tested; whether the
theory has been the subject of peer review and publication;
the known or potential rate of error of the technique or
theory when applied; the existence of standards to control
the technique's operation; and the general acceptance
that the theory has garnered in the relevant expert
community. Gillett, 56 So.3d at 495 (¶ 64)
(citing McLemore, 863 So.2d at 37, and
Daubert, 509 U.S. at 592-94). The admissibility of
Dr. Neuschatz's testimony was addressed recently in
Corrothers v. State, 148 So.3d 278 (Miss. 2014),
reh'g denied (Oct. 23, 2014). In
Corrothers, the Court applied Rule 702 and
Daubert to Dr. Neuschatz's testimony concerning
the reliability of eyewitness identification procedures and
found that Dr. Neuschatz's testimony was unreliable:
Dr. Neuschatz attempted to apply the principles and
methodologies underlying his expertise in eyewitness
identification to opine that [the eyewitness's]
identification "could" be unreliable. But Dr.
Neuschatz's opinions were undermined by his inaccurate
and incomplete understanding of the facts on which he based
his opinions and his complete lack of expertise on [the
eyewitness's] brain injury. These deficiencies rendered
his opinions so fundamentally unsupported that they could
offer no assistance to the jury and amounted to nothing more
than unsupported speculation. His testimony was unreliable,
and there was no abuse of discretion in excluding it. We
further note that Dr. Neuschatz's testimony was
inconclusive and speculative because he did not offer his
opinions to a reasonable degree of scientific certainty, but
testified only that Josh's lineup identification
"could" be unreliable and that in-court
identifications "probably" are suggestive. Nor did
Dr. Neuschatz submit any peer-reviewed publications
supporting his principles and methodologies; the trial court
had only the benefit of Dr. Neuschatz's curriculum vitae
and his testimony that his studies had been subjected to peer
review and publication and were generally accepted in the
relevant scientific community. These facts further support
the exclusion of Dr. Neuschatz's testimony.
Corrothers, 148 So.3d at 297 (¶ 35).
In the instant case, the trial court applied the
Daubert factors and held that Dr. Neuschatz's
theories were not generally accepted and that he did not
provide information about the rate of error or the principles
and methods used. As to the first factor, Dr. Neuschatz's
affidavit cited several tests that support his theory that
exposure time, appearance change/disguise, and
post-identification feedback may affect eyewitness
identifications. However, he did not submit documentation of
the tests. Regarding peer review and publication, Dr.
Neuschatz's affidavit stated that he has "published
several articles in peer reviewed journals, written peer
invited chapters, and presented [his] research findings at
regional and national conferences." Again, however, he
did not provide the articles. The same was true in
Corrothers. Corrothers, 148 So.3d at 297
(¶ 35). Dr. Neuschatz's affidavit did not mention
anything relevant to the third or fourth factors - the known
or potential rate of error of the applied theory and the
existence of standards and controls - therefore, the factors
were not satisfied. Finally, Dr. Neuschatz cited several
articles and studies supporting his theories to show that his
theory is accepted in the scientific community but again, the
articles were not submitted.
Because Flowers did not provide an additional proffer of Dr.
Neuschatz's testimony, we have no way of knowing whether
Dr. Neuschatz could have offered further support for the
Daubert factors if he had provided live testimony.
We do not hold that every expert is required to submit every
article or report on which he or she relies. However, here,
the trial judge - in exercising his considerable discretion -
found that the defense did not present sufficient evidence in
support of Dr. Neuschatz's opinions. The trial judge did
not abuse his discretion in concluding that the affidavit
alone was insufficient to withstand the Daubert
analysis and in denying Dr. Neuschatz's testimony.
Dr. Neuschatz's affidavit included two opinions: that
Collins's identification could have been affected by
several factors and that the photo identification process was
flawed. Regarding the photo array, the same issue was
addressed in Corrothers, and we held that Dr.
Neuschatz's testimony may have been more prejudicial than
probative due to the risk of confusion. Corrothers,
148 So.3d at 297 (¶ 36). Allowing testimony from Dr.
Neuschatz that the photo identification process was flawed,
while also admitting evidence of the identification because
the court determined that it was not impermissibly
suggestive, could result in confusing the jury. Thus, the trial
court did not err in excluding Dr. Neuschatz's testimony
about the photo-identification process.
As to Collins's identification, discussed at length
supra, the judge held: "[G]iven the extensive
cross-examination of Mr. Collins and because all other
witnesses knew Mr. Flowers on sight, I do not believe an
expert on witness identification would assist the jury in the
least bit in this case." The quoted finding represents
precisely the type of finding the trial judge is called upon
to make. In determining the admissibility of expert
testimony, the trial judge must determine whether the
testimony will "assist the trier of fact" in
understanding the evidence or issues, and the judge must be
satisfied that the testimony is "more probative than
prejudicial." Corrothers, 148 So.3d at 294
(¶¶ 24, 27) (citations omitted).
We recognize that many courts admit expert testimony
regarding eyewitness identification, and we do not hold that
such expert testimony is per se inadmissible.
Rather, we recognize that the decision of "whether to
admit this testimony is squarely within the discretion of the
trial judge[.]" United States v. Moore, 786
F.2d 1308, 1312 (5th Cir. 1986). In Moore, the Fifth
Circuit explained that "the trial court should exercise
its discretion in deciding whether or not to admit it and
should balance the reliability of the testimony against the
likelihood that the testimony would overwhelm or mislead the
jury." Id. (discussing United States v.
Downing, 753 F.2d 1224 (3d Cir. 1985)). The
Moore Court recognized that a trial judge's
exclusion of expert eyewitness testimony was not harmful
where "there was evidence indicating guilt apart from
the eyewitness identification." Id. (citing
United States v. Smith, 736 F.2d 1103, 1108
(6th Cir. 1984)). The Moore court wrote:
[I]n the present case we do not find that the district court
abused its discretion in refusing to admit this evidence. We
have earlier held and we now affirm that the decision whether
to admit this testimony is squarely within the discretion of
the trial judge and properly so. . . . Although admission of
expert eyewitness testimony is proper, there is no federal
authority for the proposition that such testimony
must be admitted. The district judge has wide
discretion in determining the admissibility of this evidence,
and we hold that the district judge did not abuse his
discretion in this case.
In some cases casual eyewitness testimony may make the entire
difference between a finding of guilt or innocence. In such a
case expert eyewitness identification testimony may be
critical. But this is not at all the situation in the case
before us. Even if the eyewitness identifications of Lamberth
and Holder are completely disregarded, the other evidence of
guilt is overwhelming. . . .
We emphasize that in a case in which the sole testimony is
casual eyewitness identification, expert testimony regarding
the accuracy of that identification is admissible and
properly may be encouraged. In the present case, we find no
abuse of discretion in not admitting such evidence. This was
not a case where casual eyewitness identifications were at
Moore, 786 F.2d at 1312-13 (internal citations
Like the eyewitnesses in Moore, Collins's
identification was far from the only evidence of guilt in the
instant case, and it cannot be labeled "critical."
No fewer than seven other witnesses placed Flowers near
Angelica Garment Factory, where Simpson's gun was stolen,
and near Tardy Furniture on the morning of the murders.
Collins's testimony was no different. He identified
Flowers as a man he saw outside Tardy Furniture. Out of all
of the witnesses, Collins was the only witness placing
Flowers near the scene who did not know Flowers. The other
witnesses provided even more credible testimony as they
recognized Flowers by sight, having known him previously. If
the case hinged on Collins's identification of Flowers,
expert testimony on eyewitness identification may have been
helpful to the jury. However, as in Moore, that was
not the situation.
The trial judge made a rational and reasoned decision
regarding the admissibility of Dr. Neuschatz's testimony
based on the totality of the facts before him. We afford
"the widest possible discretion" to a trial
judge's determination on the admissibility of expert
testimony, and "that decision will only be disturbed
when there has been a clear abuse of discretion."
Smith v. State, 925 So.2d 825, 834 (¶ 23)
(Miss. 2006) (quoting Logan v. State, 773 So.2d 338,
346-47 (¶ 31) (Miss. 2000)). The trial judge's
ruling on Dr. Neuschatz's testimony was not an abuse of
discretion. The issue is without merit.
Whether the trial court erred in not excluding
evidence of a single particle of gunshot
residue found on Flowers's hand.
Investigator Jack Matthews interviewed Flowers on the day of
the murders and asked him to submit to a gunshot residue
test. Flowers agreed to the test. A single particle of
gunshot residue was found on the back of Flowers's right
hand. Joe Andrews, a forensic scientist who analyzed the
gunshot residue test, testified that three scenarios can
result in the presence of gunshot residue on a person's
hands: (1) the person actually fired a gun; (2) the person
was in close proximity to a discharged gun; or (3) the person
handled an object that had gunshot residue on it. At trial,
Flowers moved to exclude the evidence concerning the gunshot
residue, and the trial court denied the motion. Flowers
contends that the trial court erred in admitting evidence
that a particle of gunshot residue was found on his hand
approximately three hours after the murders were reported.
Flowers claims that the prejudicial effect of the evidence
greatly outweighed the probative value, so it was
inadmissible under Mississippi Rule of Evidence 403.
Rule 403 provides: "Although relevant, evidence may be
excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence." Miss. R. Evid. 403. Applying Rule 403, the
trial judge must conduct a balancing test to determine if the
probative value of the evidence is
"substantially outweighed by the danger of
unfair prejudice[.]" McGowen v. State, 859
So.2d 320, 329 (¶ 29) (Miss. 2003). On appeal, we review
a trial court's decision for abuse of discretion.
Stone v. State, 94 So.3d 1078, 1085 (¶ 20)
(Miss. 2012); Baldwin v. State, 784 So.2d 148, 156
(¶ 27) (Miss. 2001). We do not reweigh the evidence and
conduct a new balancing test. "The question on review is
not whether this Court would have admitted the evidence, but
whether the trial court abused its discretion in doing
so[.]" Stone, 94 So.3d at 1085 (¶ 20).
See also Baldwin, 784 So.2d at 156 (¶ 27) (on
appeal we "must simply determine whether the trial court
abused its discretion in weighing the factors and admitting
or excluding the evidence").
Flowers cites Foster v. State, 508 So.2d 1111 (Miss.
1987), in support of his argument. In Foster, the
prosecution presented testimony that paint chips found on the
victim's clothing were similar to paint chips found in
the defendant's car. Id. at 1117. A chemist
testified that the paint chips were "indistinguishable
in color, texture, and inorganic chemical composition; and
that they therefore could have had a common origin."
Id. The State also presented evidence that the
victim's stab wound was caused by a knife found in the
defendant's car or one similar to it. Id. The
Court characterized the testimony in Foster as
"could have" testimony, which easily could mislead
a jury, and held that the testimony was too speculative to be
admissible. Id. at 1118. Thus, the Court held that
the probative value of the testimony was substantially
outweighed by the danger of misleading the jury. Id.
We have distinguished Foster in other cases when the
risks associated with "could have" testimony did
not outweigh the probative value. In McGowen v.
