H.A.S. Electrical Contractors, Inc. v. Hemphill Construction Company, Inc. ( 2016 )


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  •                      IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2015-CA-00596-SCT
    H.A.S. ELECTRICAL CONTRACTORS, INC.
    v.
    HEMPHILL CONSTRUCTION COMPANY, INC.
    DATE OF JUDGMENT:                         03/24/2015
    TRIAL JUDGE:                              HON. JOHN HUEY EMFINGER
    TRIAL COURT ATTORNEYS:                    JIM L. DAVIS, III
    DAVID BONDS ELLIS
    DANNY ALTON DRAKE
    COURT FROM WHICH APPEALED:                RANKIN COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                   JIM L. DAVIS, III
    ATTORNEYS FOR APPELLEE:                   DAVID BONDS ELLIS
    DANNY ALTON DRAKE
    NATURE OF THE CASE:                       CIVIL - CONTRACT
    DISPOSITION:                              REMANDED WITH DIRECTIONS -
    06/02/2016
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    EN BANC.
    MAXWELL, JUSTICE, FOR THE COURT:
    ¶1.   During jury selection, plaintiff H.A.S. Electrical Contractors (HAS) challenged
    defendant Hemphill Construction Company’s use of two peremptory strikes. HAS argued
    Hemphill’s strikes were racially discriminatory.
    ¶2.   HAS’s race-based objections triggered a three-step Batson1 analysis. But the record
    1
    Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
    , 
    90 L. Ed. 2d 69
    (1986).
    shows the trial court failed to follow the Batson criteria when analyzing the challenged strike
    of Juror 7. We remand this case to the trial court for a limited Batson hearing for Juror 7.
    On remand, the court should determine if HAS can meet its burden to prove purposeful
    discrimination in Hemphill’s exercise of that peremptory strike—i.e., was Hemphill’s stated
    reason for the strike (age) merely pretext for discrimination.
    ¶3.    We retain jurisdiction of this case pending the outcome of that hearing. Once the
    results are certified, we will review the trial court’s Batson determination for Juror 7 and
    address HAS’s remaining issues on appeal.
    Procedural Background
    I.     Suit and Countersuit
    ¶4.    This is a breach-of-contract case involving a subcontract for electrical work for a state
    park in Waveland, Mississippi. Subcontractor HAS Electrical Contractors, Inc., sued
    contractor Hemphill Construction Company, Inc., for breach of contract, quantum meruit,
    and conversion. HAS requested $570,678.71 in compensatory damages, plus attorney’s fees,
    costs, and punitive damages. Hemphill countersued, seeking $23,677.04 in damages.
    Hemphill also asked for attorney’s fees and expenses under the subcontract.
    II.    Jury Selection
    ¶5.    The dispute went to a jury trial. The trial court gave both HAS and Hemphill four
    peremptory strikes to use in selecting the twelve-member jury.2 HAS used two of its strikes
    2
    The parties were asked to select from two twelve-member panels. Of the twenty-
    four potential jury members, four were African-American and the remaining twenty were
    Caucasian.
    2
    without objection. The twelve venire members HAS had accepted were then tendered to
    Hemphill. Hemphill accepted Jurors 1-3 and 5-6, all white females.3 Hemphill then used a
    strike on Juror 7, Don R. Taylor, a black male. HAS interjected, “Judge, we’ll just point out
    that is the first black we have reached on the panel.” The court then asked, “Anything
    further?”
    HAS:            Judge, we – I guess we would go ahead and ask for a race
    neutral reason because it is the first black we have reached on
    panel at this time of the venire.
    Court:          Well, I don’t see how in the world you can have a pattern after
    one strike, but I will, as I believe the cases say, that I should ask
    you for a race neutral reason for Number 7, Taylor.
    Hemphill:       Your Honor, we – my reason, race neutral or otherwise, was
    age. We just thought he was – we would prefer not to have an
    older jury panel.
    Court:          Any response?
    HAS:            They had accepted Number 2, who is 68 years old, and
    Number 5 [who] was 62 years old, but they were both white.
    Court:          All right. Well, I believe that there’s not a pattern. That’s the
    first person – that’s the first black that’s been presented. I don’t
    believe that there’s any pattern possible. The older venire,
    whether there’s one or two, or three, I don’t believe that’s a
    good reason so I’m going to – I’m going to recognize the strike.
