Titus Depriest Avant v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-KA-00248-COA
TITUS DEPRIEST AVANT
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT 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:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
1/29/2004
HON. ANN H. LAMAR
PANOLA COUNTY CIRCUIT COURT
DAVID L. WALKER
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
JOHN W. CHAMPION
CRIMINAL - FELONY
CONVICTED OF COUNT II, SALE OF COCAINE,
AND SENTENCED TO SERVE A TERM OF EIGHT
YEARS IN THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH SAID SENTENCE TO RUN
CONCURRENT WITH THE SENTENCE IMPOSED
IN CAUSE NUMBER CR2003-132-LP2, AND
TWELVE YEARS POST-RELEASE SUPERVISION,
WITH FIVE YEARS OF REPORTING POSTRELEASE SUPERVISION AND SEVEN YEARS OF
NON-REPORTING POST-RELEASE
SUPERVISION
AFFIRMED: 03/08/2005
BEFORE LEE, P.J., GRIFFIS AND ISHEE, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Titus Depriest Avant was indicted for the sale of marijuana and the sale of cocaine, in violation of
Mississippi Code Annotated Section 41-29-139(a) (Rev. 2001). The jury was unable to reach a verdict
on the sale of marijuana charge, but found Avant guilty of the sale of cocaine. The Circuit Court of Panola
County sentenced Avant to serve a term of eight years in the Mississippi Department of Corrections, with
said sentence to run concurrent with the sentence imposed in Cause Number CR2003-132-LP2. The
court further ordered twelve years post-release supervision, with five years of reporting post-release
supervision and seven years non-reporting post-release supervision.
¶2.
On appeal, Avant argues that the trial court erred in: (1) denying his request to question a
prospective juror regarding a peremptory challenge raised against the juror, (2) allowing the State to call
as a witness a staff member of the district attorney's office, (3) sustaining the State's peremptory challenges,
and (4) denying his motion for a mistrial. We find no error and affirm.
ANALYSIS
I.
¶3.
Did the trial court err in denying Avant's request to question a prospective
juror regarding a peremptory challenge raised against the juror?
During voir dire, the State exercised a peremptory challenge against Stephanie Holman who the
State believed was the sister of Titus Holman, an individual previously convicted of a drug charge. The
information for the strike was provided to the State by both a criminalinvestigator withthe district attorney's
office and an employee with the sheriff's department. The defense counsel objected based on Batson v.
Kentucky, 476 U.S. 79 (1986), and requested an opportunity to question Ms. Holman about the
information. The trial court denied the request finding that a “mini trial” on each Batson challenge was
unnecessary.
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¶4.
Avant argues that the trial court erred in denying his attorney’s request to question Ms. Holman.
Avant relies on Brawner v. State, 872 So. 2d 1, 12 (¶31) (Miss. 2004), which held that although the trial
court does not have to conduct a “mini-hearing” on a peremptory strike each time a peremptory challenge
is exercised based on information gained from outside sources, the trial court does have a duty to ensure
that the information relied upon for the strike is credible.
¶5.
The record indicates that in sustaining the State's peremptory strike, the trial court relied not only
upon the information provided by the outside sources but also upon the demeanor of Ms. Holman.
Specifically, the trial court noted that Ms. Holman had not responded to any questions during voir dire,
including the question about familial connection with crime. Demeanor has been recognized as a raciallyneutral reason for a peremptory strike. Lockett v. State, 517 So. 2d 1346, 1351 (Miss. 1987). The trial
judge stated that, based on her observations of the questioning that took place in open court and the
responses from the jurors, she did not find a pattern of discrimination. The trial judge sustained the State’s
peremptory strike.
¶6.
On appellate review, the trial court's determination under Batson is accorded great deference
because it is based, in large part, on credibility. Id. at 1349. "Great deference" has been defined in the
Batson context as "insulating from appellate reversal any trial findings which are not clearly erroneous."
Id. at 1349-50. Upon review, we find the trial court had a sufficient basis to deny Avant's request to
question Ms. Holman.
II.
¶7.
Did the trial court err in allowing the State to call as a witness a staff
member of the district attorney's office?
During the jury selection process, the State exercised a peremptory strike against Carry L.
Bramlett. Avant objected to the strike based on Batson. The trial court directed the State to explain the
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reasons for the strike. The State then requested permission to call Ida Bryan as a witness. Ms. Bryan
worked at the district attorney's office and had provided the State with the information regarding the strike.