State, the Court held testimony that a victim's
physical condition likely was caused by sexual assault did
not result in unfair prejudice or jury confusion.
McGowen, 859 So.2d at 334 (¶ 46).
McGowen was distinguishable from Foster
because the testimony in McGowen "did not
employ or rely on phrases such as 'could have' or
'possible.' Rather, [the witness] merely testified as
to the condition of [the victim's] body."
Id. at 331 (¶ 36).
In the instant case, Andrews testified that the presence of
gunshot residue could result from three scenarios, and
Andrews's testimony was clear that the residue did not
unequivocally prove that Flowers had fired a gun:
Q: Now, you are not telling the jury, are you, that finding a
single particle of gunshot residue says that any individual
actually pulled the trigger on a firearm, are you?
A: No, ma'am. The conclusions you can draw from finding
and identifying the gunshot residue on the hands of the
person are one of three conclusions: That person has
discharged a weapon. That person has been in close proximity
to a discharged weapon or that person has handled an object
that has gunshot residue on it. Those are the three
conclusions you can draw from a positive gunshot residue
Q: The fact that you found that single particle does not
bring this jury or us one step closer to knowing [by] which
one of these three means that gunshot residue particle got on
Mr. Flowers's hand; is that correct?
A: Yes, ma'am, that's correct.
testimony is distinguishable from the testimony contemplated
in Foster. Andrews set out three events that could
result in a person having gunshot residue on his hands. He
clearly explained that the gunshot residue did not
unequivocally show that Flowers had fired a gun. Because
Andrews's testimony was clearly explained, there is
little risk that the jury was confused or misled by the
testimony. As such, the testimony was admissible under Rule
403, and the trial judge did not abuse his discretion in
admitting it. The issue is without merit.
Whether the evidence presented at trial was insufficient to
support a finding of guilt beyond a reasonable doubt, as
mandated by the Fifth and Fourteenth Amendments to the United
States Constitution and Section Fourteen of the Mississippi
Flowers claims that the evidence produced at trial was
insufficient to support the verdict. He attacks the
sufficiency of the evidence from multiple angles: (1) lack of
motive; (2) lack of evidence that Flowers knew Simpson kept a
gun in his car; (3) lack of evidence that one person, acting
alone, committed the murders; (4) lack of the eyewitness
credibility; and (5) lack of probative value of physical
evidence. Flowers contends that the instant case is one of
circumstantial evidence rather than direct evidence;
therefore, he argues that the State was required to meet a
higher burden of proof.
At the end of the State's rebuttal, Flowers moved for
judgment notwithstanding the verdict (JNOV). The trial court
denied the motion. "A motion for JNOV challenges the
legal sufficiency of the evidence." Taylor v.
State, 110 So.3d 776, 782 (¶ 19) (Miss. 2013)
(citing Knight v. State, 72 So.3d 1056, 1063 (¶
24) (Miss. 2011)). We apply the following standard when
reviewing the sufficiency of the evidence:
When ruling on a motion for JNOV, the trial court must view
all credible evidence consistent with the defendant's
guilt in the light most favorable to the State. The Court
will not disturb the trial court's ruling if the evidence
shows beyond a reasonable doubt that [the] accused committed
the act charged, and that he did so under such circumstances
that every element of the offense existed; and where the
evidence fails to meet this test it is insufficient to
support a conviction, and reversal is required. Thus, the
Court must determine whether, after viewing the evidence in
the light most favorable to the State, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.
Taylor, 110 So.3d at 782 (¶ 19) (internal
citations and quotations omitted). Flowers was charged with
four counts of capital murder with the underlying felony of
armed robbery. Thus, the State was required to prove that
Flowers killed each of the victims "without the
authority of law by any means or any manner . . . [w]hen done
with or without any design to effect death, [while] engaged
in the commission of the crime of . . . robbery . . . ."
Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2014).
Burden of Proof
Because Flowers claims that the burden of proof - and,
consequently, the sufficiency of the evidence analysis -
depends on whether the evidence is direct or circumstantial,
we address burden of proof first. Flowers claims that the
case is based on circumstantial evidence, not direct
evidence. Therefore, he claims that the State must meet the
following burden of proof:
It is fundamental that convictions of crime cannot be
sustained on proof which amounts to no more than a
possibility or even when it amounts to a probability, but it
must rise to the height which will exclude every reasonable
doubt; that when in any essential respect the State relies on
circumstantial evidence, it must be such as to exclude every
other reasonable hypothesis than that the contention of the
State is true, and that throughout the burden of proof is on
Westbrook v. State, 32 So.2d 251, 252 (Miss. 1947).
Flowers's case, however, is not a case of circumstantial
evidence. If an eyewitness is produced or a statement from
the defendant is admitted, the case is not circumstantial.
Rubenstein v. State, 941 So.2d 735, 785 (¶ 225)
(Miss. 2006); Ladner v. State, 584 So.2d 743, 750
(Miss. 1991). Further, a defendant's "admission of
culpability . . . to a third party who is not a law
enforcement officer constitutes direct evidence of a
crime." Minor v. State, 831 So.2d 1116, 1119
(¶ 9) (Miss. 2002) (citing Ladner, 584 So.2d at
750). In Ladner, the Court held that a case is not
based only on circumstantial evidence even if the only direct
evidence is a "jailhouse confession."
Ladner, 584 So.2d at 750. See also Foster,
508 So.2d at 1115 (Court held that, without the jailhouse
confession, the prosecution's case would have been
entirely circumstantial), overruled on other grounds by
Powell v. State, 806 So.2d 1069 (Miss. 2001).
Odell Hallmon, a jailhouse informant, testified that Flowers
had told him that he had committed the murders. According to
Ladner, a jailhouse informant's testimony is
considered direct evidence, and when a jailhouse
informant's testimony is present, the case is not
circumstantial. See Moore v. State, 787 So.2d 1282,
1288 (¶ 18) (Miss. 2001) (discussing Ladner,
584 So.2d at 750). Following the Court's holdings in
Ladner and Moore, the trial judge found
that Hallmon's testimony provided direct evidence of the
crimes. We hold that the trial judge did not err in applying
the Court's precedent. Under Ladner, the case
sub judice is not one of circumstantial evidence,
and the Westbrook standard suggested by Flowers does
Sufficiency of the Evidence
Flowers claims that the evidence presented at trial was
insufficient to support a finding of guilt beyond a
reasonable doubt. Flowers asserts that the State failed to
prove motive; that there was a lack of evidence that Flowers
knew Simpson kept a gun in his car; that the evidence does
not support the State's theory that the murders were
committed by a single gunman; that the eyewitnesses were not
credible; and that the physical evidence lacked probative
value. First, although Flowers vehemently argues on appeal
his theory that the number of victims and the placement of
the gunshot wounds demonstrate that the murders were
"almost certainly not a one-man crime, "
that theory was not presented at trial. Therefore, Flowers
cannot raise it on appeal. Lyons v. State, 766 So.2d
38, 40 (¶ 7) (Miss. Ct. App. 2000) ("Failure to
raise this defense waives the right of the appellant to raise
Regarding motive, Flowers claims that the State failed to
prove that he was so aggrieved about being firing from Tardy
Furniture that the firing resulted in his murdering four
people. To support his contention, Flowers cites his
statement given to the police shortly after the murders.
Flowers told investigators that he had worked at Tardy
Furniture for about three days at the beginning of July 1996.
On his last day, Flowers improperly loaded large tractor
batteries, and they fell off the truck and were damaged.
Bertha Tardy told Flowers that the cost of the damaged
batteries would be deducted from his paycheck. Flowers failed
to return to work after the incident. After not reporting to
work for several days, Flowers called Bertha Tardy and asked
if he still had a job. Bertha Tardy told Flowers that he no
longer had a job and that the majority of his paycheck was
"covered up with [the] batteries." Flowers never
stated that he was angry with Bertha Tardy for losing his
Flowers is correct that the State did not provide direct
evidence of any anger toward the Tardy Furniture employees,
but the State did provide evidence that Flowers had lost his
job at Tardy Furniture and had his paycheck reduced as a
result of the damaged batteries. A reasonable juror could
conclude from that evidence - and it is in the jury's
province to draw such inferences if reasonable - that Flowers
had a motive to rob Tardy Furniture and kill four employees.
See Howell v. State, 860 So.2d 704, 739 (¶ 125)
(Miss. 2003) ("It is within the jury's province to
draw reasonable inferences from facts based on experience and
common sense.") (citing Lewis v. State, 573
So.2d 719, 723 (Miss. 1990)). The State's evidence
supported the contention that Flowers had a motive.
Next, Flowers contends that the State's theory hinged on
proving that Flowers knew he would find a gun in
Simpson's car the morning of the murders, and he claims
the State failed to prove that. He cites Simpson's
testimony that Flowers did not know Simpson's gun was in
his car on the morning of the murders:
Q. Your testimony was you did not recall agreeing and saying
there was no way that Curtis Flowers would have known that
gun was in the car that particular morning.
A. No. He, he didn't know it.
Q. He did not know it.
A. He did not know it.
Simpson stated at that point in his testimony that Flowers
did not know the gun was in his car on the morning of the
murders, Simpson had first testified that Flowers had seen
the gun in Simpson's car previously. In a followup
question regarding whether Flowers knew the gun was in his
car that morning, Simpson confirmed that Flowers had seen the
gun in his car before.
Q. So you had known [Flowers] pretty much forever.
A. Yes, sir. Yes, sir.
Q. Did he know that you had this pistol?
A. Yes, he did.
Q. Had he seen it in your car before?
A. Yes, sir.
Q. You were asked . . . whether or not there was any way he
knew the gun was in there that morning and your answer was
that it wasn't; is that right?
A. That's right.
Q. But you were also asked how [Flowers] knew you kept a gun
in your car, I believe. How did [Flowers] know you had had a
gun in your car? Had he seen it in there before?
A. Yes, sir, he had.
Because Flowers previously had seen Simpson's gun in his
car, the evidence supports the contention that Flowers knew
he would find the gun in Simpson's car the morning of the
murders. The jury, as "the ultimate finder of fact,
" is responsible for considering the evidence and
weighing the credibility of witnesses, and the Court will not
reweigh the evidence on appeal. Conley v. State, 790
So.2d 773, 807 (¶ 13) (Miss. 2001) ("We do not have
the task of re-weighing the facts in each case and going
behind the verdict of the jury to detect whether the
testimony and evidence they chose to believe was or was not
the most credible."). Whether the jury believed that
Flowers knew Simpson kept a gun in his car was one piece of
evidence for the jury to consider.
Flowers also attacks the credibility of the witnesses who
placed him walking between his home, Angelica Garment
Factory, and Tardy Furniture the morning of the murder. He
asserts that the $30, 000 reward for information lured the
witnesses to testify. Several witnesses testified that they
were aware a reward was being offered for
information. Some witnesses were not asked about the
reward. Two of Flowers's fact witnesses, Latarsha
Blissett and Kittery Jones, testified that investigators had
implied that they would receive the reward if they provided
statements implicating Flowers. The reward was never given.