    ¶6.    Hemphill then accepted Jurors 8, a black female, and Juror 9, a black male. Hemphill
    also accepted Jurors 11 and 12, both white females.4 Hemphill then struck Juror 13, Rodney
    Calhoun, a black male.
    3
    HAS had struck Juror 4, a white male.
    4
    HAS also had struck Juror 10, a white male.
    3
    ¶7.   Once again, HAS objected:
    HAS:        He’s only used two strikes and they’ve both been on blacks,
    your Honor. And we’ve only reached four blacks at this time
    and he has struck 50 percent of them.
    ...
    Court:      All right. . . . I’ll hear from you on your Batson.
    HAS:        Judge, of course, he has now struck Mr. Calhoun. The blacks
    that we have reached on jury venire, Number 7, Don Taylor;
    Number 8, Kadreanna Johnson; Number 9, Mr. Anderson, and;
    Number 13, Mr. Calhoun. Today, he has only used two strikes
    at the time we were at Juror Number 13, and both of them were
    on black males, and there has only been four blacks reached on
    the venire at this time and he has struck 50 percent of them.
    Court:      All right. I will note for the record that Juror Number 7, that was
    D1, is a black male; Juror Number 8, that was accepted, is a
    black female; Juror Number 9, that was accepted, is a black
    male, and; Juror Number 13 is a black male. So, to my count,
    there have been four blacks tendered. He’s exercised strikes on
    two and accepted two. I don’t believe that that is a pattern
    showing discrimination, but I’m going to ask for a race neutral
    reason relative to Juror Number 13.
    Hemphill:   He showed his employer as Labor Ready. There’s a number of
    issues here about, in this case, about part-time and temporary
    employees and we think that would – he would have a bias
    toward the Plaintiff in this matter.
    Court:      What says the Plaintiff?
    HAS:        One second, your Honor. We wouldn’t accept that as a race
    neutral reason, your Honor.
    Court:      You said you do?
    HAS:        Do not. Would not.
    Court:      All right. I do. I’m going to uphold the strike on that.
    4
    ¶8.    Neither side used any more peremptory strikes. Jurors 14-17, two white females and
    two white males, completed the jury panel. And Jurors 18 and 19, both white males, were
    selected as alternates.
    III.   Verdict and Award
    ¶9.    At the end of trial, the jury found in Hemphill’s favor on both HAS’s claims and
    Hemphill’s counterclaim. While the jury awarded Hemphill no money damages, the trial
    court awarded Hemphill $90,000 in attorneys fees and expenses. The trial judge based the
    award on “prevailing party” language in the subcontract.
    Issues on Appeal
    ¶10.   On appeal, HAS argues for a new trial, insisting the trial judge failed to conduct a
    proper Batson hearing during jury selection. See Batson v. Kentucky, 
    476 U.S. 79
    , 89, 
    106 S. Ct. 1712
    , 1719, 
    90 L. Ed. 2d 69
    (1986). HAS claims the trial court failed to complete the
    required three-step Batson analysis because it did not consider if Hemphill’s stated race-
    neutral reason was persuasive. Instead, it argues the court wrongly dismissed HAS’s Batson
    challenges for “failure” to establish a pattern of discrimination.
    ¶11.   Alternatively, HAS requests we vacate the award of attorneys fees. HAS suggests
    Hemphill was not the “prevailing party” because the jury awarded Hemphill no money
    damages.
    Discussion
    ¶12.   At this juncture, we address the Batson issue only. While we find no Batson error
    connected to Juror 13, we do agree with HAS that the trial court failed to conduct a proper
    5
    Batson hearing for Juror 7. And we remand for the limited purpose of holding such a
    hearing.
    I.     Batson’s Three-Part Analysis
    ¶13.   The privilege to use peremptory strikes “is subject to the commands of the Equal
    Protection Clause.” 
    Batson, 476 U.S. at 89
    , 106 S. Ct. at 1719, 
    90 L. Ed. 2d 69
    . The Equal
    Protection Clause prohibits using peremptory strikes to engage in racial discrimination. 
    Id. While Batson
    addressed a prosecutor’s use of peremptory strikes in a criminal case, the same
    prohibition applies when selecting juries in civil cases. E.g., Burnett v. Fulton, 
    854 So. 2d 1010
    , 1013-14 (Miss. 2003) (applying Batson to medical-malpractice case).
