Jeffrey Shelley v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01284-COA
JEFFREY SHELLEY
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
07/18/2008
HON. FRANK G. VOLLOR
WARREN COUNTY CIRCUIT COURT
ERIN E. PRIDGEN
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA H. TEDDER
RICHARD EARL SMITH JR.
CRIMINAL - FELONY
CONVICTED OF SALE OF COCAINE AND
SENTENCED TO TWENTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH
FIFTEEN YEARS TO SERVE AND FIVE
YEARS OF POST-RELEASE SUPERVISION,
WITH THE SENTENCE TO RUN
CONSECUTIVELY TO THE SENTENCE IN
WARREN COUNTY CAUSE NUMBER 050305CRV
AFFIRMED – 03/02/2010
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
IRVING, J., FOR THE COURT:
¶1.
Jeffrey Shelley was convicted of sale of cocaine by a Warren County jury, and the
Warren County Circuit Court subsequently sentenced Shelley to twenty years in the custody
of the Mississippi Department of Corrections, with fifteen years to serve and five years of
post-release supervision. The circuit court ordered that the sentence be served consecutively
to another sentence that Shelley was already serving. Feeling aggrieved, Shelley appeals and
contends that the circuit court erred in allowing the State to proceed with an allegedly
improper peremptory strike and in failing to object sua sponte to remarks made by the
prosecutors during closing argument.
¶2.
Finding no reversible error, we affirm.
FACTS
¶3.
Shelley was in Vicksburg, Mississippi, on July 27, 2007, when he was approached by
Christian Franklin Johnson, a woman who Shelley knew. The record indicates that Shelley
and Johnson knew each other from their involvement in using and purchasing illegal drugs.
However, unbeknownst to Shelley, on July 27, Johnson was working as a paid informant for
the Vicksburg Police Department (VPD). On that day, Johnson was driving a vehicle that
had been equipped by the VPD with several hidden cameras.
¶4.
Officer Jeff Merritt with the VPD testified that the VPD chose to conduct undercover
drug buys at a particular location in Vicksburg because the VPD “had received numerous
complaints of drug activity in that area.” He testified that Johnson was a successful
informant who was paid fifty dollars a day for her work with the VPD. Officer Merritt
explained that, on July 27, Johnson was searched by VPD officers before driving an
“undercover” VPD vehicle to the location where Johnson encountered Shelley. There is no
evidence indicating that Johnson contacted Shelley prior to driving to the location chosen by
the VPD. Officer Merritt testified that Johnson was given forty dollars in city funds with
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which to purchase drugs. Officer Merritt explained that, on July 27, the VPD was not
targeting any particular individual, but “just that particular area due to the complaints we
received.” Officer Merritt testified that Johnson had no access to the cameras that were in
the vehicle. During cross-examination, Officer Merritt acknowledged that Johnson was “a
self-admitted user of drugs.”
¶5.
At trial, Johnson testified that she saw Shelley at the location where the VPD had
instructed her to go. She stated that she knew Shelley, but that she had not seen him in a long
time. Johnson explained that, after exchanging pleasantries, she told Shelley that she wanted
to “get a [forty],” after which Shelley got in the vehicle with her. She testified that she and
Shelley drove to a nearby house, where she handed Shelley the forty dollars in city funds
before Shelley exited the vehicle. She further testified that Shelley went to the back of the
house before he returned with crack cocaine that he placed in her hand. Johnson testified
that, as Shelley handed her the crack cocaine, he stated “that’s a pretty good [forty].” During
cross-examination, Johnson stated that she had never bought drugs from Shelley before July
27, 2007. Video footage from the car was also played for the jury.
¶6.
Paige Mills, an analyst at the Mississippi Crime Laboratory, testified that she tested
the substance that was submitted to her by the VPD. Mills testified that her examination led
her to conclude that the substance contained four-tenths of a gram of cocaine.
¶7.
Shelley’s wife, Septima Johnson, testified on his behalf. She testified that Shelley had
a drug addiction but that she had never known him to sell drugs.
¶8.
Shelley testified that on July 27, 2007, he was employed as a construction worker, but
that he had the day off. He testified that he spent the day “hanging out” with “some people.”
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Unlike Johnson, Shelley testified that he and Johnson had used drugs together “numerous
times.” Shelley admitted that he is the person that can be seen on the videotape of the drug
buy. Shelley explained that, when Johnson stated that she needed a “forty,” he thought: “I
guess she wanted me to sell her 40, but I don’t sell. I don’t sell drugs. She knew where I
could get it at.” Shelley stated that he then took her to the house of a drug dealer named
“Terrance.” Shelley stated that the item that was in his hand as he exited Terrance’s house
was not crack cocaine, but was a piece of paper with a telephone number on it. Shelley
testified that he gave Johnson’s money back to her and gave her a phone number where he
could be reached.