The jury heard testimony related to the reward, and
Flowers's counsel argued during closing argument that
investigators allegedly had tried to entice witness
statements by offering the reward. The issue was within the
jury's province of determining credibility. See
Taylor, 110 So.3d at 784 (¶ 29).
Flowers also claims that testimony from people who saw him on
the morning of the murders is not credible because the
witnesses' testimony contains "irreconcilable
differences." One difference Flowers cites is the
witnesses' descriptions of his clothing. One witness
testified that Flowers was wearing black windsuit pants;
another said Flowers had on brown pants; and another thought
Flowers wore white shorts. Flowers also points out that the
times at which the witnesses claimed to have seen him at
various locations in Winona overlap. For example, James
Kennedy testified that he saw Flowers in front of his home at
7:15 a.m., but Katherine Snow said that she saw Flowers at
Angelica at 7:15. Inconsistency in witness testimony is an
issue of credibility for the jury. "It is within the
jury's province to determine the weight and credibility
to give to the evidence, resolving all conflicts in the
evidence." Taylor, 110 So.3d at 784 (¶
Finally, Flowers claims that the physical evidence linking
him to the murders lacks probative value. First, he argues
that the bloody shoeprint found at the scene does not connect
him to the crime, because another person could have come into
the store after the murders and stepped on the bloody floor.
His assertion lacks merit. The shoeprint was from a size
ten-and-a-half Fila Grant Hill tennis shoe. Flowers wore a
size ten-and-a-half shoe. A shoebox for size ten-and-a-half
Fila Grant Hill tennis shoes was found in Flowers's
girlfriend's home. Witnesses testified that they had seen
Flowers wearing Fila Grant Hill shoes. Second, Flowers
contends that the gunshot residue particle found on his hand
has no probative value, claiming that it could have come from
another source. As discussed above, Joe Andrews, a forensic
scientist, testified that the gunshot residue found on
Flowers's hand could prove one of three things: (1) he
had discharged a weapon; (2) he had been in close proximity
to a discharged weapon; or (3) he had handled an object that
had gunshot residue on it. Although the gunshot residue could
have come from another source (for example, coming in contact
with an item at the police station), one alternative was that
Flowers actually fired a weapon. Thus, the evidence does have
some probative value.
The State responds to Flowers's claim that the evidence
was insufficient by citing the following evidence linking
Flowers to the murders: Flowers was fired from Tardy
Furniture and was told he would not receive pay for his days
worked. Flowers was seen standing next to Simpson's car -
where the gun used in the murders was located - on the
morning of the murders. Numerous witnesses saw Flowers
walking to and from Tardy Furniture on the morning of the
murders. The shoeprint found at the crime scene matched
Flowers's shoe size and matched a pair of shoes he had
been seen wearing. Flowers tested positive for gunshot
residue. The only paperwork that had been disturbed at Tardy
Furniture was Flowers's paycheck and timecard. Cash was
found hidden in Flowers's headboard after the murders.
Hallmon testified that Flowers had confessed to committing
the murders. When the evidence is viewed as a whole and in
the light most favorable to the State, we conclude that any
rational trier of fact could have found that the State had
proved the essential elements of capital murder beyond a
reasonable doubt. Accordingly, the issue is without merit.
Whether Flowers's right to a fair trial, as guaranteed by
Mississippi law and the Fourteenth Amendment to the United
States Constitution, was violated by the prosecution
referencing facts not in evidence during the culpability
phase closing argument.
Flowers claims that the prosecution improperly argued facts
not in evidence during its culpability phase closing
argument. During closing arguments, attorneys may
"fairly sum up the evidence, " comment on facts in
evidence, and "draw whatever deductions and
inferences" seem proper from the facts. Rogers v.
State, 796 So.2d 1022, 1027 (¶15) (Miss. 2001);
Bell v. State, 725 So.2d 836, 851 (¶ 40) (Miss.
1998) (citations omitted). We apply the following standard of
review to attorney misconduct during opening statements and
closing arguments: "whether the natural and probable
effect of the improper argument is to create unjust prejudice
against the accused so as to result in a decision influenced
by the prejudice so created." Sheppard v.
State, 777 So.2d 659, 661 (¶ 7) (Miss. 2001)
(citing Ormond v. State, 599 So.2d 951, 961 (Miss.
"Where prosecutorial misconduct endangers the fairness
of a trial and the impartial administration of justice,
reversal must follow." Goodin v. State, 787
So.2d 639, 645 (¶ 18) (Miss. 2001) (citing Acevedo
v. State, 467 So.2d 220, 226 (Miss. 1985)). However, we
have held that, even if a prosecutor's statements during
closing arguments are inconsistent with the facts, reversal
is not warranted if the statements do not rise to the level
necessary to endanger the impartial administration of justice
and the fairness of the trial. Pitchford v. State,
45 So.3d 216, 233 (¶ 62) (Miss. 2010) (quoting
Goodin, 787 So.2d at 645 (¶ 18)). In
Pitchford, the prosecutor said that the defendant
"went to the sheriff's department the same morning
of the murder and he admitted it." Pitchford,
45 So.3d at 233 (¶ 62). The testimony, however, was that
the defendant "talked to" an investigator.
Id. Despite the inconsistency, the Court held that
the statement did not result in an unfair trial. Id.
Flowers claims that, during closing argument, the prosecution
misstated facts about: (1) the time Sam Jones discovered the
victims at Tardy Furniture; (2) Flowers's motive; (3)
Porky Collins's response to the photo arrays; and (4) the
location of the victims at the crime scene. The State
correctly asserts that Flowers did not object
contemporaneously to the statements during closing argument.
Generally, even in death penalty cases, "the failure to
object to the prosecution's statements in closing
argument constitutes a procedural bar." Ross I,
954 So.2d at 1001 (¶ 71) (citing Spicer v.
State, 921 So.2d 292, 309 (Miss. 2006); Williams v.
State, 684 So.2d 1179, 1203 (Miss. 1996)). However, in
some cases, we have considered the merits of the argument
even where the defendant failed to object contemporaneously.
See Ross I, 954 So.2d at 1002 (¶ 71) (citing
In Flowers II, we recognized plain error for
misstatements by the prosecution in closing arguments.
Flowers II, 842 So.2d at 550-56 (¶¶
52-74). Therefore, because we found plain error on a similar
issue in Flowers II, we proceed under a plain error
analysis for the purpose of a thorough analysis. Foster
v. State, 639 So.2d 1263, 1289 (Miss. 1994)
("defendant who fails to make a contemporaneous
objection must rely on plain error to raise the assignment on
appeal") (citing Gray v. State, 487 So.2d 1304,
1312 (Miss. 1986)). To reverse under the plain error
doctrine, an error must have occurred and that error must
have "resulted in a manifest miscarriage of
justice" or "seriously affect[ed] the fairness,
integrity[, ] or public reputation of judicial
proceedings." Conners v. State, 92 So.3d 676,
682 (¶ 15) (Miss. 2012) (quoting Brown v.
State, 995 So.2d 698, 703 (¶ 21) (Miss. 2008)).
Sam Jones's Arrival at Tardy Furniture
Flowers claims that, during closing argument, the State
misrepresented Sam Jones's testimony regarding the
timeline of events on the morning of the murders. Jones died
prior to Flowers's 2010 trial, so his testimony from the
2007 trial was read into evidence. Jones initially testified
that he arrived at Tardy Furniture between 9:15 and 9:30 a.m.
When the State questioned Jones about the timeline, the
State's attorney misstated Jones's arrival time as
being closer to 10:00 a.m. The State's attorney asked,
". . . when you got to the store, that was going to be
closer on up to 10 o'clock, wasn't it?"
Flowers's counsel objected to leading, but the judge
overruled the objection. However, Jones never responded to
the question. During closing argument, the State discussed
the timeline and the attorney said: "Mr. Sam Jones came
into the store slightly after 10:00 on the morning of the
16th and discovered the bodies." Flowers claims the
statement was prejudicial because it skewed the timeline in
the State's favor. Both Porky Collins and Clemmie
Flemming testified that they had seen Flowers near Tardy
Furniture around 10:00 a.m. Flowers claims that, if
Jones's testimony that he arrived at the store between
9:15 and 9:30 had been described accurately, it would have
raised a question in the jurors' minds about what Flowers
was doing near the murder scene thirty to forty-five minutes
after the murders could have occurred.
The State responds that, although Jones did not testify to
arriving at the store at 10:00 a.m., other evidence presented
at trial supported that position. For example, the 911 call
reporting the murders was placed at 10:20 a.m., and Jones
testified that he was in Tardy Furniture for ten to fifteen
minutes before going to a nearby business to call for help.
So, working backward, the conclusion could be drawn that
Jones arrived at Tardy Furniture closer to 10:00 a.m., rather
than 9:15 or 9:30. Further, the State claims that any
misstatement relating to the time Jones arrived was harmless
error, and the error was cured with the following comments by
defense counsel in its closing statement:
[Sam Jones] came in and you know, his testimony, I looked it
up as they were saying that. His original testimony was he
might have gotten there, started his voyage to go in to - as
early as 9:00. He, he thought maybe he got there closer to
9:30. But we know from the police that the call came in at
10:20. And if you will remember, Mr. Jones also told you he
thought it might have been 15 minutes before he recovered
himself enough to go and actually make the report. So there
is a bunch of time in there.
Jones did not testify that he arrived at Tardy Furniture at
10:00 a.m. However, a reasonable inference could be drawn
from the other evidence, including the 911 call, that Jones
may have arrived closer to 10:00. Defense counsel's
summary of the timeline in closing and the reasonable
inference that could be drawn from the evidence as a whole
preclude a finding of plain error on the issue.
Next, Flowers claims that the following statement by the
prosecutor about Flowers's alleged motive was not based
on facts in evidence:
The investigators learned pretty quickly when they asked who
in the world could have had some reason, some motive, some
anything to attack four people like this.
Have you had anybody that's had beef with the store? Just
one. Well, that doesn't mean he did this though, does it?
No. But you check that out. You look at him. And in the
course of deciding what, if anything, Curtis Flowers had to
do with this crime.
brief, Flowers claims that no evidence was presented to
support the State's theory that Flowers was angry about
being fired. To the contrary, the State identified several
facts that supported the contention that Flowers "had
beef" with Tardy Furniture: Flowers lost his job days
before the murders. Bertha Tardy deducted the cost of damaged
inventory from Flowers's paycheck. Police Chief John
Johnson testified that the Tardy family considered Flowers a
threat and that "they were concerned about their safety
dealing with him." Investigator Jack Matthews testified
Flowers was the only employee who had been fired from Tardy
Furniture in the last few years and was the only person with
whom they had had any problems. Doyle Simpson testified that
he had heard that Flowers had "problems" with Tardy
Furniture. A reasonable inference could be drawn from the
evidence that Flowers had ill will toward Tardy Furniture. We
cannot say that the State's comment during closing rose
to the level of plain error.