    ¶14.   To safeguard against racial discrimination in jury selection, the United States Supreme
    Court in Batson established a three-step process. Pitchford v. State, 
    45 So. 3d 216
    , 224
    (Miss. 2010) (citing Batson, 
    476 U.S. 79
    ). First, the party objecting to the use of a
    peremptory strike has the burden to make a prima facie case that race was the criterion for
    the strike. Second, if the objecting party makes such a showing, the burden shifts to the
    striking party to state a race-neutral reason for the strike.5 Third, after the striking party
    offers its race-neutral explanation, the court must determine if the objecting party met its
    burden to prove purposeful discrimination in the exercise of the peremptory strike—that the
    5
    Race-neutral reasons previously accepted by this court include, but are not limited
    to, “age, demeanor, marital status, single with children, prosecutor distrusted juror,
    educational background, employment history, criminal record, young and single, friend
    charged with crime, unemployed with no roots in community, posture and demeanor
    indicated juror was hostile to being in court, juror was late, short term employment[,]” and
    defense distrusted juror. Hardison v. State, 
    94 So. 3d 1092
    , 1098 (Miss. 2012) (quoting
    Davis v. State, 
    660 So. 2d 1228
    , 1242 (Miss. 1995)).
    6
    stated reason for the strike was merely a pretext for discrimination. 
    Id. ¶15. On
    appeal, we “afford[] great deference to the trial court’s findings of whether a
    peremptory challenge was race neutral . . . because finding that a striking party engaged in
    discrimination is largely a factual finding.” Berry v. State, 
    802 So. 2d 1033
    , 1038 (Miss.
    2001) (citations omitted). But to reach that finding, the trial judge must conduct a proper
    Batson analysis. E.g., Hardison v. State, 
    94 So. 3d 1092
    , 1099 (Miss. 2012) (reversing jury
    verdict because trial court failed to proceed to step three of Batson analysis after being
    offered a race-neutral reason for the strike).
    ¶16.   Normally, we would begin our review with step one and ask if HAS established a
    prima facie case that race was the reason for both strikes. But this court follows the United
    States Supreme Court’s procedure in Hernandez v. New York, 
    500 U.S. 352
    , 355-59, 
    111 S. Ct. 1859
    , 
    114 L. Ed. 2d 395
    (1991). Pruitt v. State, 
    986 So. 2d 940
    , 943-44 (Miss. 2008).
    Under Hernandez, “once reasons are offered by the proponent [of the strike], the issue of
    whether a prima facie case of discrimination has been developed is moot.” Hughes v. State,
    
    735 So. 2d 238
    , 250 (Miss. 1999) (citing 
    Hernandez, 500 U.S. at 359
    ). And we shift our
    focus to step two. Berry v. State, 
    802 So. 2d 1033
    , 1037 (Miss. 2001).
    ¶17.   Here, though the trial court did not buy HAS’s discrimination-based objections to
    striking Juror 7 and Juror 13, the court still required Hemphill to articulate a race-neutral
    reason for both strikes. So the issue of whether HAS met its burden to establish a prima facie
    case is moot. We begin our review with step two.
    II.    Juror 7
    7
    ¶18.   All step two required was that Hemphill state a race-neutral reason for the strike.
    
    Hardison, 94 So. 3d at 1099-1100
    . Hemphill claimed it struck Juror 7, Taylor, because of
    his age—an accepted race-neutral reason. 
    Id. at 1099;
    see also Stewart v. State, 
    662 So. 2d 552
    , 558 (Miss. 1995). This prompted step three of Batson.
    ¶19.   Under this step, once “the [striking] party offers a valid race-neutral reason, the trial
    judge must allow the strike unless the other party demonstrates that the valid race-neutral
    reason was a pretext for discrimination.” 
    Hardison, 94 So. 2d at 1100
    . One way to “attempt
    to refute the other party’s race-neutral reason [is] by ‘pointing out that similar claims can be
    made about non-excluded jurors.’” McFarland v. State, 
    707 So. 2d 166
    , 172 (Miss. 1997).
