Alexander Womack v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00144-COA
ALEXANDER WOMACK AND MAURICE
WOMACK
APPELLANTS
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/12/2007
HON. ROBERT G. EVANS
SIMPSON COUNTY CIRCUIT COURT
BENJAMIN ALLEN SUBER
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
EDDIE H. BOWEN
CRIMINAL - FELONY
CONVICTED OF ATTEMPTED ARMED
ROBBERY AND SENTENCED TO FIVE
YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED – 08/25/2009
BEFORE MYERS, P.J., IRVING AND ROBERTS, JJ.
IRVING, J., FOR THE COURT:
¶1.
Alexander and Maurice Womack were convicted in the Simpson County Circuit Court
of attempted armed robbery and sentenced to serve five years in the custody of the
Mississippi Department of Corrections. Aggrieved, Alexander and Maurice assert: (1) that
the circuit court erred when it allowed the State to use unverifiable pretextual reasoning for
using all six of its peremptory strikes against African American jurors and (2) that the trial
court erred in denying their motion for a new trial because the verdict was against the
overwhelming weight of the evidence.
¶2.
Finding no reversible error, we affirm the judgment of the circuit court.
FACTS
¶3.
On December 30, 2006, Alexander and Maurice were arrested for attempted armed
robbery of the Exxon Truck Stop located on Highway 49 in D’Lo, Mississippi. They were
indicted on March 5, 2007, and a trial was held on September 20, 2007.
¶4.
During voir dire, the State struck six jurors: Amber Bagley, David Green, William
McGee, Charles Smith, Tiffany Norwood, and Charles Ayers, all of whom are members of
the African American race. The State struck five of the six jurors for being inattentive and
struck the sixth juror because he did not honestly respond to one of the State’s questions.
¶5.
During the State’s case-in-chief, Officer Kenney Kennedy, the town marshal for the
town of D’Lo, testified that in the early morning hours of December 30, 2006, he was driving
his patrol car and making his rounds when he decided to patrol around the Exxon Truck Stop.
Officer Kennedy stated that as he was about to turn into the truck stop, he noticed a vehicle
parked on the side of the building and that this struck him as odd. He further stated that he
noticed a man standing outside of the vehicle and that the man’s face appeared to be covered.
According to Officer Kennedy, he chose to turn into a second entrance of the truck stop, so
that he could go around the building to get a better view of the vehicle without being noticed
by its occupants. Once he got a better view, Officer Kennedy saw that the man standing
outside of the car, later determined to be Alexander, and a man in the driver’s seat, later
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determined to be Maurice, were both wearing red scarves around their faces. Officer
Kennedy stated that Alexander “had something down along his side” and that he began
walking toward the front of the store. Officer Kennedy further stated that Alexander looked
over and saw him, and this caused Alexander to spin around and walk back toward the
vehicle. Officer Kennedy testified that once Alexander made it back to the car, “[Alexander]
knelt down and threw the object under the car and [Officer Kennedy] could hear a metallic
metal sound hitting under the car.” According to Officer Kennedy, Alexander stood up and
began walking briskly toward the front of the store.
¶6.
Officer Kennedy testified that he positioned his patrol car in order to see what
Alexander had thrown under the car. After shining his headlights under the car, he noticed
that “it was a long barrel type shotgun.” Officer Kennedy stated that at that point, Maurice
got out of the car and attempted to walk to the front of the store but that he instructed him to
get down on the ground. Officer Kennedy arrested Maurice and called for back up.
¶7.
Officer Kennedy stated that he remembered the temperature of the morning of the
incident because it was warmer than typical December weather. He remembered wearing
a short-sleeved shirt and a pair of jeans. He testified that Alexander was wearing a dark
overcoat, blue jeans, dark-colored shoes, a ski mask, and a bandana around his face on the
morning of the incident. He further testified that Maurice was wearing a light-colored
sweatshirt, jeans, shoes, and a bandana around his face.
¶8.
Deputies Marvin Miller and Bernard Gunter with the Simpson County Sheriff’s
Department testified that they responded to Officer Kennedy’s call for assistance. Both
deputies corroborated Officer Kennedy’s testimony about what Alexander and Maurice wore
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on the morning of the incident. Each deputy stated that they wore short-sleeved shirts that
morning because of the warm weather.
¶9.
Additional facts, as necessary, will be discussed during the analysis and discussion
of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶10.
As previously mentioned, the State exercised peremptory challenges against six
potential jurors of the African American race. Alexander and Maurice assert that the trial
court erred in allowing the State to exercise its peremptory challenges against these potential
jurors and argue that these challenges were pretextual.
¶11.