Porky Collins's Response to the Photo Lineups
In his third assignment of error, regarding alleged
misstatements by the prosecution, Flowers claims that the
prosecutor misrepresented Porky Collins's response to the
photo lineup that included Doyle Simpson's photograph.
The misrepresentation was prejudicial to Flowers's
defense, he claims, because his defense was based partially
on the theory that Simpson committed the murders. Collins
testified that he did not remember if he had identified
Simpson as one of the men he had seen arguing outside Tardy
Furniture. Notes taken by an investigator during the photo
arrays provided that Collins had said that two of the
individuals resembled one of the men but that the
"hairline was further back." Investigator Wayne
Miller testified that Collins had pointed to Simpson during
the photo array and said he looked like the person, but he
could not be positive. Collins was shown a second array of
photos, and he definitively identified Flowers.
During closing argument, the State's attorney said the
following about Collins's identification: "He said
the guy ain't there. They took another six photographs
and said look at this second set. He said that's him
right there. . . . You know, see if he is in there. No, he is
not. Is he in the second group? Yeah. That's him right
there." The State correctly reiterated that Collins had
identified Flowers in the second photo array as one of the
men he had seen arguing outside Tardy Furniture. While the
State's statement that Collins had said "the guy
ain't there" was not an accurate representation of
Collins's response to the first photo array, the reality
is that Collins did not identify Simpson. He said he could
not be sure. He pointed to Simpson's photograph in the
first array and said he "looked like" the man he
saw but he was "unable to be positive." However,
when Collins saw Flowers in the second array, he was
positive. The prosecutor's statement was slightly
inconsistent with the facts, but we cannot say that the
comment rose to the level of plain error.
Location of the Victims at the Crime Scene
Flowers contends that the prosecutor incorrectly described
the location of the victims at the crime scene. The
prosecutor stated during closing argument that Sam Jones had
discovered "all four victims basically laying in a pile,
in a group right at the front counter in Tardy Furniture
Store." The evidence presented at trial, however, showed
that three of the victims were lying a few feet apart from
one another, while the fourth victim was a considerable
distance away. Flowers argues that the prosecutor's
statement was prejudicial because it aided in undercutting
the theory that the murders were committed by more than one
person. Essentially, Flowers claims that the idea of four
victims "piled together" aligns with a one-person
crime, whereas victims spread across a larger area paints the
picture of a two-man crime. The State admits that the
"lying in a pile" statement was incorrect, but the
State points out that three of the four victims were lying
close to one another. The State asserts that the statement
did not prejudice Flowers. As previously mentioned, Flowers
did not present the "two-man crime" theory to the
jury. And Flowers does not claim that the prosecutor's
statement prejudiced him in any other way. Applying the plain
error doctrine, the statement may have been an error, but we
cannot say that it resulted in a manifest miscarriage of
justice or resulted in an unfair trial. See Conners,
92 So.3d at 682 (¶ 15).
We recognize that, in Flowers II, the
prosecution's misstatement of facts during closing
argument was one basis for reversal. Flowers II, 842
So.2d at 556 (¶ 74). In that appeal, Flowers cited
approximately fourteen alleged misstatements. Id. at
555 (¶ 68). Taken together, the cumulative effect of the
misstatements, along with several other errors, warranted
reversal. Id. at 556, 564 (¶¶ 74, 104). In
today's case, Flowers cites four statements made during
closing argument that he claims were not supported by the
evidence. The prosecutor's comments regarding Jones's
arrival time, Flowers's having "beef" with the
store, and Collins's identification were supported by the
evidence and/or were proper "deductions and
inferences" drawn from the facts. Rogers, 796
So.2d at 1027 (¶15); Bell, 725 So.2d at 851
(¶ 40). The statement about the bodies being piled up
was a misstatement, but it does not satisfy the standard for
plain error. We reiterate that Flowers failed to object to
the statements during closing, therefore, we apply the plain
error doctrine on appeal. Plain error is not present, as we
have only one misstatement, which did not result in a
manifest miscarriage of justice or adversely affect the
fairness of the proceedings. Conners, 92 So.3d at
682 (¶ 15). The issue is without merit.
Whether the jury selection process violated Flowers's
fundamental constitutional rights protected by the Sixth and
Fourteenth Amendments, and whether the trial court erred in
denying Flowers's Batson claims.
Flowers claims that the State exercised its peremptory
strikes in a racially discriminatory way by striking five
African-American venire members after employing disparate
questioning and citing pretextual reasons for the strikes. As
previously mentioned, the Supreme Court issued an order
granting Flowers's petition for a writ of certiorari and
remanding the case "for further consideration in light
of Foster v. Chatman, 578 U.S.__, 136 S.Ct. 1737,
__L.Ed.2d __(2016)." Flowers, 136 S.Ct. at
An order granting, vacating, and remanding a lower court
decision does not amount to a final determination on the
merits. Kenemore v. Roy, 690 F.3d 639, 641 (5th Cir.
2012). Such an order "does not bind the lower court to
which the case is remanded; that court is free to determine
whether its original decision is still correct in light of
the changed circumstances or whether a different result is
more appropriate." Id. at 642. The Supreme
Court often vacates a judgment and remands a case when it
"believes that the lower court should give further
thought to its decision in light of an opinion of [the
Supreme] Court that (1) came after the decision under review
and (2) changed or clarified the governing legal principles
in a way that could possibly alter the decision of the lower
court." Flowers, 136 S.Ct. at 2157 (Alito, J.,
The Court afforded Flowers and the State an opportunity to
submit supplemental briefs on remand in accordance with the
Supreme Court's order. Rather than point out how the
Court should give further thought to its decision in light of
Foster or explain how Foster changed or
clarified the governing legal principles in a way that
possibly could alter our decision, Flowers essentially
re-urges the arguments he had raised in his most recent
Flowers contends that "[f]rom the beginning, " the
State's lead prosecutor Doug Evans engaged in a
"relentless exclusion of African Americans from the
juries[.]" Flowers's petition for certiorari to the
Supreme Court raised the following question: "Whether a
prosecutor's history of adjudicated purposeful race
discrimination must be considered when assessing the
credibility of his proffered explanations for peremptory
strikes against minority prospective jurors?" Flowers
argues that "the Supreme Court's remand for
reconsideration requires this Court to reevaluate the
evidence of pretext in light of the prosecutor's history
of discrimination and dishonesty."
Flowers points out that, during his second trial, the trial
court disallowed one of Evans's strikes because it had
found it to be racially motivated. Flowers also points out
that the Court said that Flowers's third trial presented
us with as strong a prima facie case of racial
discrimination as we had ever seen in the context of a
Batson challenge. Flowers III, 947 So.2d at
In Flowers III, the Court held that the prosecutor
had violated Batson because the peremptory challenge
exercised against juror Vickie Curry was clearly pretextual
as there was no basis in the record for two of the grounds
proffered by the prosecutor. Id. at 936. Moreover,
the third ground was based on a relationship between Curry
and Flowers that was "tenuous at best."
Id. at 936. The Court also noted the trial
court's erroneous statement that "the State has a
right to exercise a challenge based on some of the answers
from the other jurors as far as their peremptory challenge
goes." Id. The Court also held that the
prosecutor's actions in striking juror Connie Pittman
were "equally specious, as there [was] absolutely no
evidence in the record to support the [the prosecutor's]
proffered reason for striking her." Id. The
Court classified the strikes of three other jurors as
"suspect, as an undertone of disparate treatment
exist[ed] in the State's voir dire of [the other three]
individuals." Id. The Court concluded that,
"[a]fter carefully reviewing the record before this
Court and the applicable law, we find that the State engaged
in racially discriminatory practices during the jury
selection process and that the trial court committed
reversible error in upholding the peremptory strikes
exercised against Vickie Curry and Connie Pittman."
Id. at 939.
As an initial matter, Foster in no way involved a
particular prosecutor's history of adjudicated
Batson violations. Rather, the Supreme Court's
decision in Foster hinged on several apparent
misrepresentations made by the prosecution, evidenced by the
record in conjunction with the prosecution's troubling
jury selection file, which had a shocking focus on race.
Nonetheless, we analyze Foster on our own to look
for other issues that might place our original opinion in
Flowers IV in error.
In Foster, petitioner Timothy Foster claimed that
the prosecution used peremptory challenges to strike all four
black prospective jurors qualified to serve on the jury in
his trial for capital murder, in violation of
Batson. Foster, 136 S.Ct. at 1742. The
trial court denied his claim, and the Georgia Supreme Court
affirmed. Id. Foster renewed his Batson
claim in a state habeas proceeding. Id. While the
habeas proceeding was pending, Foster obtained copies of the
file used by the prosecution during his trial through the
Georgia Open Records Act. Id. at 1743-44.
The prosecution's jury selection file was replete with
documents referencing race, including: (1) copies of the jury
venire list on which the names of each black prospective
juror were highlighted in green, with a legend indicating
that the green highlighting "represents Blacks";
(2) a draft of an affidavit prepared by an investigator at
the request of the prosecutor, comparing black prospective
jurors and concluding, "If it comes down to having to
pick one of the black jurors, [this one] might be okay";
(3) handwritten notes identifying three black prospective
jurors as "B# 1, " "B# 2, " and "B#
3"; (4) a typed list of qualified jurors with
"N" (for "no") appearing next to the
names of all five black prospective jurors; (5) a handwritten
document titled "definite NO's" listing six
names, including the names of all five qualified black
prospective jurors; (6) handwritten document titled
"Church of Christ" with notation that read:
"NO. No Black Church"; and (7) the questionnaires
filled out by several of the prospective black jurors, on
which each juror's response indicating his or her race
had been circled. Id. at 1744.
The state habeas court considered the prosecution's jury
selection file but denied relief. Id. at 1745. The
Georgia Supreme Court likewise denied relief, concluding that
Foster's Batson claim was without merit because
he had failed to demonstrate purposeful discrimination.
Id. at 1745. The Supreme Court granted certiorari.
Id. The Supreme Court reemphasized the familiar
principle that "the Constitution forbids striking even a
single prospective juror for a discriminatory purpose."
Foster, 136 S.Ct. at 1747 (quoting Snyder
v. Louisiana, 552 U.S. 472, 478 (2008)). The Supreme
Court also reaffirmed the well settled, three part process
established in Batson for determining when a strike
First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of race;
second, if that showing has been made, the prosecution must
offer a race-neutral basis for striking the juror in
question; and third, in light of the parties'
submissions, the trial court must determine whether the
defendant has shown purposeful discrimination.
Id. (quoting Snyder, 552 U.S. at 476-477).
The Supreme Court addressed only Batson's third
step because it was undisputed that Foster had demonstrated a
prima facie case and that the prosecutors had
offered race-neutral reasons for their strikes. Id.
at 1747. The third "step turns on factual
determinations, and, 'in the absence of exceptional
circumstances, ' we defer to state court factual findings
unless we conclude that they are clearly erroneous."
Id. (quoting Snyder, 552 U.S. at 477).