    And here, when asked to rebut Hemphill’s race-neutral reason, HAS pointed out that two
    nonexcluded white jurors, Juror 2 and Juror 5, were similar in age to Taylor.6
    ¶20.   The trial court failed to consider HAS’s argument, mistakenly requiring HAS to prove
    a pattern of discrimination, instead of pretext. This was error. “[O]nly one instance—not
    a consistent pattern—of purposeful discrimination is enough to prove a discriminatory
    purpose.” McGee v. State, 
    953 So. 2d 211
    , 215 (Miss. 2007). So to meet its burden, HAS
    did not have to show a pattern. Instead, once Hemphill offered a race-neutral reason for
    striking Taylor, HAS’s burden was “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.” 
    Pitchford, 45 So. 3d at 224
    .
    ¶21.   Had step three been conducted properly, HAS would have been permitted to argue and
    6
    While the record does not establish Taylor’s age, HAS stated in its brief that Taylor
    was sixty-three years old. And Hemphill has not contested this assertion.
    8
    develop its theory that Taylor’s age was a pretext for discrimination. And Hemphill would
    have been required to explain why, if it did not want “an older jury,” it accepted two white
    jurors in their sixties. But step three was cut short due to the trial court’s erroneous pattern
    belief. Thus, the record remains unclear on the ultimate question the trial court was tasked
    with deciding—whether Hemphill’s stated reason for striking Taylor was race-neutral or
    merely a pretext for purposeful discrimination. See 
    Pruitt, 986 So. 2d at 944
    . For this
    reason, we find remand necessary to afford HAS a full hearing on its claim Hemphill’s strike
    of Taylor was discriminatory.
    III.   Juror 13
    ¶22.   But Juror 13, Calhoun, presents a different story. As with Juror 7, the trial court was
    not persuaded HAS had made a prima facie case. But as with Juror 7, this issue is moot
    because the judge required Hemphill to state a race-neutral reason. 
    Id. at 943-44;
    Hughes,
    735 So. 2d at 250
    . And once again, Hemphill did. Calhoun worked for a temporary-
    employment company, and the case involved issues of part-time and temporary employment.
    Thus, Hemphill was concerned Calhoun would be biased against it. See Foster v. State, 
    639 So. 2d 1263
    , 1280 (Miss. 1994) (listing employment history and type of employment as
    accepted race-neutral reasons).
    ¶23.   Significantly, at this point, the judge gave HAS the opportunity to rebut Hemphill’s
    race-neutral reason and persuade him why the reason was pretextual. But in contrast to
    Juror 7, HAS provided no rebuttal. Instead, HAS simply informed the judge it did not
    “accept that as a race-neutral reason.”
    9
    ¶24.   Under step three of Batson, “[t]he 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 (Miss. 2007) (citing Berry v. State, 
    802 So. 2d 1033
    ,
    1042 (Miss. 2001)). And “[w]hen the [objecting party] offers no rebuttal, the court is forced
    to examine only the reasons given by the [striking party].” Bush v. State, 
    585 So. 2d 1262
    ,
    1268 (Miss. 1991); see also Johnson v. State, 
    529 So. 2d 577
    , 584 (Miss.1988) (finding “the
    lack of any rebuttal” to the striking party’s stated race-neutral reason “significant”). HAS
    made absolutely no attempt to meet its burden to prove Hemphill’s reason for striking Juror
    13 was pretextual.7
    ¶25.   Thus, we find no error or unclarity here in the circuit judge’s accepting Hemphill’s
    stated reason to strike Juror 13 as nondiscriminatory. Unlike with Juror 7, no further
    examination for pretext was required. 
    Bush, 585 So. 2d at 1268
    .
    ¶26.   Because the trial court did not err in its Batson analysis of Juror 13, we do not disturb
    the trial court’s determination that the strike of Juror 13 was nondiscriminatory. We remand
    the question of striking Juror 7 only.
    Conclusion
    ¶27.   On remand, the trial court should conduct the third step of Batson analysis for Juror 7.
    HAS should be allowed the opportunity to prove purposeful discrimination—i.e., Hemphill’s
    7
    While the dissent would suggest otherwise, when conducting Batson’s third step,
    the burden remains on the strike’s opponent to show the given race-neutral explanation is
    pretext for discrimination. 
    Hicks, 973 So. 2d at 219
    (citing 
    Berry, 802 So. 2d at 1042
    ).