In Carter v. State, 799 So. 2d 40, 46 (¶¶21-27) (Miss. 2001), our supreme court
thoroughly discussed peremptory challenges and the necessary procedure for resolving
disputes regarding alleged pretextual challenges:
In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),
the United States Supreme Court held that a peremptory challenge cannot be
used to exclude venire-persons from jury service based on their race. A
peremptory challenge based on race constitutes a violation of due process. Id.,
476 U.S. at 98, 106 S. Ct. at 1723-24.
****
The necessary steps to resolve a peremptory challenge based upon Batson are
cited in Stewart v. State, 662 So. 2d 552, 557-58 (Miss. 1995) as follows:
1. The party objecting to the peremptory challenge must first
make a prima facie showing that race was the criteria for the
exercise of the peremptory challenge.
2. If this initial showing is successful, the party desiring to
exercise the challenge has the burden to offer a race-neutral
explanation for striking the potential juror.
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3. The trial court must then determine whether the objecting
party has met their burden to prove there has been purposeful
discrimination in the exercise of peremptory challenges.
****
In Woodward [v. State], this Court stated the “next step is to determine
whether the prosecution met its burden of showing sufficient race-neutral
explanations for its strikes.” 726 So. 2d [524,] 529-30 [(Miss. 1997)]. “A
peremptory challenge does not have to be supported by the same degree of
justification required for a challenge for cause.” Stewart, 662 So. 2d at 558.
It is not necessary to meet the same standard of examination as a challenge for
cause for a peremptory challenges. [sic]. Id.
[The Mississippi Supreme Court] has held that the trial judge is afforded great
deference in determining if the expressed reasons for exclusion of a
venire-person from the challenged party is [sic] in [fact] race-neutral. Tanner
v. State, 764 So. 2d 385, 393 (Miss. 2000). In Stewart, [the Mississippi
Supreme Court] held that “one of the reasons the trial court is granted such
deference in a Batson issue is because the demeanor of the attorney making
the challenge is often the best evidence on the issue of race neutrality.”
[Stewart,] 662 So. 2d at 559. Furthermore, 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. Hernandez v. New York, 500
U.S. 352, 365, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991). In Stewart,
[the Mississippi Supreme Court] also held that “despite the importance of
demeanor evidence, the trial court must consider all the relevant
circumstances, such as the way prior peremptory strikes have been used and
the nature of the questions poised on voir dire.” [Stewart,] 662 So. 2d at 559
(citing Griffin v. State, 607 So. 2d 1197, 1202 (Miss. 1992)). A reversal will
only occur if the factual findings of the trial judge appear to be “clearly
erroneous or against the overwhelming weight of the evidence.” Tanner, 764
So. 2d at 393 (citing Stewart, 662 So. 2d at 558; Davis v. State, 551 So. 2d
165, 171 (Miss. 1989)).
(Emphasis added).
¶12.
In the case sub judice, the circuit court made a prima facie determination and required
the State to present its race-neutral reasons for challenging the six potential jurors.
Ultimately, the circuit court accepted the race-neutral reasons put forth by the State. As to
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each of the State’s peremptory challenges, the record reflects the discussion and the circuit
court’s findings:
THE COURT:
Amber Bagley.
[PROSECUTOR]: Strike.
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
W e’re gonna ask for Batson on
that, Your Honor, whenever you
get ready.
Okay. Excuse me.
[PROSECUTOR]: Do you want to do the Batson one at a time or just all
when we get through, Judge?
THE COURT:
I can do it now, if you want. Give me her race, gender
and reason, please.
[PROSECUTOR]: The race is black. The gender is female. Even
yesterday, Judge, when I was talking, she was not
attentive. Especially today, she was not attentive. And
I feel that’s the reason I’m striking her.
THE COURT:
[Attorney for Defendants], do you have any evidence or
argument to rebut that?
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
Your Honor, she seemed -- first of
all, I believe that’s pretextual. She
looked very observant to me in
listening in. She was fully aware
and actually shook her head on
what I asked the jury on several
occasions.
[Prosecutor], any response?
[PROSECUTOR]: No, sir. Just from mine [sic] yesterday and today, when
I was either making my opening statement or doing my
voir dire, you know, she was looking off and inattentive,
is what I was saying.
6
THE COURT:
If she was attentive to the defense attorney and not
attentive to the prosecutor, that would be all the more
reason for the [S]tate to strike her. Are any of the jurors
you’ve accepted black females?
[PROSECUTOR]: Yes, Your Honor. Number 8 is a black female.
[ATTORNEY FOR DEFENDANTS]:
No. I’ve got her -- No. 8 is white.