Despite uncertainty about the background of particular jury
selection notes obtained by Foster, the Supreme Court refused
to blind itself to their existence. Id. at 1748. The
Supreme Court "made it clear that in considering a
Batson objection, or in reviewing a ruling claimed
to be Batson error, all of the circumstances that
bear upon the issue of racial animosity must be
consulted." Foster, 136 S.Ct. at 1748 (quoting
Snyder, 552 U.S. at 478). "As [the Supreme
Court has] said in a related context, 'determining
whether invidious discriminatory purpose was a motivating
factor demands a sensitive inquiry into such circumstantial
evidence of intent as may be available.'"
Id. (quoting Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U.S. 252, 266
(1977)). "At a minimum, [the Supreme Court was]
comfortable that all documents in the file were authored by
someone in the district attorney's office. Any
uncertainties concerning the documents [were] pertinent only
as potential limits on their probative value."
Foster, 136 S.Ct. at 1748.
Foster focused his Batson claim on the strikes of
two black prospective jurors, Marilyn Garrett and Eddie Hood.
Id. at 1748. The Supreme Court analyzed the
prosecution's justifications for striking Garrett and
The Supreme Court determined that the prosecution's
reasoning for striking Garrett was "not grounded in
fact." Id. at 1748-49. Furthermore, the Supreme
Court also discovered that the prosecution had made
misrepresentations because several of the prosecution's
reasons for why he struck Garrett were contradicted by the
record. Id. at 1749-50. The Supreme Court also
determined that other explanations given by the prosecution,
while not explicitly contradicted by the record, were
"difficult to credit" because the prosecution had
accepted white jurors with the same traits that allegedly
rendered Garrett an unattractive juror. Id. at 1750.
As for the other juror, Hood, the Supreme Court said that the
prosecution's principal reasons for striking him
"shifted over time, suggesting that those reasons may be
pretextual." Moreover, the Supreme Court concluded that
the prosecution's justifications could "only be
regarded as pretextual" because the justifications were
"implausible" and "fantastic."
Id. at 1752-53 (citing Miller-El v.
Cockrell, 537 U.S. 322, 339 (2003) (holding that
credibility can be measured by, among other factors, how
reasonable, or how probable, the State's explanations
are)). As for an alternative primary justification for
striking Hood--his affiliation with the Church of Christ--the
Supreme Court was persuaded by the record demonstrating that
Hood's race was the true motivation for the strike, not
his religious affiliation. Foster, 136 S.Ct. at
1753. The Supreme Court noted the prosecution's multiple
mischaracterizations of the record that other prospective
jurors, who were members of the Church of Christ, had been
struck. Id. at 1753. The Supreme Court also said
that "[t]he prosecution's file fortifies our
conclusion that any reliance on Hood's religion was
pretextual." Id. The Supreme Court also
determined that "[m]any of the State's secondary
justifications similarly come undone when subjected to
The Supreme Court proceeded with its Batson
analysis: "[i]f a prosecutor's proffered reason for
striking a black panelist applies just as well to an
otherwise-similar nonblack [panelist] who is permitted to
serve, that is evidence tending to prove purposeful
discrimination." Foster, 136 S.Ct. at 1754
(quoting Miller-El v. Dretke, 545 U.S. 231, 241
(2005)). "With respect to both Garrett and Hood, such
evidence is compelling." Id. at 1754. Not only
was the evidence "compelling, " there were
"also the shifting explanations, the misrepresentations
of the record, and the persistent focus on race in the
prosecution's file." Id. "Considering
all of the circumstantial evidence that 'bear[s] upon the
issue of racial animosity, ' [the Supreme Court [was]
left with the firm conviction that the strikes of Garrett and
Hood were 'motivated in substantial part by
discriminatory intent.'" Id. (quoting
Snyder, 552 U.S. at 478, 485).
The Supreme Court insisted that the contents of the
prosecution's file plainly belied the State's claim
that it had exercised its strikes in a
"color-blind" manner. Id. In fact, the
Supreme Court described the number of references to race in
the prosecution's file as "arresting."
Id. The Supreme Court held that "the focus on
race in the prosecution's file plainly demonstrat[ed] a
concerted effort to keep black prospective jurors off the
jury." Id. The Supreme Court concluded that the
"prosecutors were motivated in substantial part by race
when they struck Garrett and Hood from the jury[.]"
Id. The Supreme Court reversed the judgment and
remanded the case for further proceedings because "[t]wo
peremptory strikes on the basis of race are two more than the
Constitution allows." Id.
After reviewing Flowers's supplemental briefs, the only
aspect of Flowers VI that Flowers takes issue with
as it relates to Foster is that the Court did not
expressly refer to the prosecutor's past Batson
violations in our analysis of Flowers's Batson
claim. Flowers claims that the Court did not follow the
"totality-of-the-circumstances approach" used in
Foster; rather the Court confined itself to
evaluating each piece of evidence of pretext in isolation,
affording the prosecutor the benefit of the doubt where the
evidence was ambiguous. Flowers argues "although [Doug]
Evans had distinguished himself as an especially willful and
recalcitrant Batson violater, " the Court
"omitted that well-documented history from its
assessment of the credibility of his facially neutral
"[T]he State's privilege to strike individual jurors
through peremptory challenges is subject to the commands of
the Equal Protection Clause." Batson, 476 U.S.
at 89. The Supreme Court in Foster reaffirmed the
well established, three step process for determining when a
strike is discriminatory as set out in Batson.
Foster, 136 S.Ct. at 1747. When a defendant
challenges a peremptory strike under Batson, the
defendant must first "establish a prima facie
case of discrimination in the selection of jury
members." Thorson v. State, 721 So.2d 590, 593
(¶ 2) (Miss. 1998) (citing Berry v. State, 703
So.2d 269, 294 (¶¶ 94-96) (Miss. 1997) (citing
Batson, 476 U.S. at 96-98)). Then, the burden shifts
to the State to demonstrate that the juror was struck for a
nondiscriminatory, or race neutral, reason. Thorson,
721 So.2d at 593 (¶ 2). The defendant then has the
opportunity to rebut the State's reason. Id.
Finally, considering all of the evidence, the trial court
must determine if the State "engaged in purposeful
discrimination" or if the strike was made for a race
neutral reason. Id. In other words, the trial court
must determine whether the race neutral reasons given by the
State were credible or merely a pretext for discrimination.
The Court has identified five indicia of pretext that should
be considered when analyzing the race neutral reasons for a
(1)disparate treatment, that is, the presence of unchallenged
jurors of the opposite race who share the characteristic
given as the basis for the challenge;
(2)the failure to voir dire as to the challenged
characteristic cited; (3) the characteristic cited is
unrelated to the facts of the case; (4) lack of record
support for the stated reason; and (5) group-based traits.
Manning v. State, 765 So.2d 516, 519 (¶ 9)
(Miss. 2000) (quoting Mack v. State, 650 So.
1289, 1298 (Miss. 1994)).
Foster did not alter the great deference given to
trial judges. The third step of Batson "turns
on factual determinations, and, 'in the absence of
exceptional circumstances, ' we defer to state court
factual findings unless we conclude that they are clearly
erroneous." Foster, 136 S.Ct. at 1747 (quoting
Snyder, 552 U.S. at 477). We give great deference to
the trial court's determinations under Batson
and will reverse only if the trial court's decision is
clearly erroneous or against the overwhelming weight of the
evidence. Berry v. State, 802 So.2d 1033, 1037
(¶ 9) (Miss. 2001); Thorson, 721 So.2d at 593
(¶ 4). "The trial court has a pivotal role in
evaluating Batson claims. " Snyder v.
Louisiana, 552 U.S. 472, 477 (2008). We have expounded
on the standard of review afforded to trial judges regarding
Batson findings as follows:
When a Batson issue arises, the trial judge acts as
the finder of fact. Berry v. State, 703 So.2d 269,
295 (Miss. 1997). . . . The race neutral explanations must be
viewed in the light most favorable to the trial court's
findings. Id. Trust is placed in a trial judge to
determine whether a discriminatory motive drives the reasons
given for striking a potential juror. See Webster v.
State, 754 So.2d 1232, 1236 (Miss. 2000). The
determination of discriminatory intent will likely turn on a
trial judge's evaluation of a presenter's credibility
and whether an explanation should be believed.
Batson, 476 U.S. at 98[.] Thus, trial courts are
given great deference in their findings of fact surrounding a
Batson challenge. Lockett v. State, 517
So.2d 1346, 1350 (Miss. 1987). . . .
Walker v. State, 815 So.2d 1209, 1215 (¶ 12)
"Step three of the Batson inquiry involves an
evaluation of the prosecutor's credibility."
Snyder v. Louisiana, 552 U.S. 472, 477 (2008).
"[T]he best evidence of discriminatory intent often will
be the demeanor of the attorney who exercises the
challenge[.]" Id. Moreover, race neutral
reasons for peremptory challenges often invoke a juror's
demeanor, making the trial court's firsthand observations
of even greater importance. Id. The trial court must
evaluate not only whether the prosecutor's demeanor
belies a discriminatory intent, but also whether the
juror's demeanor credibly can be said to have exhibited
the basis for the strike attributed to the juror.
Id. The trial court's "determinations of
credibility and demeanor lie peculiarly within a trial
judge's province[.]" Id. (citations and
"[I]n considering a Batson objection, or in
reviewing a ruling claimed to be Batson error, all
of the circumstances that bear upon the issue of racial
animosity must be consulted." Foster, 136 S.Ct.
at 1748 (citing Snyder, 552 U.S. at 478). On the
same note, "determining whether invidious discriminatory
purpose was a motivating factor demands a sensitive inquiry
into such circumstantial evidence of intent as may be
available." Foster, 136 S.Ct. 1737, 1748
(citing Arlington Heights, 429 U.S. at 266).
The Montgomery County clerk summoned a special venire of 600
potential jurors for Flowers's sixth trial. The initial
venire consisted of forty-two percent African Americans and
fifty-five percent whites. After for-cause challenges, the venire
consisted of twenty-eight percent African Americans and
seventy-two percent whites. During jury selection, the State
accepted the first African-American juror, then exercised six
peremptory strikes, five of which were against
African-American venire members. At the point when five
African Americans were struck by the State, the trial court
found that a prima facie case of discrimination
existed. The State then provided race neutral reasons for the
five strikes, and Flowers's counsel offered rebuttals for
the State's reasons. Ultimately, the trial court found
that the State's reasons were credible.
Essentially, Flowers is asking the Court to reevaluate the
credibility of Evans's race neutral explanations for
striking African Americans in the sixth trial. However, as we
explained in Flowers VI, "the determination of
discriminatory intent will likely turn on a trial judge's
evaluation of a presenter's credibility and whether an
explanation should be believed." Flowers VI,
158 So.3d at 1047 (citing Batson, 476 U.S. at 98).
Here, the trial court was asked on several occasions to
consider historical evidence of Batson violations
committed by Evans in previous trials of the case.
Flowers's counsel even asked the trial court to preclude
Evans from making peremptory strikes entirely based on his
history of Batson violations in the case.