Avant objected but the trial court overruled Avant's objection and allowed the State to call Ms. Bryan as
a witness since she was a staff member of the district attorney's office and not a prospective juror.
¶8.
Avant argues that the trial court erred in allowing the State to call Ms. Bryan as a witness since the
court denied his request to question Ms. Holman. In support of his argument, Avant relies on the Equal
Protection Clause of the Fourteenth Amendment.
¶9.
The record, however, lacks evidence of discrimination. It indicates that the trial judge allowed the
prosecutor to consult with his colleague, who was assisting during voir dire. More importantly, the trial
judge stated that the defense was afforded the same opportunity. Thus, there were no signs of
discrimination.
III.
¶10.
Did the trial court err in sustaining the State's peremptory challenges?
Avant contends the trial court erred in sustaining the State's peremptory challenges. He believes
the trial court improperly accepted as race-neutral the reasons given for the peremptory strikes. We
disagree. Four of five peremptory strikes were used against veniremen who had family members previously
convicted of or prosecuted for a crime. Challenging a juror on account of familial connection with crime
is a race-neutral reason. Id. at 1351. The other strike was used against a venireman who stated that a
video would be helpful to support a conviction. The State did not have a video and, thus, exercised a
peremptory strike.
¶11.
“The trial judge acts as finder of fact when a Batson issue arises.” Lynch v. State, 877 So. 2d
1254, 1270 (¶47) (citing Walker v. State, 815 So. 2d 1209, 1215 (¶12) (Miss. 2002). “The race neutral
explanations must be viewed in the light most favorable to the trial court’s findings.” Id. This Court gives
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great deference to the trial court's findings of whether or not a peremptory challenge was race-neutral.
Manning v. State, 765 So. 2d 516, 519 (¶8) (Miss. 2000). Such deference is necessary because finding
that a striking party engaged in discrimination is largely a factual finding and should be accorded appropriate
deference on appeal. Id. Indeed, we will not overrule a trial court on a Batson ruling unless the record
indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence. Id. We
find no such error.
IV.
¶12.
Did the trial court err in denying Avant's motion for a mistrial?
After the court clerk read the guilty verdict as to the charge for sale of cocaine, Avant requested
that the jury be polled pursuant to Uniform Circuit and County Court Rule 3.10. The trial court then
proceeded to poll the jury. When the court asked juror Mitchell if the guilty verdict represented her vote
on the charge of sale of cocaine, she initially responded, "No." The trial court then asked her, "You did
not vote guilty on Count 2[sale of cocaine]?" Mitchell responded, "Did I vote guilty? Oh, yes, ma'am."
The trial court again asked Mitchell, "On Count 2 on the sale of cocaine we have received a verdict that
says, 'We, the jury, find the defendant guilty of sale of cocaine.' Was that your vote, Mrs. Mitchell?"
Mitchell responded, "Yes, ma'am."
¶13.
Avant subsequently moved for a mistrial, pursuant to Uniform Circuit and County Court Rule 3.12.
Avant believes that the trial court's questioning caused Mitchell to change her vote. However, the record
reflects that Mitchell did not change her vote. Rather, the trial court's questioning merely clarified Mitchell's
vote. After her initial negative response, Mitchell answered clearly, consistently, and distinctly five different
times that she had voted guilty.
¶14.
The trial court is in the best position to determine if a mistrial should be granted. Alexander v.
State, 602 So. 2d 1180, 1182 (Miss. 1992). Here, there is no evidence to support Avant's argument that
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the trial court coerced Mitchell into changing her vote. Thus, the trial court was correct in denying Avant's
motion for a mistrial. Therefore, we find no error.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF
CONVICTION OF COUNT II SALE OF COCAINE AND SENTENCE OF EIGHT YEARS TO
BE SERVED IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS,
WITH SAID SENTENCE TO RUN CONCURRENTLY WITH THE SENTENCE IMPOSED
IN CAUSE NUMBER CR2003-132-LP2, AND SENTENCE OF TWELVE YEARS’ POSTRELEASE SUPERVISION, WITH FIVE YEARS OF REPORTING POST-RELEASE
SUPERVISION AND SEVEN YEARS NON-REPORTING POST-RELEASE SUPERVISION,
WITH SAID SENTENCE TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES
PREVIOUSLY IMPOSED, IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, BARNES AND ISHEE,
JJ. CONCUR. KING, C.J., CONCURS IN RESULT ONLY.
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