[PROSECUTOR]: Excuse me. I’m sorry, Your Honor.
THE COURT:
Are any of the jurors that you’ve accepted white females
-- I mean black females? Pardon me.
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
Okay. There it is. I’m sorry.
There it is.
Which one?
[PROSECUTOR]: Number 6.
THE COURT:
Number 6 is a --
[PROSECUTOR]: Yes, sir.
THE COURT:
Is that a female? Wilkie?
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
Uh-huh.
Okay. An unusual name for a female. All right. With
that observation, the strike will be allowed.
[PROSECUTOR]: Okay.
THE COURT:
. . . [I]t’s my finding it is a race, gender neutral reason
and therefore it will be allowed. To the State, No. 10,
David Green.
[PROSECUTOR]: Judge, David Green has been a juror before. He has a
son -- I asked this question yesterday; he did not respond
to it. But he was on the jury last year. And I’ve checked
with the sheriff; he has a son that has served time, and I
think possibly that David may have also. He did not
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respond to that question.
striking him.
THE COURT:
Strike him.
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
Your Honor, we again raise Batson.
Because there were several people
that said they --
She can’t hear y’all.
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
So that’s the reason I’m
I’m sorry. There were several on
the jury -- white, black -- where
they had had family members in the
jail -- that had served time in
prison. I’m sorry.
Well, that doesn’t exclude them.
[PROSECUTOR]: This man did not respond to that question, Your Honor.
THE COURT:
What’s his race?
[PROSECUTOR]: He is a black male.
THE COURT:
All right. If he has been convicted of a felony himself or
a family member has, that certainly is a race gender [sic]
neutral reason. Do you have anything to rebut that,
[Attorney for Defendants]?
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
Other than he did not respond,
Your Honor, and that was clearly
asked.
Then that’s the reason to strike him, if you got
knowledge and you didn’t respond.
****
THE COURT:
Number 16, William McGee.
[PROSECUTOR]: Your Honor, both yesterday and today Mr. Magee [sic],
even in my opening statement today, beside being
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inattentive, he has a kind of a scowl look when I’m
talking. It’s -THE COURT:
Show me what he did.
[PROSECUTOR]: Kind of like this. It wasn’t a nod and a smile like some
jurors do to you. And it seemed like when [Attorney for
Defendant] was talking, he showed more attention. He
kind of puts his head to the side and -[ATTORNEY FOR DEFENDANTS]:
THE COURT:
Again, Your Honor, I --
What’s his race?
[PROSECUTOR]: His race is black male.
THE COURT:
Okay. [Attorney for Defendants].
[ATTORNEY FOR DEFENDANTS]:
Your Honor, I spoke with M r.
McGee. Obviously, we went to
high school together. We weren’t
close friends. So he remembered
me when I didn’t remember him.
He seemed very attentive. And I
didn’t notice any scowling on the
part of the State. And that was
exactly the reason I said earlier and
said the more reason not to strike,
Your Honor. That’s more reason to
leave him on. I think that’s just
purely pretextual in trying to strike
him on the grounds of race.
[PROSECUTOR]: And, Your Honor, I think that might have some part as to
why he was paying more attention or looking -- more
attention when [Attorney for Defendants] was speaking.
He went to school with [Attorney for Defendants].
THE COURT:
What African-American males have you accepted?
[ATTORNEY FOR DEFENDANTS]:
None. He’s struck them all.
[PROSECUTOR]: None, so far, Your Honor.
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THE COURT:
I’m going to allow the strike and find that it’s raceneutral. Because Mr. McGee attended school with
defense counsel, that’s a valid reason to strike.
****
THE COURT:
Okay. We are one short. You owe one more,
[Prosecutor]. Charles Smith, 22.
[PROSECUTOR]: Your Honor, I’ve already struck one forklift operator and
-THE COURT:
You sure did.
[PROSECUTOR]: -- I would strike No. 22.
THE COURT:
Okay.
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
Your Honor, we again raise the
Batson challenge again, because
it’s pretextual. Because again, he’s
another black male.
All right, [Prosecutor]. Gender, race[?]
[PROSECUTOR]: Charles Smith is a black male.
THE COURT:
Reason?
[PROSECUTOR]: Well, there’s actually two reasons, Your Honor. First,
I’ve already struck one forklift operator, and also in the
last two days, Mr. Smith has not shown attention while
I asked questions.
THE COURT:
Okay. [Attorney for Defendants].
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
All
right.
I
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Y our H onor, I think he paid
attention. He was fine. He was
honest. We just again think it’s
pretextual.
find
it’s
a
race-neutral reason.
Inattentiveness has been approved by our supreme court.
So I will allow the strike.