¶9.
During the conference on jury instructions, Shelley requested and was given an
entrapment instruction. After closing arguments, the jury retired and subsequently found
Shelley guilty of selling cocaine. At his sentencing hearing on July 9, 2008, the circuit court
sentenced Shelley to twenty years’ imprisonment, with the sentence to run consecutively to
a sentence that Shelley was already serving. The circuit court then revoked Shelley’s
probation for the prior sentence and ordered that Shelley receive drug and alcohol counseling
while in prison.
¶10.
Additional facts, as necessary, will be related during our analysis and discussion of
the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
1.
¶11.
Batson Challenge
In his first issue, Shelley contends that the circuit court erred in allowing the State to
proceed with a peremptory strike in light of Batson v. Kentucky, 476 U.S. 79 (1986). In
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Batson, the United States Supreme Court noted that a prosecutor has wide leeway in using
peremptory strikes, but that “the Equal Protection Clause forbids the prosecutor to challenge
potential jurors solely on account of their race . . . .” Id. at 89.
¶12.
In reviewing the circuit court’s ruling on the State’s peremptory strikes, we remain
mindful that we “revie[w] a trial court’s ruling on a Batson challenge with great deference
and will not overturn the trial court’s ruling unless it is clearly erroneous or against the
overwhelming weight of the evidence.” Pruitt v. State, 986 So. 2d 940, 942 (¶8) (Miss.
2008) (citing Flowers v. State, 947 So. 2d 910, 917 (¶8) (Miss. 2007)). As our supreme court
has explained:
When addressing a Batson challenge, a trial court employs a three-step
procedure: (1) the defendant must make out a prima facie case by showing that
the totality of the relevant facts gives rise to an inference of discriminatory
purpose; (2) once the defendant has made out a prima facie case, the burden
shifts to the State to explain adequately the racial exclusion by offering
permissible, race-neutral justifications for the strikes; and (3) if a race-neutral
explanation is tendered, the trial court must then decide whether the opponent
of the strike has proved purposeful racial discrimination. Johnson v.
California, 545 U.S. 162, 168, 125 S. Ct. 2410, 2416, 162 L. Ed. 2d 129, 138
(2005). The burden remains on the opponent of the strike to show that the
race-neutral explanation given is merely a pretext for racial discrimination.
Hicks v. State, 973 So. 2d 211, 219 [(¶23)] (Miss. 2007) (citing Berry v. State,
802 So. 2d 1033,1042 [(¶29)] (Miss. 2001)).
Id.
¶13.
Shelley objected to the State’s peremptory strike of Juror No. 126. The record reflects
following a colloquy concerning the juror:
THE COURT:
Okay. Next one . . . No. 126.
[PROSECUTOR]: [Juror No. 126] wears his hair in long braids. I don’t
accept jurors -- male jurors with hair longer than my cocounsel. It tends to show nonconformity. And for the
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record, I also don’t accept male jurors that [sic] wear
earrings. That’s -- and the Supreme Court has said that
dress, hairstyle and appearance are race-neutral reasons.
THE COURT:
What says the defendant?
[DEFENSE ATTORNEY]:
Your Honor, as someone who doesn’t style
myself to the standard or the norm, I
would object to that as a non-race-neutral
reason for striking a juror. I don’t think
that that should have any bearing on his
decision to be able to judge a case or be
able to determine whether someone is
innocent or guilty.
[PROSECUTOR]: For the record, I’d respond. I have accepted no jurors -no Caucasian male jurors with long hair.
THE COURT:
Okay. I’m going to accept that as a race-neutral reason.
That’s fine.
(Emphasis added). Shelley contends that the State’s reason for striking Juror No. 126 “was
not race-neutral and amounted to a pretext for racial discrimination.”
¶14.
Here, Shelley made a prima facie case of discriminatory use of peremptory strikes,
and the State then offered a non-discriminatory reason for the strike. After hearing argument
from both the State and the defense, the circuit court determined that the State’s reason was
race-neutral. We note again that the burden remained on Shelley to prove that the State’s
reason for the strike was pretextual.
¶15.
Our supreme court has noted that there are:
five indicia of pretext that are relevant when analyzing the race-neutral reasons
offered by the proponent of a peremptory strike, specifically:
(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
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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.
Flowers, 947 So. 2d at 917 (¶9) (quoting Manning v. State, 765 So. 2d 516, 519 (¶9) (Miss.
2000)).
¶16.
As to the first indicia, there is no dispute that there were no unchallenged Caucasian
members of the panel with long hair. As to the second, there was no voir dire of Juror No.
