Atiba Parker v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-00490-COA
ATIBA PARKER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
11/17/2006
HON. JAMES T. KITCHENS, JR.
LOWNDES COUNTY CIRCUIT COURT
LESLIE S. LEE
CARRIE A. JOURDAN
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTED OF COUNT I, SALE OF
COCAINE, AND SENTENCE OF TWENTY
YEARS, AND COUNT II, SALE OF
COCAINE, AND SENTENCE OF
FOURTEEN YEARS TO RUN
CONSECUTIVELY TO THE SENTENCE IN
COUNT I, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AND A FINE OF $10,000
AFFIRMED-09/23/2008
BEFORE KING, C.J., BARNES AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
In November 2006, Atiba Parker was convicted of two counts of the sale of cocaine
and sentenced to serve twenty years on Count I and fourteen years on Count II, to run
consecutively, in the custody of the Mississippi Department of Corrections.
¶2.
Aggrieved, Parker now appeals that: (1) the circuit court erred in refusing to sever
Counts I and II of his indictment; (2) the circuit court erred in refusing to grant a
continuance; (3) the circuit court erred in refusing to grant one of his peremptory challenges
during jury selection; (4) the circuit court erred in refusing to grant a mistrial; and (5) his
sentence constitutes cruel and unusual punishment under the Eighth Amendment given his
mental condition.
¶3.
Finding no error, we affirm the judgment of the circuit court.
FACTS AND PROCEDURAL HISTORY
¶4.
Parker was arrested and charged with three separate counts of selling cocaine after
being videotaped selling the drugs to a police informant on three separate occasions. The
first sale took place several days before the second. The third sale happened the day after
the second and was arranged during the second sale. Parker subsequently moved to have all
of the counts severed for trial purposes. The circuit court granted Parker’s motion to sever
with respect to the first sale, but allowed the State to proceed to trial jointly on the other two
sales.
¶5.
During jury selection, after defense counsel struck four white jurors in a row, the State
made an objection to several of defense counsel’s proposed peremptory challenges, arguing
that they were racially motivated and, therefore, unconstitutional under Batson. These
proposed challenges included Juror No. 32, a seventy-nine-year-old white male and retired
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member of the United States Navy. The circuit court requested race-neutral reasons for
defense counsel’s peremptory challenges. The race-neutral reasons provided by counsel for
Parker for striking prospective Juror No. 32 were that he was a retired member of the United
States military and that he had recently served on a civil jury. The circuit judge subsequently
prevented Parker’s counsel from using a remaining peremptory challenge on Juror No. 32;
however, the court’s ruling was not based on the proffered reasons that he was retired
military personnel or that he had recently served on another jury, but solely based on the fact
that Parker’s counsel had failed to exclude the same juror from another venire in a different
trial earlier in the week.
¶6.
After a two-day trial in November 2006, Parker was convicted on two counts of the
sale of cocaine and sentenced to twenty years on Count I and fourteen years on Count II, to
be served consecutively. Parker now appeals.
DISCUSSION
I.
¶7.
The circuit court did not err in refusing to sever Counts I and II of
the indictment.
We review a circuit court’s denial of a motion to sever multiple counts of an
indictment for abuse of discretion. Rushing v. State, 911 So. 2d 526, 532 (¶12) (Miss. 2005).
The general authority to charge and try defendants for multiple counts in the same
indictment is provided by Mississippi Code Annotated section 99-7-2(1) (Rev. 2007), which
provides:
Two (2) or more offenses which are triable in the same court may be charged
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in the same indictment with a separate count for each offense if: (a) the
offenses are based on the same act or transaction; or (b) the offenses are based
on two (2) or more acts or transactions connected together or constituting parts
of a common scheme or plan.
¶8.
Furthermore, the supreme court has established a three-part test for lower courts to
use in order to determine whether a multiple-count indictment is proper. These are as
follows: (1) “whether the time period between the occurrences is insignificant”; (2) “whether
the evidence proving each count would be admissible to prove each of the other counts”; and
(3) “whether the crimes are interwoven.” Rushing, 911 So. 2d at 533 (¶14) (citing Corley
v. State, 584 So. 2d 769, 772 (Miss. 1991)).
¶9.