    Because HAS’s attorney made no attempt to show pretext, under our discretionary review,
    we do not second-guess the judge’s accepting Hemphill’s race-neutral reason for striking
    Juror 13.
    10
    race-neutral reason for striking Taylor was pretextual. And Hemphill should be permitted
    to defend its stated reason for striking Taylor—age. But Hemphill is restricted from giving
    any new, race-neutral reason to justify the strike. Further, to support their arguments, both
    parties are limited to using the record as it existed at the time of the original Batson hearing.
    ¶28.   This court retains jurisdiction of this case pending the trial court’s certified results of
    the Batson hearing. We will then review the trial court’s Batson ruling for Juror 7, along
    with the other appellate issues not addressed in this opinion.
    ¶29.   REMANDED WITH DIRECTIONS.
    WALLER, C.J., DICKINSON, P.J., LAMAR, COLEMAN AND BEAM, JJ.,
    CONCUR. RANDOLPH, P.J., CONCURS WITH SEPARATE WRITTEN OPINION
    JOINED BY BEAM, J.; DICKINSON, P.J., LAMAR, COLEMAN AND MAXWELL,
    JJ., JOIN IN PART. KING, J., CONCURS IN PART AND DISSENTS IN PART
    WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.
    RANDOLPH, PRESIDING JUSTICE, CONCURRING:
    ¶30.   The purpose of Batson8 and its progeny is the eradication of purposeful discrimination
    due to prejudice, animus, or bias reflected in the intentional exclusion of jurors based on their
    race. It is a struggle that plays out daily in courtrooms across our nation.9 Our system
    8
    Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
    , 
    90 L. Ed. 69
    (1986), extended
    to gender-based strikes by J.E.B. v. Alabama, 
    511 U.S. 127
    , 141, 
    114 S. Ct. 1419
    , 128 L.
    Ed. 2d 89 (1994).
    9
    The concept of purposeful discrimination is not relegated to one side or to one race.
    All of HAS’s strikes were against whites, but because Hemphill failed to raise a Batson
    challenge, HAS’s strikes are not before this Court on appeal. When asked at oral argument
    why HAS wanted the two challenged African Americans on the jury, counsel replied that he
    likes minorities and finds them more sympathetic to his clients. HAS’s counsel admitted that
    he selects jurors based on color, but that he “always makes sure he has good notes to justify
    [his strikes]” and is prepared to argue accordingly. This revelation begs the question whether
    HAS claims that Hemphill’s strikes were in fact racially motivated or whether HAS’s
    11
    designates trial judges to oversee compliance—a most difficult task, given that attorneys are
    “mak[ing] sure [they have] good notes to justify [their strikes].” It is the responsibility of the
    trial judge to observe the jury-selection process, which includes, inter alia, the conduct and
    activity of the parties and attorneys in prior cases, the interplay between attorneys and
    potential jurors, and the demeanor of all, and ultimately to evaluate the credibility of all.
    Justice King’s dissent correctly directs the trial court to consider “all of the circumstances
    that bear upon the issue of racial animosity.” (Diss. Op. at ¶ 37) (quoting Snyder v.
    Louisiana, 
    552 U.S. 472
    , 478, 
    128 S. Ct. 1203
    , 
    170 L. Ed. 2d 175
    (2008)). Snyder further
    holds “that these determinations of credibility and demeanor lie peculiarly within a trial
    court’s province, and . . . in the absence of exceptional circumstances, we would defer to the
    trial court.” 
    Snyder, 552 U.S. at 477
    (internal citations omitted). That being said, it is
    incumbent upon our trial judges to understand and follow the mandates of Batson and its
    progeny, and to adhere meticulously to the prescribed process.
    ¶31.   Batson challenges should be analyzed step-by-step. First, the party contesting the
    strike must make a prima facie showing that the juror’s race was the criterion for the strike.
    Birkhead v. State, 
    57 So. 3d 1223
    , 1230 (Miss. 2011). A prima facie showing is made by
    producing evidence sufficient to permit the trial judge to draw an inference based on the
    totality of the circumstances that the strike was racially motivated. See 
    id. If, and
    only if, the
    court is satisfied that a prima facie showing has been made, then the party exercising the
    objections were based on the fact that, since it struck jurors based on race, Hemphill must
    have done the same thing. While offering no insight for the trial judge or this Court, this
    revelation nevertheless illuminates how difficult it is for any judge to sort out the truth.