126 regarding the length of his hair. There is no indication that long hair in any way relates
to the facts of Shelley’s case. As to the fourth indicia, there was no dispute that Juror No.
126’s hair was, in fact, long and braided. Finally, no evidence has been introduced that long
hair on a male is a group-based trait. We find that the five indicia support the circuit court’s
finding that the State’s reason for striking Juror No. 126 was race neutral.
¶17.
This Court has found that a prosecutor’s striking of a potential juror because she was
inattentive and had dyed her hair was a race-neutral reason. Jackson v. State, 5 So. 3d 1144,
1149-50 (¶¶18-20) (Miss. Ct. App. 2008). In so finding, we noted that “a race-neutral reason
for a strike can be some aspect of a prospective juror’s appearance not particular to any race,
such as wearing a beard or having long, unkempt hair.” Id. at 1149 (¶19) (citing Purkett v.
Elem, 514 U.S. 765, 769 (1995)). Furthermore, we note that multiple courts, including the
United States Supreme Court, have found that long hair or other hairstyles is a sufficient
race-neutral reason for a peremptory strike. Purkett, 514 U.S. at 768-69 (holding that
prosecutor’s explanation that he struck a potential juror for having “long, unkempt hair, a
mustache, and a beard” was a race-neutral reason); U.S. v. Clemons, 941 F.2d 321, 325 (5th
Cir. 1991) (holding that the State “articulated non-racial reasons, those being age, hairstyle,
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and dress” and that “[a]ge and appearance have been recognized as legitimate reasons for
peremptorily striking potential jurors.”); State v. Washington, 288 S.W.3d 312, 316-17 (Mo.
Ct. App. 2009) (holding that prosecutor’s peremptory strike of a juror for having a “very
precise and very individualistic hairstyle” was a race-neutral reason).
¶18.
There is no merit to this contention of error.
2.
¶19.
Prosecutor’s Closing Argument
In his second issue, Shelley contends that the court erred in “failing to object, sua
sponte, to the State’s inflammatory ‘send[-]a[-]message’ remarks made during closing
arguments.”
¶20.
In Spicer v. State, 921 So. 2d 292 (Miss. 2006), our supreme court adopted a two-part
test to be used in determining whether a “send-a-message” argument is reversible error. That
test was later altered slightly by our supreme court in Brown v. State, 986 So. 2d 270 (Miss.
2008). As the Brown court explained:
Depending upon the facts and circumstances of each case, “send-a-message”
arguments may–standing alone–constitute reversible error. Payton v. State,
785 So. 2d 267, 271 (Miss. 1999). In Payton, this Court found the following
“send-a-message” statement to be reversible error:
Send a message to these older, more mature, criminals, “We are
not going to let you ruin young people’s lives like you have
ruined these three people’s lives, and all these lives you
endangered in the process.”
Id. at 270.
We recently addressed this issue in Spicer v. State, 921 So. 2d 292 (Miss.
2006), in which we set forth two threshold inquiries, followed by a
two-pronged test. The first threshold question is whether defense counsel
objected. We noted that, despite the absence of objection, we will not
procedurally bar the issue where “the [send-a-message] argument is so
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‘inflammatory’ that the trial judge should have objected on his own motion.”
Id. at 317 (internal citations omitted).
Spicer’s second threshold inquiry is whether it appears, in examining the
surrounding circumstances, that defense counsel invited the comment. Id. at
318. If so, of course, the issue may be waived.
Once the two threshold questions are satisfied, Spicer provides that, for a
finding of reversible error, “the court must determine (1) whether the remarks
were improper, and (2) if so, whether the remarks prejudicially affected the
accused’s rights.” Id. (internal citations omitted). In attempting to clarify the
application of the test, we stated that
[i]t must be clear beyond a reasonable doubt, that absent the
prosecutor’s comments, the jury could have found the defendant
guilty. This goes beyond a finding of sufficient evidence to
sustain a conviction.
Id. (internal citations omitted).
In analyzing this language in Spicer, we find we should have employed the
term “would” instead of “could.” Thus, to meet the second prong of the test,
we hold that it must be clear beyond a reasonable doubt that, absent the
prosecutor’s inappropriate comments, the jury would have found the defendant
guilty. This, of course, amounts to a harmless-error analysis, and is the
analysis to be used for the second prong of the Spicer test.
Brown, 986 So. 2d at 275-76 (¶¶12-16) (footnotes omitted). The Brown court also had the
following to say about a prosecutor’s decision to use a “send-a-message” argument:
The jurors are representatives of the community in one sense, but they are not
to vote in a representative capacity. Each juror is to apply the law to the
evidence and vote accordingly. The issue which each juror must resolve is not
whether or not he or she wishes to “send a message” but whether or not he or
she believes that the evidence showed the defendant to be guilty of the crime
charged. The jury is an arm of the State but it is not an arm of the prosecution.