Here, the circuit court noted that Counts I and II were separated by only one day, that
the alleged crimes were the same, and that they involved substantially the same facts and
witnesses. The trial court severed Count III of the indictment, finding it to be too remote in
time to be included on the same indictment, even though it was separated from the others by
only three days. Accordingly, we cannot say the circuit court abused its discretion in
refusing to sever Counts I and II of the indictment. Therefore, this issue is without merit.
II.
¶10.
The circuit court did not err in denying Parker’s motion for a
continuance.
We will not reverse the decision of a circuit court to deny a motion for a continuance
unless the denial is an abuse of discretion or results in manifest injustice. Ross v. State, 954
So. 2d 968, 1007 (¶91) (Miss. 2007) (citation omitted).
¶11.
Parker argues that due to the fact that his counsel had completed a political campaign
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only a week prior to trial, and was involved in a proceeding in court the day before his trial
began, the circuit court’s refusal to allow a continuance resulted in manifest injustice;
therefore, he should be granted a new trial.
¶12.
At the time of his trial, Parker had been under indictment for six months. Discovery
had been conducted, and subpoenas had been issued.
His counsel was apparently
experienced in handling drug-sale cases. We find nothing in the record indicating that
manifest injustice resulted from the denial of Parker’s motion for a continuance.
Accordingly, we find that this issue is without merit.
III.
¶13.
The circuit court did not err in refusing to grant one of Parker’s
peremptory challenges.
Parker next argues that the circuit court erred in refusing to grant one of his counsel’s
peremptory challenges. He points out that his attorney offered race-neutral reasons for the
peremptory challenge in response to the State’s objection to the challenge on the ground that
it was racially motivated and, therefore, unconstitutional under Batson v. Kentucky, 476 U.S.
79, 90 (1986).
¶14.
Batson was originally intended to prevent racial discrimination in the use of
peremptory challenges during jury selection by the State. The application of Batson has
since been expanded in scope several times and now extends to, among other things, the use
of peremptory challenges by criminal defendants. See Georgia v. McCollum, 505 U.S. 42,
59 (1992). To determine whether a party has improperly used a peremptory challenge to
discriminate against a potential juror, the objecting party must first make a prima facie
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showing of discrimination that race was a criteria for the exercise of the challenge. Stewart
v. State, 662 So. 2d 552, 557-58 (Miss. 1995) (citing Batson, 476 U.S. at 96-97). The
burden then shifts to the party exercising the challenge to offer a non-discriminatory reason
for the proposed strike. Id. The trial court must then make a determination of whether the
objecting party has met its burden to prove its prima facie case for discrimination, and the
court must accept or reject the proponent’s proffered race-neutral reasons. Id. At this stage,
“implausible or fantastic justifications may (and probably will) be found to be pretexts for
purposeful discrimination.” Henley v. State, 729 So. 2d 232, 240 (¶38) (Miss. 1998)
(quoting Purkett v. Elem, 514 U.S. 765, 768 (1995)).
¶15.
In this case, the State made a sufficient prima facie showing that race was a possible
criteria in the defense counsel’s exercise of peremptory challenges, including the challenge
to Juror No. 32. The defense then offered alleged non-pretextual race-neutral reasons for
striking Juror No. 32, namely, that he was retired military personnel and had recently served
on a civil jury. The circuit judge then found that the proffered reasons were pretextual and
sustained the State’s Batson objection.
¶16.
As our standard of review in this case indicates, Batson determinations are highly fact
intensive, based in large part on the trial court’s findings concerning the credibility of the
race-neutral reasons offered with respect to a specific juror. Therefore, we accord great
deference to those determinations absent a clearly erroneous result. Our supreme court noted
in Henley:
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Determination of pretext involves an analysis of factual findings which are
similar to those found under step one: the extent and nature of voir dire on the
grounds upon which the strike is being exercised; the relation between the
reasons for the strike and the facts of the case; the demeanor of the attorney
and the prospective juror; and, disparate impact upon a minority or gender
class.
Henley, 729 So. 2d at 240 (¶39) (footnotes omitted).
¶17.
Here, very little voir dire was conducted with respect to Juror No. 32. The record
indicates that Juror No. 32 did not respond to any questions asked during voir dire.