    12
    strike must offer a race-neutral reason for the strike. Once a race-neutral reason is offered,
    the opposing party may offer rebuttal. See 
    id. at 1229
    (citing Berry v. State, 
    802 So. 2d 1033
    ,
    1037 (Miss. 2001)). At this stage, the trial court should make a factual finding and conclude
    whether the strike should stand or whether the stated reason was pretextual, i.e., a disguise
    for purposeful racial discrimination.10 If the opposing party fails to rebut, the trial judge’s
    decision should be based on the stated reason.11 See id.; 
    Hardison, 94 So. 3d at 1098
    .
    ¶32.   In the case sub judice, when faced with a Batson challenge, the trial judge mistakenly
    found there was no basis for the objection, as no pattern could be established. As the majority
    opinion holds, evidence of a pattern of discriminatory strikes is but one factor a court should
    consider when determining whether the opponent of a strike has made a prima facie showing
    of discrimination; it is not a required factor. (Maj. Op. at ¶ 20) (citing McGee v. State, 
    953 So. 2d 211
    , 215 (Miss. 2007)). See also People v. Davis, 
    803 N.E.2d 514
    , 522 (Ill. App. Ct.
    2004) (“If the absence of a ‘pattern of strikes’ were enough, in and of itself, to defeat the
    establishment of a prima facie showing of discrimination under Batson, this would
    effectively enable a prosecutor to exercise at least one peremptory challenge in a
    discriminatory manner. Such a possibility is untenable in light of the fact that, pursuant to
    10
    At this step, the trial court must make credibility findings, for the trial court is
    “uniquely in a position to observe the demeanor and assess the credibility” of the attorneys
    during jury selection as well as the demeanor of the potential jurors—observations that a
    blank record fails to reveal. See 
    Birkhead, 57 So. 3d at 1230
    ; Booker v. State, 
    5 So. 3d 356
    ,
    360 (Miss. 2008).
    11
    I agree with Justice Maxwell’s majority opinion that, because HAS failed to rebut
    the race-neutral reason offered for the second strike, the Batson hearing on remand should
    be limited to the first Batson challenge.
    13
    Batson and its progeny, the exclusion of just one venireperson on account of race is
    unconstitutional and requires reversal of the conviction.”).
    ¶33.   Based on the record before us, it is unclear whether the trial court ruled that HAS had
    established a prima facie showing that racial animosity was the criterion for Hemphill’s first
    strike, as the proceedings drifted into the second stage of a Batson analysis. While pondering
    the lack of a pattern, the trial judge nevertheless required Hemphill to offer a race-neutral
    reason for its strike.12 The trial judge failed to address any other factor it considered in
    ascertaining whether HAS had made its prima facie showing.13 Rather than proceeding
    methodically through the required three-step Batson procedure, the trial court collapsed the
    12
    HAS’s attempted rebuttal of Hemphill’s reason for its first strike (not wanting a jury
    panel composed of older persons) was that Hemphill had accepted two similarly aged jurors.
    HAS’s argument is based on facts not in the record. Two unidentified female jurors are said
    to have been 62 and 68 years old, and while HAS argues in its brief that the challenged juror
    was 63, his age is undisclosed in the recorded voir dire. Included in HAS’s motion for new
    trial is a list of potential jurors, their races, and their genders, which is not contained
    anywhere else in the record, nor is it supported by any evidence. The juror information cards
    were not made a part of the record. We cannot consider facts outside the record. See
    Greenwood Leflore Hosp. v. Miss. State Dep’t of Health, 
    980 So. 2d 931
    , 936 (Miss. 2008)
    (citing In re City of Jackson, 
    912 So. 2d 961
    , 971 (Miss. 2005)).
    13
    HAS objected when Hemphill exercised its first strike against the first black juror
    on the panel and stated “I guess we would go ahead and ask for a race neutral reason
    because it is the first black we have reached on panel at this time of the venire.” But HAS
    had no right to ask for a race-neutral reason. Only if the court found a prima facie showing
    had been made was it to ask for a race-neutral basis for the strike. Both parties compounded
    this confusion in their post-trial arguments. HAS argued in its motion for new trial that, after
    Hemphill had used two of its four strikes against African Americans, HAS “alleged a racial
    pattern and requested race neutral reasons. The [c]ourt did not feel that this was a pattern
    exclusion of blacks and allowed both of [HAS]’s peremptory strikes to stand[.]” Not to be
    outdone, Hemphill argued that “the [c]ourt was clearly correct when it did not require a
    racially neutral reason for the second peremptory strike.” But HAS did not allege a pattern
    after the first strike, and the trial court did require Hemphill to give a race-neutral reason for
    the second strike.