[PROSECUTOR]: And also he’s a forklift operator.
THE COURT:
Right, a forklift operator as well. 23 to the State, Tiffany
Norwood.
[PROSECUTOR]: Strike, Your Honor.
THE COURT:
24, Charles Ayers to the State.
[PROSECUTOR]: Strike, Your Honor.
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
Again, raise Batson on both. Both
are black, one female and one male.
All right. Race gender reason for No. 23.
[PROSECUTOR]: Your Honor, No. 23 is a black female. She works with
the department of corrections. And young people that
work with the department of corrections -- I feel [sic] is
the type work whereas they develop a sympathy for it.
So one working with the department of corrections, they
could possibly be involved with them, and that’s the
reason I’m striking her.
THE COURT:
[Attorney for Defendants].
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
Your Honor, I’ve never heard such
a pretextual argument in my life.
She works with the department of
corrections, deals with these guys,
and they lose sympathy for them
because they get tired of hearing
about it.
[Prosecutor].
[PROSECUTOR]: I guess it kind of goes along with engineers, Judge.1 I
1
We note here that earlier during voir dire, the attorney for the defendants struck all
engineers because he “[does] not like engineers on juries.”
11
mean, that -- I’m striking all people that work with the
department of corrections on this panel. Also, as she -yesterday she was sitting there on the front row, right.
She was inattentive yesterday and also today.
THE COURT:
I’m going to allow the strike. I find it’s [a] race-neutral
reason. Number 25 to the State, Randy Nichols. You are
out of challenges.
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
How about Charles Ayers?
Oh, Charles, Ayers. Pardon me. Excuse me.
[PROSECUTOR]: Charles Ayers is a black male. He was employed with
the City of Jackson.
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
Don’t interrupt.
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
He’s striking everybody that works
with the City of Jackson.
I’m sorry, Your Honor.
Don’t do that again.
[PROSECUTOR]: And again the reason is Mr. Ayers, yesterday and today
on this panel, was inattentive to when I was asking
questions and during my opening statement today.
THE COURT:
[Attorney for Defendants].
[ATTORNEY FOR DEFENDANTS]:
THE COURT:
¶13.
Your Honor, I think, again it’s just
pretextual.
I’m going to allow the strike. Again, the supreme court
has shown that inattentiveness is a general reason for a
strike.
It appears from the circuit court’s ruling on each peremptory challenge that it
determined that Alexander and Maurice failed to prove that there was purposeful
discrimination. These determinations fall squarely within the discretion of the circuit court,
12
which will not be reversed except upon a showing of clear error. Tanner, 764 So. 2d at 393
(¶14) (citing Stewart, 662 So. 2d at 558). As mentioned above, “the demeanor of the
attorney making the challenge is often the best evidence on the issue of race neutrality.”
Stewart, 662 So. 2d at 559. Here, the circuit court observed the demeanor of the prosecutor
and concluded that the reasons set forth by the State were not pretextual. After reviewing
the record, we cannot say that this conclusion was clearly erroneous. Therefore, this issue
is without merit.
¶14.
Next, Alexander and Maurice assert that the circuit court erred by denying their
motion for a new trial because the jury’s verdict is against the overwhelming weight of the
evidence. Specifically, they argue that besides the testimony of Officer Kennedy, the State
presented no evidence that they had any intent to rob the truck stop.
¶15.
We follow a well established standard for determining whether a verdict is against the
overwhelming weight of the evidence:
When reviewing a denial of a motion for a new trial based on an objection to
the weight of the evidence, we will only disturb a verdict when it is so contrary
to the overwhelming weight of the evidence that to allow it to stand would
sanction an unconscionable injustice. Herring v. State, 691 So. 2d 948, 957
(Miss. 1997). The evidence should be weighed in the light most favorable to
the verdict. Id.
Nelson v. State, 10 So. 3d 898, 908 (¶41) (Miss. 2009) (quoting Jones v. State, 904 So. 2d
149 (¶14) (Miss. 2005)).
¶16.
Regarding the intent for Alexander and Maurice to rob the truck stop, Officer
Kennedy’s testimony supports the verdict. He testified that he saw Alexander walk half-way
toward the store’s entrance with an object that was later determined to be a shotgun. He
13
further testified that Alexander and Maurice had bandanas over their faces and that the car
was parked in a suspicious area of the truck stop’s property. Accordingly, reasonable jurors
could have found Alexander and Maurice guilty of attempted armed robbery. Allowing the
verdict to stand will not sanction an unconscionable injustice. Therefore, this contention of
error is without merit.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY OF
CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIVE YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SIMPSON
COUNTY.
LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON
AND MAXWELL, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.
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