Specifically, Flowers's counsel urged:
And I would renew the motion with respect to -- and I, I
would now re-urge this, when I've not previously urged.
We had in the last trial urged that should this jury -- that
the prosecutor be, be precluded from making peremptory
strikes because so much of this -- because there is the
history that has been found by the Mississippi Supreme Court
of racial discrimination in jury selection with respect to
this case by this prosecution. It's happened actually --
the predecessor in Flowers II, in Harrison County,
found a Batson violation and ruled a strike by the
State. So that in two proceedings and on the basis of what
has been a persistent pattern of simply, you know, asking
things that are clearly, if not flatly race or at least
trial court responded to Flowers's counsel's request:
And as far as the motion to prohibit the State from using
peremptory challenges, there is no basis for that. Absolutely
none. If the State looks at potential jurors and feels that
they have right reasons for using peremptory challenges, that
is their right. That is each sides [sic] gets to make
peremptory challenges. But because Flowers III was
reversed on Batson is certainly no grounds for
saying that they should now be denied the right to use
peremptory. The Supreme Court of this State has certainly
never said that on a retrial you could not use peremptory
challenges, nor has the United States Supreme Court ever said
that. And so you're pulling that motion totally out of
thin air and without any basis in law or in fact for making
it. So it's denied.
Flowers's counsel continued to argue the history of
Batson violations in support of the Batson
claim at trial:
And we think it is, therefore, pretextual specific and
particularly in light under -- of the history of race
discrimination in jury selection in this district and in this
particular case found by the Mississippi Supreme Court in
State v. Flowers after the third trial, the first
one in this district.
the trial court was presented with and rejected Flowers's
present argument that he had advanced at trial. Flowers
argued to the trial court:
And I think that that is in Flowers III, what the
Supreme Court of Mississippi said was that when you are
looking at Batson, you look at the totality of the
circumstances and you go beyond little excuses. And that the
danger, certainly, in Flowers III is to devolve --
for the Batson challenging process, to devolve into
an effort of uncovering and coming up with facially neutral
reasons that are merely a mask for actually racially
discriminatory reasons, the desire to bleach or -- I suppose,
if it were the other way around darken or make male or make
female, the jury and that the Court, considering the totality
of the circumstances, cannot simply express this distinction.
This is based on the 14th Amendment Equal Protection Clause.
And there is a huge body of equal protection civil
litigation. It is referred to by the United States Supreme
Court in Snyder, the most recent case in which a
verdict was reversed on Batson in the United States
Supreme Court. And basically, the situation is that you may
go behind the facial neutrality if anything in the record
suggests that one or more of the reasons may be either
unconnected and related to what is really a material issue in
this case and/or appears to have been pursued with more vigor
in an attempt to uncover some excuse that is of less than
Flowers's counsel ensured that the trial court consider
the totality of the circumstances, including historical
evidence of racial discrimination by the district attorney.
Again, we would cite the totality of the circumstances and
the apparent cherry picking of the African-American jurors
for scrutiny and attention. And in light of the history of
racial discrimination by this district attorney's office
in this district, we would say the totality of the
circumstances makes this a pretext for discrimination and
attempt to look for race-neutral reasons for racially
motivated peremptory striking.
The trial court not only considered Flowers's
counsel's argument in its consideration of the totality
of the circumstances; the Flowers Court also
considered other circumstances showing that Evans did not
have discriminatory intent. The trial court certainly
considered circumstances surrounding the previous trials as
evidenced by its response to Flowers's Batson
But you know full well from past experiences in this county
because of the number of people that know Mr. Flowers, they
know his parents, they know his brother, they know his
sisters, and he I mean he has got a large number of siblings.
And all of those people you know, I mean he is so well-known
here that, you know, you've got a number of
African-Americans that say I know him. I can't be fair. I
know these people. I can't sit in judgment of their son.
And there is there is no way to avoid that if this case is
tried in this county. Because this is the same type things
that, that occurred in the previous trials where he had so
many people that knew him. You know, I don't -- I
hadn't kept a running count of anything in here but, you
know, there is nothing that has -- that has -- no
discrimination that's occurred that has caused this, what
you call, statistical abnormality now. It is strictly because
of the prominence of his family.
The prior adjudications of the violation of Batson
do not undermine Evans's race neutral reasons as the
despicable jury selection file in Foster had
undermined the prosecution's race neutral explanations.
We cannot say that the exceptional circumstances discussed in
Foster are present in today's case so as to
prevent the Court from deferring to the trial court's
factual determinations. Moreover, we cannot conclude that the
trial court's factual findings were clearly erroneous.
Flowers's post-remand briefs spend far more time
re-urging the arguments from his original appellate brief
than addressing Foster itself. Accordingly, Flowers
appears to rely on Miller-El v. Dretke, 545 U.S. 231
(2005) (Miller-El II) instead. In Miller-El
II, the Supreme Court held "the appearance of
discrimination [was] confirmed by widely known evidence of
the general policy of the Dallas County District
Attorney's Office to exclude black venire members from
juries at the time Miller-El's jury was selected."
Id. at 253. The Supreme Court said, "[w]e
kn[e]w that for decades leading up to the time this case was
tried prosecutors in the Dallas County office had followed a
specific policy of systematically excluding blacks from
juries[.]" Id. at 263. The evidence of a
specific policy of past discrimination in Miller-El
II significantly differs from the evidence before the
Court. The Court does not find Evans's past two
adjudicated Batson violations overcome the deference
owed to the trial judge's factual findings on which the
Court's affirmance relies. The Court does not have
evidence before it of a similar policy of the district
attorney's office or of a specific prosecutor that was so
evident in Miller-El II. Miller-El II, 545 U.S. at
266 ("If anything more is needed for an undeniable
explanation of what was going on, history supplies it. The
prosecutors took their cues from a 20-year-old manual of tips
on jury selection, as shown by their notes of the race of
each potential juror.").
We turn to address Flowers's arguments raised on appeal.
Flowers claims that the State exercised its peremptory
strikes in a racially discriminatory way by: (1) disparately
questioning African-American jurors as compared to white
jurors; (2) responding differently to African-American
jurors' voir dire answers as compared to answers of white
venire members; and (3) mischaracterizing the voir dire
responses of African-American jurors. We do not ignore the
historical evidence of racial discrimination in the previous
trials in our consideration of Flowers's arguments.
However, the historical evidence of past discrimination
presented to the trial court does not alter our analysis, as
set out in Flowers VI.
Flowers claims that the questioning of African-American and
white jurors was so "starkly different" that the
questioning led to purposeful discrimination. First, Flowers
asserts that the State asked potential African-American
jurors more questions during individual voir dire than
potential white jurors. Flowers claims that all African
Americans who were struck by the State were asked more than
ten questions. That statement is not supported by the record.
For example, the State asked Carolyn Wright, an African
American against whom the State exercised a peremptory
strike, only three questions. However, overall, the State did
ask more questions of African-American jurors than of
potential white jurors. The State responds that more
questions were asked only when a potential juror's
answers to voir dire questions were unclear or needed further
elaboration. Disparate questioning is evidence of purposeful
discrimination. Miller-el v. Cockrell, 537 U.S. 322,
344 (2003); Manning, 765 So.2d at 520 (¶ 15).
However, evidence of disparate questioning alone is not
dispositive of racial discrimination. Hughes v.
State, 90 So.3d 613, 626 (¶ 37) (Miss. 2012);
Manning, 765 So.2d at 520 (¶ 15);
Berry, 802 So.2d at 1039 (¶ 20).
Second, Flowers claims that the State did not question white
venire members about their relationships with defense
witnesses even though African-American jurors were
extensively questioned about similar relationships. To
support his argument, Flowers claims that, during voir dire
examination by the trial court, four white venire members -
Larry Blaylock, Harold Waller, Marcus Fielder, and Bobby
Lester - stated that they knew defense witnesses. The record
reveals that the potential jurors knew members of law
enforcement, the Tardy family, and the victims; but they did
not know members of the Flowers family. Of the white jurors
who survived for-cause challenges, five knew members of
Flowers's family. Four of them knew only one member of
Flowers's family; the State did not follow up with them.
Pamela Chesteen knew Flowers's father, mother, sisters,
and a cousin. The State did not question Chesteen about the
relationships during voir dire; however, the trial court
asked Chesteen whether the relationships would affect her
ability to serve as a juror, and she said they would not.
Several African-American venire members were questioned about
their relationships with Flowers's family, as will be
discussed in detail in the following section. However, the
State did not question all potential African-American jurors
about their relationships with persons involved in the case.
For example, Alexander Robinson, an African American who was
selected to be a juror, stated that he knew Flowers's
brother, but the State did not question Robinson about that
The State's assertion that elaboration and followup
questions were needed with more of the African-American
jurors is supported by the record. Most of the followup
questions pertained to the potential juror's knowledge of
the case, whether they could impose the death penalty, and
whether certain relationships would influence their decision
or prevent them from being fair and impartial. The jurors who
had heard little about the case, who said they would not be
influenced by what they had heard, and who said they would
not be influenced by relationships were asked the fewest
questions. The jurors who knew more about the case, who had
personal relationships with Flowers's family members, who
said they could not be impartial, or who said they could not
impose the death penalty were asked more questions. Those
issues are appropriate for followup questions.
We have held that voir dire "is conducted under the
supervision of the court, and a great deal must, of
necessity, be left to its sound discretion." Howell
v. State, 860 So.2d at 726 (¶ 67) (quoting
Ballenger v. State, 667 So.2d 1242, 1250 (Miss.
1995)). "The trial court has broad discretion in passing
upon the extent and propriety of questions addressed to
prospective jurors." Howell, 860 So.2d at 727
(¶ 70) (quoting Stevens v. State, 806 So.2d
1031, 1062 (¶ 140) (Miss. 2001)). The trial judge
participated in voir dire, asking his own questions when
necessary. Flowers was given ample opportunity to question
jurors, rehabilitate jurors, and make challenges. That he had
these opportunities is evidence of a fair and proper jury
selection process. See Howell, 860 So.2d at 726
(¶ 69); Stevens, 806 So.2d at 1062 (¶
139). There is no evidence of discrimination based on the
number of questions asked alone.
Disparate Treatment of Individual Venire Members
Flowers also contends that the State: (1) responded
differently to African-American jurors' voir dire answers
compared to the answers of white venire members, and (2)
mischaracterized the voir dire responses of African-American
jurors. For the purpose of our analysis, the two issues are
addressed together by discussing the African-American venire
members who were struck from the venire by the State's
use of peremptory strikes. We address the State's race
neutral reasons for striking the jurors, as well as
Flowers's arguments regarding each, which includes his
contentions that the State mischaracterized the voir dire
responses of the jurors and responded differently to them.