    14
    first and second steps into a single inquiry, an obvious error. Courts are required to complete
    the first step, a determination of whether a prima facie showing has been made, before
    proceeding to the second. In the absence of a prima facie showing, the inquiry terminates.
    ¶34.   On remand, the trial judge may consider such evidence and arguments presented by
    the parties so as to ensure compliance with the third step of Batson, as steps one and two are
    moot. Additionally, the judge may consider any notes he may have made contemporaneous
    to voir dire and may also rely upon his own recollections and observations made of the jurors
    or the attorneys. If the trial judge relied upon information contained on the juror information
    cards, he may consider them as well.
    BEAM, J., JOINS THIS OPINION. DICKINSON, P.J., LAMAR, COLEMAN
    AND MAXWELL, JJ., JOIN THIS OPINION IN PART.
    KING, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
    ¶35.   I agree with the majority’s conclusion that the trial court erred in its Batson analysis
    for Juror 7. However, because I believe that there are serious concerns as to the pretextual
    nature of both of Hemphill’s proffered explanations, I dissent from the majority’s finding that
    the trial court may not consider Hemphill’s explanation for striking Juror 13 on remand.
    ¶36.   The purpose of Batson was to “eradicate racial discrimination in the procedures used
    to select the venire from which individual jurors are drawn.” Batson v. Kentucky, 
    476 U.S. 79
    , 85, 
    106 S. Ct. 1712
    , 1716, 
    90 L. Ed. 2d 69
    (1986). The United States Supreme Court
    described its efforts as “unceasing” on this issue. 
    Id. Indeed, the
    Court found that “racial
    discrimination in jury selection offends the Equal Protection Clause,” because a party has
    “the right to be tried by a jury whose members are selected pursuant to nondiscriminatory
    15
    criteria.” 
    Id. at 85.
    This concept advances the policy of the United States, that “all litigants
    in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected
    at random from a fair cross section of the community in the district or division wherein the
    court convenes.” 28 U.S.C.A. § 1861 (West 2015) (emphasis added). Yet, despite the
    Supreme Court’s unceasing efforts, discrimination in the use of peremptory challenges
    remains to this day. The majority and concurring opinions do little to diminish this problem
    and, I fear, may even widen the gap that our Supreme Court has worked so hard to close.
    ¶37.   The United States Supreme Court previously has emphasized that, when analyzing a
    Batson objection, “all of the circumstances that bear upon the issue of racial animosity must
    be consulted.” Snyder v. Louisiana, 
    552 U.S. 472
    , 478, 
    128 S. Ct. 1203
    , 1208, 
    170 L. Ed. 2d
    175 (2008). When there are doubts as to the outcome of a Batson challenge, a court is
    “required to consider the strike of [one juror] for the bearing it might have upon the strike
    of [a second juror].”14 
    Id. Hemphill used
    its first peremptory strike against the first African-
    14
    Not only does the trial court have a duty to evaluate the proffered explanations
    individually, but also in toto to determine if the reasons given were pretext for
    discrimination. Flowers v. State, 
    947 So. 2d 910
    , 937 (Miss. 2007). “The persuasiveness of
    a proffered explanation may be magnified or diminished by the persuasiveness of companion
    explanations . . . .” Gamble v. State, 
    357 S.E.2d 792
    , 795 (Ga. 1987); see also Lewis v.
