OF JUDGMENT: 09/29/2017
COUNTY CIRCUIT COURT HON. CHARLES E. WEBSTER JUDGE.
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KATY TAYLOR GERBER
DISTRICT ATTORNEY: BRENDA FAY MITCHELL
WESTBROOKS, J., FOR THE COURT
Cortez Watts was charged with conspiracy to commit armed
robbery, attempted armed robbery, armed robbery, aggravated
assault, and possession of a firearm by a convicted felon in
the Circuit Court of Tunica County. Following trial, the jury
returned verdicts of guilt for conspiracy to commit armed
robbery, attempted armed robbery, aggravated assault, and
possession of a firearm by a convicted felon. Watts, however,
was acquitted of armed robbery and was sentenced to five
years for conspiracy to commit armed robbery, twenty-five
years for attempted armed robbery, fifteen years for
aggravated assault, and ten years for possession of a firearm
by a convicted felon. The trial court also sentenced Watts to
serve two additional ten-year sentences for firearm
enhancements on the aggravated assault and attempted robbery
charges. Watts filed for a motion for a judgment
notwithstanding the verdict (JNOV), or in the alternative,
for a new trial, which the trial court denied. Watts appeals.
After our review of the record, we find reversible error in
the trial court's denial of Watts's peremptory strike
without a proper Batson analysis. Accordingly, we
reverse and remand for a new trial.
AND PROCEDURAL HISTORY
Derek Phillips and Barry McCray went to the Horseshoe Casino
in Tunica, Mississippi in October 2016. Phillips and McCray
testified that they noticed a man and woman seated behind
them at the casino. Phillips stated that the man asked him
for a cigarette and he obliged. Later, Phillips noticed that
the man was gone, but the woman was still seated. This woman
was later identified as Tanyatta Kinnel. Kinnel slipped
Phillips her phone number before leaving the casino.
Surveillance video from the Horseshoe Casino corroborated
Phillips and McCray's story. Phillips sent a text message
to Kinnel when he left the casino because he wanted her to
have his phone number. Kinnel then asked Phillips to bring
her a soda since she lost her money at the casino.
When Phillips and McCray arrived at Kinnel's apartment,
Kinnel asked Phillips to get out of the car and give her a
hug. Phillips testified that as he exited the car, a man,
later identified as Javonte Watts, complimented his car.
Shortly after this exchange, Phillips saw McCray running from
the car. McCray later testified that a man, later identified
as Javonte Watts, took his cell phone and keys, but he was
able to call the police with another phone McCray had in his
possession. Cortez Watts appeared and demanded that Phillips
give him the money he had just won from the casino. After
Phillips refused, Watts pulled a gun. Phillips says that he
was able to run and hide from Watts, but the two were later
involved in a physical altercation which resulted in Phillips
being shot in the neck.
Phillips and McCray were taken to the hospital and treated
for their injuries. Phillips was shown photo lineups and
identified Cortez Watts as the man who shot him. He also
identified Kinnel as the woman who gave him her phone number
at the casino. Subsequently, Watts was arrested and charged
with conspiracy to commit armed robbery, attempted armed
robbery of Phillips, armed robbery of McCray, aggravated
assault against Phillips, and possession of a firearm by a
convicted felon. Following a jury trial, Watts was acquitted
of armed robbery; however, the jury convicted Watts on the
Watts filed a JNOV motion, or in the alternative, for a new
trial, which the trial court denied. Watts timely appeals.
Whether the trial court erroneously denied
Watts's peremptory strike.
Watts asserts that the trial court erroneously denied his
constitutional right to a jury of his peers when it sustained
the State's objection to his peremptory strike. Watts
maintains that the trial court did not complete a full
Batson analysis and that the facts in this case are
analogous to the facts in Hardison v. State, 94
So.3d 1092 (Miss. 2012). In Hardison, the Supreme
Court found that "[a] trial judge committed clear and
reversible error by denying Hardison's right to a
peremptory strike," and the case was remanded for a new
trial. Id. at 1102 (¶37). "During voir
dire [in that case], [a] juror had expressed regret that the
jury was unable to reach a verdict" after previously
serving on a jury in a criminal case. Id. at 1095
(¶1). Hardison's trial counsel struck the juror
based on his response, and "the State raised a
Batson challenge." Id. at (¶2).
"The trial judge required Hardison's counsel to
provide a race-neutral reason for the strike."
Id. After reiterating the juror's statement as
the reason for exercising the strike, the trial court found
that Hardison's reason was not a valid race-neutral
reason and denied the peremptory strike.
During jury selection in this case, Watts struck three white
potential jurors. The State made a Batson challenge
alleging discrimination on the basis of race. The Mississippi
Supreme Court analyzes a Batson challenge using a
First, the party objecting to the peremptory strike of a
potential juror must make a prima facie showing that race was
the criterion for the strike. Second, upon such a showing,
the burden shifts to the State to articulate a race-neutral
reason for excluding that particular juror. Finally, after a
race-neutral explanation has been offered by the prosecution,
the trial court must determine whether the objecting party
has met its burden to prove that there has been purposeful
discrimination in the exercise of the peremptory strike,
i.e., that the reason given was a pretext for discrimination.
Hardison, 94 So.3d at 1098 (¶17).
Prima Facie Showing
"To establish a prima facie case, the opponent of a
peremptory strike must establish that (1) the opponent is a
member of a cognizable class, such as a racial group; (2) the
proponent has used peremptory strikes to remove venire
members in that class; and (3) the facts and circumstances
give rise to an inference that the proponent used peremptory
strikes to purposefully remove individuals of that
class." Id. at 1098 (¶18). However, the
United States Supreme Court essentially found that
"[t]he critical inquiry, then, is whether 'the
opponent has met the burden of showing that the proponent has
engaged in a pattern or practice of strikes based on race or
gender.'" Id. (quoting Powers v.
Ohio, 499 U.S. 400, 416 (1991)).
The following exchange took place while empaneling the jury:
STATE: Yes sir, I - - We would like to raise a
The Court: On what basis?
The Court: Alrighty. Well, let's look and see. I have - -
out of the jurors that were available, appears I have three
whites, that would 3 - -number 3, John Ruth - - hold on,
thought I had another one. Who - -
State: Yeah, number 9, Zachery, and number - - back - -
number 35, Walton. Number 3, Ruth, was struck by the Defense;
as was number 9; as was 35, Walton. Well since they were the
only three whites available and they each were struck by the
Defense, I will say that it appears that a pattern has been
The record reflects that out of all that had been impaneled,
the defense struck the only three white members available.
Accordingly, we find that the trial court properly found a
prima facie case of racial discrimination. "After a
prima facie case has been made, the party exercising the
challenge has the burden to articulate a race-neutral
explanation for excluding the potential juror."
Allen v. State, 235 So.3d 168, 172 (¶10) (Miss.
Ct. App. 2017).
The court allowed three of Watts's peremptory strikes
against white venire members but found that Watts did not
present a sufficient race-neutral reason for striking Juror
3. "When reviewing a Batson challenge, we will
not overrule a trial judge's decision unless the record
indicates that the ruling was clearly erroneous or against
the overwhelming weight of the evidence."
Hardison, 94 So.3d at 1098 (¶20) (internal
quotation marks omitted). This exchange took place while
empaneling the jury:
Court: All right. Having made that determination, go back now
and tell me your ...