The State gave the following reasons for its peremptory
strike of Carolyn Wright: (1) she knew several defense
witnesses; (2) she was sued by Tardy Furniture for an overdue
account; and (3) she had worked with Archie Flowers Sr. at
Walmart. At the Batson hearing, Flowers offered
rebuttals for the State's reasons, but the trial court
held that the State's reasons for striking Wright were
race neutral. The trial court summed up its finding by
If the only reason the State offered was that she knows some
of these defense witnesses, then there might be something
there. But the fact is knowing these defense witnesses that
you're intending to call, plus the fact that Tardy
Furniture had to sue her, plus the fact that she worked with
Archie, in my mind, creates race-neutral reasons for striking
One reason the State gave for striking Wright was that she
knew multiple defense witnesses. In fact, Wright knew a total
of thirty-four people who were involved with Flowers's
case. Flowers argues that striking Wright because she knew
several potential witnesses was pretextual because the State
did not strike white jurors who were acquainted with multiple
people involved in the case. Specifically, Flowers points to
Pamela Chesteen, who knew thirty-one people involved in the
case; Harold Waller, who knew eighteen people involved in the
case; and Bobby Lester, who knew twenty-seven people involved
in the case. We recognize that one of the indicia of pretext
is "the presence of unchallenged jurors of the opposite
race who share the characteristic given as the basis for the
challenge." Manning, 765 So.2d at 519 (¶
9). However, the number of acquaintances was not the sole
reason given by the State, so the basis is not an automatic
showing of pretext. Hughes, 90 So.3d at 626 (¶
37) ("Where multiple reasons lead to a peremptory
strike, the fact that other jurors may have some of the
individual characteristics of the challenged juror does not
demonstrate that the reasons assigned are pretextual.").
The second reason the State gave for striking Wright was that
she had been sued by Tardy Furniture. As a rebuttal to that
reason, Flowers alleged at the Batson hearing that
the State did not question white jurors about their accounts
at Tardy Furniture. However, the court had asked all jurors
during group voir dire if they had accounts at Tardy
Furniture and if they had been sued by the store. The court
found that the basis was race neutral because none of the
white jurors had been sued by Tardy Furniture. On appeal,
Flowers claims that the State mischaracterized Wright's
litigation with Tardy Furniture by claiming that her wages
had been garnished as a result of the litigation. Nothing in
the record supports the contention that Wright's wages
were garnished. However, that does not change the fact that
being sued by Tardy Furniture was a race neutral reason for
striking Wright. Prior litigation is a race neutral reason
for a preemptive strike. See Webster v. State, 754
So.2d 1232, 1236 (¶¶ 9-11) (Miss. 2000) (finding
that potential juror's company being sued by defense
attorney in previous and unrelated litigation was sufficient
race neutral reason for peremptory strike).
The State's third reason for striking Wright was that she
worked with Archie Flowers Sr. at Walmart. At the
Batson hearing, Flowers rebutted that reason by
comparing Wright's working relationship with Archie to
Chesteen, a teller at a local bank where members of the
Flowers family were customers. The trial court found this to
be a race neutral reason and found that Wright's working
relationship with Archie was distinguishable from the
professional relationship Chesteen had with the Flowers
family. Chesteen worked at a local bank in Winona and stated
that she knew Archie Flowers Sr., Lola Flowers, and
Flowers's sisters from her work at the bank. We agree
with the trial judge that a coworker relationship and bank
employee/customer relationship are distinguishable. Further,
the trial court stated that the Winona Walmart was the
"smallest Wal-Mart . . . in existence" that he knew
of, implying that Wright and Archie certainly had known each
other. The trial court also stated that no white jurors had
reported working at Walmart with Archie. Being acquainted
with the defendant's family is a race neutral reason for
striking a juror. Manning v. State, 735 So.2d 323,
340 (¶ 32) (Miss. 1999) ("We have condoned a
peremptory challenge against a juror who was acquainted with
the defendant's family.") (citing Porter v.
State, 616 So.2d 899, 907 (Miss. 1993)).
Flowers's claim that the State provided "no
convincing reasons" for striking Wright is simply
unfounded. Wright had worked with Flowers's father, she
knew thirty-two of the potential witnesses, and she had been
sued by Tardy Furniture. We also note that, on her juror
questionnaire, Wright wrote that she previously had served as
a juror in a criminal case involving the "Tardy
Furniture trial." The State had multiple, credible, race
neutral reasons for striking Wright, and the trial judge did
not err in denying Flowers's Batson challenge as
to the juror.
The State cited the following reasons for its exercise of a
peremptory strike of Dianne Copper: (1) she had worked with
Flowers's father and sister; (2) she knew several members
of the Flowers family; (3) she said she "leaned
toward" Flowers's side of the case due to her
relationships with the Flowers family; and (4) she knew
several defense witnesses. Flowers offered rebuttal to the
State's reasons by again asserting that the State had not
challenged white jurors connected to people involved in the
case. He also claimed that the State did not attempt to
rehabilitate Copper after she said leaned toward Flowers. The
trial court found the State's reasons to be race neutral,
concluding that Copper's relationships were
distinguishable from those of the white jurors who were not
challenged and recognizing that other jurors had not said
they favored Flowers as Copper did.
During voir dire, Copper was questioned about her
relationships with members of the Flowers family, and she
revealed the following: Copper once lived in the same
neighborhood as the Flowers family. She had worked with
Flowers's sister, Cora, at Shoe World for "a year or
two." She also had worked with Flowers's father for
"one or two years." Copper testified that she knew
Flowers's mother, Lola, and his brother, Archie Jr. She
also knew more than twenty other potential witnesses.
Altogether, Copper knew at least thirty people involved in
the case. The State asked Copper about her comment that
knowing so many people connected to the case would make her
lean toward Flowers:
Q. And I think it was yesterday and my notes show that you
said that the fact that you know all of these people could
affect you and you think it could make you lean toward him
because of your connection to all of these people. Is that
A. It - it's possible.
Q. Okay. That would be something that would be entering into
your mind if you were on the jury, wouldn't it?
A. Yes, sir.
Q. And it would make it to where you couldn't come in
here and, just with an open mind, decide the case, would it?
point, Flowers's counsel attempted to rehabilitate
Q. . . . What I'm trying to find out is just as you could
put aside all the information you heard before about this
case, could you not also put aside the fact - if you got
picked as a juror, put aside the fact that you have met Mr.
Flowers, that you know some other people in these cases and
be fair to the Tardys, the Stewarts, the Goldens, and Rigbys,
and make whatever decision or vote that you're going to
make based on the evidence and the evidence only. Could you
A. I feel like I could. But, you know, it -
Q. Is what you're saying -
A. Of course, it would make me, you know, feel uncomfortable.
But if I had to do it, you know, I got to do what I got to
Q. Okay. So you're saying that - thank you. You're
saying that you'll be uncomfortable. You'd prefer not
to - I get the impression you're saying that you'd
rather not be a juror. But if you got picked to be one, you
would take the responsibility seriously, and you would follow
the law and the rules that the Court give[s] you, and you
would put aside anything that you are required to put aside
and make your evidence and make your vote based on just the
evidence you hear in the courtroom. Is that fair to say?
A. Yes, sir. That's correct.
Copper knew several members of the Flowers family and she was
uncomfortable serving on the jury. That reason alone is a
sufficient race neutral reason to strike her.
Manning, 735 So.2d at 340 (¶ 32). Further, we
have recognized "living near the defendant" as a
race neutral reason for a peremptory strike. Lockett v.
State, 517 So.2d 1346, 1356 (Miss. 1987) (citing
Taitano v. State, 358 S.E.2d 590 (Va.App. 1987)).
On appeal, Flowers claims that the State mischaracterized
Copper's statement that she "leaned toward"
Flowers due to her relationship with the Flowers family, but
a reading of the record shows that the State correctly
described her voir dire testimony. The State made the
following argument during the Batson hearing:
And the reason I point that out, it's not just that she
knows those witnesses, but that because of knowing the family
and working with those two family members, she stated that
that relationship would influence her. She later said that -
well, she could have an open mind. And then she was equivocal
back and forth. But because of all those relationships, she
clearly stated, when I asked her, that they would influence
her. She could not have an open mind, and she was leaning
toward the Defendant's family.
State's argument accurately reflected Copper's
testimony, including the defense's attempt to
rehabilitate her. Even more, defense counsel asked Copper if
she would "rather not be a juror, " and she agreed.
The Court has recognized that reluctance to serve as a juror
is a race neutral basis for a peremptory strike.
Hughes, 90 So.3d at 626 (¶ 36) (citing
Lynch v. State, 877 So.2d 1254, 1274
(¶ 59) (Miss. 2004)).
Flowers claims that the State's strike of Copper was
pretextual because white jurors who knew several defense
witnesses were not struck. As mentioned above, one indicium
of pretext is "the presence of unchallenged jurors of
the opposite race who share the characteristic given as the
basis for the challenge." Manning, 765 So.2d at
519 (¶ 9). However, like Wright, the number of
acquaintances was not the sole reason given by the State for
striking Copper, so the instant basis is not an automatic
showing of pretext. See Hughes, 90 So.3d at
626 (¶ 37). Again, Flowers claims that the State did not
provide any convincing reasons for striking Copper and,
again, Flowers's claim is unfounded. Copper lived in the
same neighborhood as the Flowers family, knew multiple
members of the family, and had worked with Flowers's
father and sister. She admitted that, in light of the
relationships, she leaned toward Flowers in the case. Copper
also said that she would rather not serve as a juror. All of
the given reasons are race neutral reasons for a peremptory
strike. The trial court did not err in denying Flowers's
Batson challenge as to Copper.
The State gave several reasons for the peremptory strike of
Flancie Jones: (1) she was related to Flowers; (2) she was
late for jury selection twice; (3) she provided inconsistent
statements on her view of the death penalty; and (4) she lied
on her juror questionnaire in an attempt to get out of jury
service. The trial court found that the State had provided
sufficient race neutral reasons for the strike.
In response to the State's first basis - that Jones is
related to Flowers - Flowers claims that the State
mischaracterized and exaggerated Jones's relationship
with Flowers. The State described the relationship between
the two as follows: "She is related to the defendant.
She admitted that she was related - she was a cousin - or the
defendant's sister, Angela Jones, is her niece. So she
said she guessed she must be related to him. Well, I guess
so. He would be her nephew." During voir dire, Jones
said that Flowers was her "sister-in-law's
sister's son." She also said that Flowers's
sister was her niece. Jones's statements regarding her
relationship to Flowers were confusing, but the trial court
seemed to understand and concluded that Jones had more than
one familial connection to Flowers. The trial court stated:
She said that Angela Ward Jones was married to Mark Jones,
and she said that was her nephew. She's not directly
related to Mr. Flowers. She's related by marriage to Mr.
Flowers's sister. And then Hazel Jones is her
husband's brother's wife and, you know, that's
another family connection there.
one may not typically describe the child of an in-law's
sibling as a niece or nephew, Jones's own statement that
Flowers's sister was her niece supported the State's
position that Flowers was Jones's nephew. Flowers's
contention that the State mischaracterized and exaggerated
the relationship is without merit. And, again, being
acquainted with the defendant's family is a race neutral
reason for striking a juror. Manning, 735 So.2d at
340 (¶ 32).