The State includes both the prosecution and the accused. The function of the
jury is to weigh the evidence and determine the facts. When the prosecution
wishes to send a message they should employ Western Union. Mississippi
jurors are not messenger boys.
Id. at 275 (¶11) (quoting Williams v. State, 522 So. 2d 201, 209 (Miss. 1988)).
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¶21.
In the present case, the prosecutor made the following remarks during the State’s
initial closing argument:
We did our part, and now it is time for you to do your part. It’s time for you
to help us get drugs off of our street, to help us get these drugs off the street by
getting the criminals that sell the drugs off the streets. We must all do our part.
****
Now, the attorney for [the] defendant wants you to believe that he was just
helping a friend. Well, does the fact that he was helping a friend or the fact
that they’re friends somehow change the fact that he, in fact, sold drugs to her?
In fact, as small as Vicksburg is, I’m sure there are plenty of drug dealers out
there who are selling drugs to their friends.
****
So as I told you before, it’s time to do your part, and this may be the only
opportunity that you have to play a part, to play a definite part in cleaning the
drugs off of our streets, and not only cleaning the drugs off of our streets, but
the defendants who sell drugs. Ladies and gentlemen, do your part this
afternoon, and find the defendant . . . guilty of [the] sale of cocaine.
¶22.
During her closing argument, Shelley’s attorney made the following remarks:
Ladies and gentlemen of the jury, when we talked earlier this morning, most
of you admitted that we do have a drug problem here in Warren County, and
I think most of you, when you leave here today, you will continue to agree to
that. But the reason for the drug problem here in Warren County is not Jeffrey
Shelley. Jeffrey Shelley is a victim of the drug problem in Warren County.
¶23.
A different prosecutor then concluded the State’s closing arguments with the
following remarks:
On July 27, 2007, Jeffrey Shelley did what Jeffrey Shelley does. He violated
the law. He sold some cocaine. And regardless of what he says on the stand,
. . . he sold cocaine, and it wasn’t entrapment. And he’s not such a great guy
that he deserves a third chance. Okay. He takes you for fools. He’s been
getting away with it since he can remember. I’m upholding mine. I’m not
letting drug dealers get away with it. What are you going to do?
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No objection was made by Shelley during the State’s remarks.
¶24.
We find that the remarks were clearly improper. The State asked the jury, on multiple
occasions, to do their part to get “drugs off the streets.” This was improper. The only
question before the jury was whether Shelley had committed the crime of selling cocaine on
July 27, 2007, yet the prosecutors’ remarks went far afield of that question. Since there was
no objection to the remarks, we would have to find that the remarks were so “inflammatory”
that the circuit court, in accordance with Spicer, was required to object sua sponte. We make
no such finding.
¶25.
Our supreme court has stated the following regarding when an appellate court will
find that an error is harmless:
An error may be found . . . to be harmless beyond a reasonable doubt only
“where the weight of the evidence against the accused is overwhelming.”
Clark v. State, 891 So. 2d 136, 142 [(¶29)] (Miss. 2004) ([quoting] Riddley v.
State, 777 So. 2d 31, 35 [(¶12)] (Miss. 2000)). A harmless-error determination
“requires an examination of the facts, the trial context of the error, and the
prejudice created thereby as juxtaposed against the strength of the evidence of
defendant’s guilt.” Hopkins v. State, 799 So. 2d 874, 879 [(¶10)] (Miss. 2001)
[(quoting Cooley v. State, 391 So. 2d 614, 623 (Miss. 1980))]. A
harmless-error determination is made based on a de novo review of the record.
[Arizona v.] Fulminante, 499 U.S. [279,] 295 [(1991)].
Walton v. State, 998 So. 2d 971, 976 (¶14) (Miss. 2008).
¶26.
Having weighed and considered the totality of the circumstances, including the facts,
the context of the improper remarks, and any prejudice that may have been created by them
against the strength of Shelley’s guilt, we find that any error in allowing the prosecutors to
make improper remarks was harmless at worst. The evidence against Shelley, which
included video footage and Johnson’s testimony, was overwhelming. It is clear beyond a
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reasonable doubt that the jury would have found Shelley guilty, even absent the improper
remarks. Therefore, we find that no reversible error flowed from the remarks made during
closing argument.
¶27. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF
CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH
FIFTEEN YEARS TO SERVE AND FIVE YEARS OF POST-RELEASE
SUPERVISION, WITH THE SENTENCE TO RUN CONSECUTIVELY TO THE
SENTENCE IN WARREN COUNTY CAUSE NUMBER 05-0305CRV, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN
COUNTY.
LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND
MAXWELL, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.
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