However, the record also indicates that both parties made use of knowledge that had been
gleaned from a previous voir dire proceeding earlier in the week that examined the same
venire, and over which the same circuit judge presided. More importantly, the demeanor of
the defense attorney with respect to that previous voir dire proceeding and the one at issue
here is telling. The defense attorney, when questioned by the circuit judge, first represented
to the court that the reason Juror No. 32 was not struck during the previous proceeding was
due to the fact that she ran out of challenges. The circuit judge disputed the truthfulness of
the representation by defense counsel, and defense counsel responded that she was merely
“kidding” and that she was saying it “as a joke.”
¶18.
Faced with this situation, we cannot say that the circuit judge committed error in
finding that the reasons proffered by the defense attorney were merely pretextual under
Batson. Accordingly, we find that this issue is without merit.
IV.
¶19.
The circuit court did not err in refusing to grant a mistrial.
Parker argues that the circuit court erred in denying his motion for a mistrial. That
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motion arose from a question asked by the prosecution of a defense character witness on
cross-examination, in which the prosecutor mentioned previous narcotics charges against
Parker. After defense counsel objected, the jury was sent home, and the circuit judge asked
for arguments on the subject the next morning.
¶20.
The next day, both sides made their arguments on the issue. The circuit judge found
that the prosecutor improperly asked the question about the previous narcotics charges
against Parker and that the prosecutor should have first asked for a balancing test to be
conducted outside the presence of the jury under Porter v. State, 735 So. 2d 987, 989 (¶5)
(Miss. 1999). Parker’s counsel then made a motion for a mistrial. The circuit judge denied
the motion, but the judge did instruct the jury to disregard the improper question. All jurors
indicated that they could follow the instruction to disregard.
¶21.
In all cases, “[t]he judge is provided considerable discretion to determine whether the
remark is so prejudicial that a mistrial should be declared.” Carpenter v. State, 910 So. 2d
528, 534 (¶23) (Miss. 2005) (quoting Roundtree v. State, 568 So. 2d 1173, 1177 (Miss.
1990)). Furthermore, in the absence of any evidence to the contrary, there is a presumption
that the jury followed all of the trial court’s instructions in reaching its verdict. Reid v. State,
266 So. 2d 21, 28 (Miss. 1972).
¶22.
In this case, the prosecutor mistakenly asked an improper question. The circuit judge
asked for arguments on the issue, correctly identified the error, and took appropriate
remedial steps. Those steps included: instructing the jury to disregard the content of the
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improper question and asking each juror to affirm that he or she could do so. There is no
evidence to indicate that the jurors failed to heed the circuit judge’s instruction. Therefore,
we cannot say that the circuit judge abused his discretion in failing to grant Parker’s motion
for a mistrial. Accordingly, this issue is without merit.
V.
¶23.
Parker’s sentence is not cruel and unusual under the Eighth
Amendment.
Parker argues that his consecutive sentences of twenty years and fourteen years,
totaling thirty-four years, constitute cruel and unusual punishment under the Eighth
Amendment to the United States Constitution. Parker concedes that his sentence is within
the limits permitted by statute in this state; instead, he makes what amounts to be a policy
argument, citing the small amount of drugs involved in his crimes and his relatively young
age of twenty-nine.
¶24.
Generally, sentencing is within the complete discretion of the trial court and not
subject to appellate review if it is within the limits prescribed by statute. Hoops v. State, 681
So. 2d 521, 537-38 (Miss. 1996). Our supreme court has held, however, that a sentence
which is “grossly disproportionate” to the crime committed is subject to attack on Eighth
Amendment grounds. Id. at 538.
¶25.
Parker, however, offers no cases supporting his argument that consecutive sentences
for serious drug offenses that fall within the statutory limits are “grossly disproportionate.”
Therefore, we cannot say that the circuit judge abused his discretion or violated Parker’s
constitutional right to be free from cruel and unusual punishment when he sentenced Parker.
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Accordingly, we find that this issue is without merit.
¶26. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF
CONVICTION OF COUNT I, SALE OF COCAINE, AND SENTENCE OF TWENTY
YEARS, AND COUNT II, SALE OF COCAINE, AND SENTENCE OF FOURTEEN
YEARS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND
A FINE OF $10,000, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO LOWNDES COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES,
ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN PART AND
IN THE RESULT.
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