The other reasons the State provided for its strike also are
race neutral. Jones was late for jury selection on two days.
For one of the days, Jones's excuse was that she had
difficulty waking up early in the morning because she used to
work nights. On the other day, Jones said she was late
because she was looking for her jury questionnaire. Jones
also provided inconsistent statements on her view of the
death penalty, and she admitted that she wrote on her
questionnaire that she was against the death penalty in an
effort to get out of jury service:
Q: . . . And I think on your questionnaire, you said you were
strongly against the death penalty.
A: I guess I'd say anything to get off.
Q: Okay. Well, are you saying that you didn't tell the
A: No, that's not that. It's just that if I
didn't have to be here, I wouldn't want to be here.
Q: Well, I want to know when you put down you were strongly
against the death penalty -
A: I was trying to not be - I - really and truly, I don't
want to be here. I'll say it like that.
Q: When you put down that you strongly didn't believe in
the death penalty, were you being truthful?
A: No . . . .
late on two days, lying on her questionnaire, and blatantly
saying that she did not want to be there and that she would
"say anything to get off" reflect an overall
attitude of contempt toward jury service.
Jones's late arrival and her attitude toward jury
service, evidencing a lack of concern about or commitment to
the proceedings, are two race neutral reasons for a
peremptory strike. See Lynch, 877 So.2d at 1274
(¶ 59) (reluctance to serve was a race neutral basis for
a peremptory strike); Brewer v. State, 725 So.2d
106, 122 (Miss. 1998) (fact that the juror "had
attempted to get off jury duty from the start" was a
race neutral reason); Lockett, 517 So.2d at 1351-52
(striking of jurors based on attitude toward jury service is
race neutral). In Lockett v. State, the Court
provided a nonexhaustive list of race neutral reasons that
had been recognized by other courts. The Court cited a
Seventh Circuit case in which the court upheld the peremptory
strike of a juror who arrived late and was inattentive, which
indicated "a lack of commitment to the importance of the
proceedings." Lockett, 517 So.2d at 1356
(citing U.S. v. Mathews, 803 F.2d 325, 331 (7th Cir.
1986)). See also Hicks v. State, 973 So.2d 211, 220
(¶ 28) (Miss. 2007) (inattentiveness is a race neutral
reason). Unquestionably, Jones's attitude toward jury
service was a proper race neutral reason for striking her.
The State did not misrepresent Jones's relationship with
Flowers, and the State provided several race neutral reasons
for striking her. Flowers's claims regarding Jones are
without merit. The trial court did not err in denying
Flowers's Batson challenge regarding the juror.
The State's reasons for striking Tashia Cunningham
included: (1) her working relationship with Flowers's
sister, and (2) her wavering statements about the death
penalty. At the Batson hearing, Flowers attempted to
rebut by pointing to Cunningham's testimony that she
could be a neutral juror and could set aside her relationship
with Flowers's sister. Flowers compared Cunningham to
Chesteen, who knew Flowers's family from the bank.
Finally, Flowers claimed that Cunningham's alleged
wavering views on the death penalty were similar to the views
of white jurors. The trial court held that the State's
reasons were race neutral, concluding: "Ms.
Cunningham's all-over-the-map response to the death
penalty, plus her situation about working so closely with Mr.
Flowers's sister, in my mind, the State has shown
race-neutral reasons for that strike."
During voir dire, Cunningham said she did not have a close
relationship with Flowers's sister, Sherita Baskin. She
said they had a "working relationship." Cunningham
said she and Baskin had worked the same shift for two or
three years, but they did not see each other every day at
work. Cunningham said she worked at the end of the assembly
line, and Baskin worked at the front of the line. The State
asked Cunningham further questions about that relationship:
Q: And you work with the Defendant's sister, Sherita
Q: Now, the other day, I think you said that you do not work
close to her?
A: No, I do not.
Q: Would you think about that for a minute?
A: I do not.
Q: Are you sure that you do not work side by side with her?
A: No, I do not.
Q: And you're saying that under oath?
A: Yes, sir.
State then called Cunningham's employer, ADP, to confirm
her testimony relating to her working relationship with
Baskin. An ADP quality control clerk, Crystal Carpenter,
testified that Cunningham and Baskin worked on the same
assembly line with twenty-five to thirty-five people.
Carpenter testified that Cunningham and Baskin worked
side-by-side, "nine or ten inches" apart from one
another. Carpenter testified that she saw the women working
every day and that her testimony was based on her personal
observations. Flowers's counsel asked Carpenter if there
was documentation supporting the location of Cunningham and
Baskin on the assembly line, and Carpenter said she could
provide documentation supporting her testimony. Apparently,
Carpenter did not provide the documentation. Thus, Flowers
claims that the instant basis for the State's peremptory
strike is unfounded. Flowers's claim is without merit.
We hold that the blatantly conflicting testimony of
Cunningham and Carpenter was a race neutral basis for the
State's challenge, as concern about a juror's honesty
constitutes a race neutral reason. See Collins v.
State, 691 So.2d 918, 927 (Miss. 1997) (a juror will be
disqualified for withholding substantial information or
misrepresenting material facts); Mack, 650 So.2d at
1300 (State's challenge upheld where the juror failed to
reveal that her husband had pending charges against him);
Foster, 639 So.2d at 1280 (as to one juror, the
State said "his demeanor was such that I did not feel
that he was being perfectly honest with us" and the
Court held that the State had provided race neutral reasons).
See also Aguilar v. State, 847 So.2d 871, 877
(¶ 14) (Miss. Ct. App. 2002) (concern that juror was
being dishonest was a valid reason).
The State cited Cunningham's wavering views on the death
penalty as a second basis for its peremptory strike. On her
juror questionnaire, Cunningham marked that she had "no
opinion" on the death penalty but, on the very next
question, she marked that she would not consider the death
penalty under any circumstances. During voir dire by the
trial court, Cunningham first said she "would not"
consider the death penalty and that she "did not believe
in the death penalty." She confirmed for the court three
times that she would not consider the death penalty. However,
as questioning continued, Cunningham wavered, saying she
"might" be able to consider it. During voir dire by
the State, Cunningham went back to her initial position that
she did not think she could consider the death penalty. Then,
when questioned by defense counsel, Cunningham said that she
could consider both life in prison and the death penalty. We
have held that "having doubts as to one's ability to
follow the law and vote for the death penalty when
appropriate is a sufficient race-neutral reason."
Manning, 735 So.2d at 340 (¶ 31) (citing
Johnson v. State, 529 So.2d 577, 584-85 (Miss.
1988)). Further, providing inconsistent statements is a race
neutral basis for striking a juror. Hicks, 973 So.2d
at 220 (¶ 27); Lynch, 877 So.2d at 1272 (¶
51) (verbal responses and juror's card were
During the Batson hearing, Flowers's counsel
attempted to compare Cunningham to Jeffery Whitfield, a white
juror who had "mixed feelings about the death
penalty." Unlike Cunningham, Whitfield never said that
he would be unable to impose the death penalty. We have
recognized that a juror's views on the death penalty may
provide a race neutral basis for a peremptory challenge.
See Batiste, 121 So.3d at 848; Pitchford,
45 So.2d at 229 (¶40); Flowers III, 947 So.2d
at 920-21. In Flowers III, the Court held that
striking an African American who had "virtually
indistinguishable" views on the death penalty as white
jurors who were not struck raised an inference of
discrimination, although, standing alone, it did not warrant
finding a Batson violation. Flowers III,
947 So.2d at 921. In the instant case, no white jurors
survived for-cause challenges who had views on the death
penalty comparable to Cunningham's views. Thus, this
basis was not pretextual. Cunningham's seeming dishonesty
about her relationship with Baskin, her doubt about whether
she could impose the death penalty, and her inconsistent
statements about the death penalty are all race neutral
reasons for a peremptory strike. The trial court did not err
in denying the Batson challenge as to Cunningham.
The State gave the following reasons for striking Edith
Burnside: (1) she knew Flowers and members of his family; (2)
she was sued by Tardy Furniture; and (3) she had provided
inconsistent statements regarding her views on the death
penalty. As discussed above, during group voir dire, the
trial court asked the entire venire if anyone had been sued
by Tardy Furniture. Thus, again, Flowers's claim that
only African-American venire members were asked about prior
litigation is incorrect. Burnside responded in the
affirmative, telling the court that she had been sued by
Tardy Furniture. She later explained that she had paid the
amount she owed and that the litigation had arisen from a
misunderstanding about her account after the murders.
At the Batson hearing, the State incorrectly stated
that a garnishment had been issued against Burnside. The
prosecutor said: "She also was sued by Tardy Furniture,
and a garnishment was issued against her. She tried to deny
that and said that she just settled with them when she came
back but she was, in fact, sued by them." In response to
the trial court's question about being sued by the store,
Burnside had said: "I had an account there, but I was
not sued by Ms. Bertha. It was later on when it was took over
by Mr. Frank and Roxanne." During individual voir dire,
Burnside confirmed that she was sued by Bertha Tardy's
son-in-law, but that she had paid him and they "never
had a falling out about it." She said the lawsuit would
not cause her any difficulty in Flowers's case. Like the
State's characterization of Wright's litigation with
Tardy Furniture, the statement that Burnside's wages had
been garnished and that Burnside had denied it was not
supported by the record. However, prior litigation is a race
neutral basis for a peremptory strike. Webster, 754
So.2d at 1236 (¶¶ 9-11).
Another reason the State gave for striking Burnside was her
relationships with Flowers and his family. Burnside said that
she had once lived near the Flowers family, and Flowers and
his sister used to visit her home. Flowers was a friend of
Burnside's sons and played football with them. Burnside
said that the relationships would not affect her ability to
serve as a juror. No white venire members had relationships
remotely comparable to the relationships Burnside had with
Flowers and his family. A juror's relationships with the
defendant's family is a race neutral reason for a
peremptory challenge. Manning, 735 So.2d at 340
(¶ 32). And, again, "living near the
defendant" is a race neutral reason for a peremptory
strike. Lockett, 517 So.2d at 1356. If simply living
near the defendant is a valid reason, then certainly the
defendant having visited the juror's home and having been
a friend to her children is a valid, race neutral reason.
Although Burnside said her connections to the Flowers family
would not affect her jury service, the basis is not
Finally, the State cited Burnside's statements regarding
whether she could judge another person and whether she could
impose the death penalty as bases for its peremptory strike.
During voir dire, Burnside testified as follows:
Q: . . . And so I want to know if the facts justified it and
the law allowed it, could you consider the death penalty as a
A: That I don't think I could do. I don't know if I
could do that. . . . I don't - I don't know if I
could consider it, sending anybody to death. I don't know
if I could do that.
Q: And can you explain further your views on that?
A: I've just never been put in that predicament. I've
always just don't know if I could do that. It's just
the best way I can explain it. I just don't think I could
Q: Again, let me explain. You're not committing to do it
or not to do it. You're just - we just need to know if
that's something that would be in your mind where you
could think about it ...