    Lewis, 
    321 F.3d 824
    , 831 (9th Cir. 2003) (“After analyzing each of the prosecutor’s
    proffered reasons, our precedent suggests that the court should then step back and evaluate
    all of the reasons together.”). Batson’s prohibition against discrimination in jury selection
    is intended to benefit the parties as well as the potential jurors. The parties as participants
    in the action have the ability to object to the selection process. That same ability is not true
    of potential jurors, so it is the trial court’s responsibility to protect the rights of the potential
    jurors. Thus, contrary to footnote 7 of the majority’s opinion, the ultimate responsibility to
    ensure fairness in the jury selection process rests with the trial court. The majority’s footnote
    7 seems to suggest that the trial court simply sits like one of the three little monkeys who
    sees no evil. Such a position is inconsistent with the responsibility placed upon the trial court
    to prevent unconstitutional discrimination in the jury selection process. While it is true that
    16
    American potential juror, Juror 7, stating when questioned that it did not want an older jury
    panel. Yet, Hemphill had accepted Juror 2, who was Caucasian and sixty-eight years old,
    (five years older than Taylor’s sixty-three years), as well as Juror 5, a sixty-two-year-old,
    who also was Caucasian. Hemphill gave no explanation for its disparate treatment of
    African-American and Caucasian jurors in using its first peremptory strike. Thus, under the
    Snyder precedent, Hemphill’s explanation for striking Juror 7 also throws Hemphill’s reason
    for striking Juror 13 into question. In order to conduct a proper Batson analysis on remand,
    the trial court must be required to consider Hemphill’s use of its peremptory strikes in toto.
    ¶38.   Moreover, I believe that the trial court did in fact err in its Batson analysis for Juror
    13. The majority contends that Juror 13 presents a different story. But the trial court’s
    analysis for Juror 13 is strikingly similar to its analysis for Juror 7. As with Juror 7, when
    HAS objected to Hemphill’s second use of a peremptory strike against an African-American
    potential juror, the trial court again stated that it did not believe that a pattern had been
    established and summarily accepted Hemphill’s proffered explanation without further
    analysis. When asked to provide a reason for striking Juror 13, Hemphill offered a vague and
    nonspecific explanation that lacked substance. Without considering the indicators which
    suggested the proffered reasons were a pretext for racial discrimination, the trial court
    summarily accepted Hemphill’s explanation and stated: “All right. I do. I’m going to uphold
    the opponent of a strike does carry a burden, that does not relieve the trial court of its
    obligation to consider whether there is pretext in the exercise of a strike.
    17
    the strike on that.”15 Clearly the trial court failed to address any of the factors to be
    considered when determining whether the proffered explanations were merely a pretext for
    intentional discrimination in both Juror 7’s case and in Juror 13’s case.
    ¶39.   The majority writes that “the burden remains on the strike’s opponent to show the
    given race-neutral explanation is pretext for discrimination” in the third step of Batson. The
    majority fails to address the fact that the opponent of the strike must be given a fair
    opportunity to rebut the proponent’s proffered reasons. Here, after HAS objected to
    Hemphill’s second use of peremptory strikes to exclude an African-American juror, the trial
    court again stated that he did not believe that a pattern had been established but asked for a
    race neutral reason. Hemphill responded that he might have a possible bias toward the
    plaintiff because of his employment by Labor Ready. HAS then stated that it would not
    accept that as a race neutral reason. The trial court did not allow any further analysis and
    merely stated, “All right. I do.” Thus, HAS had no opportunity to explain why it believed that
    Hemphill’s stated reason was pretextual. Not only was HAS deprived of a fair opportunity
    to respond, but I believe any response would have been moot. The trial court summarily
    accepted Hemphill’s explanations without analysis or concern. That summary acceptance of
    Hemphill’s explanations for both Jurors 7 and 13 is precisely why, on remand, the trial court
    must revisit both of Hemphill’s questionable strikes.
    ¶40.   Additionally, this Court has held that a trial court should consider “the extent and
    15
    The trial court made this ruling despite the fact that, after the jury was picked, when
    discussing the topic of objections during trial, the trial court itself stated that “[t]he things
    that will give me the most problems is going to be on relevance and things of that nature
    since I know nothing about the case.”
    18
    nature of voir dire on the grounds upon which the strike is being exercised.” Hardison v.
    State, 
    94 So. 3d 1092
    , 1100 (Miss. 2012). “If the State asserts that it was concerned about
    a particular characteristic but did not engage in meaningful voir dire examination on that
    subject, then the State’s failure to question the juror on that topic is some evidence that the
    asserted reason was a pretext for discrimination.” 
    Reed, 555 F.3d at 376
    . The trial court
    conducted no analysis into whether there was a possibility of actual bias of not. When the
    trial court asked Hemphill to give a race-neutral reason for striking Juror 13, Hemphill stated
    that it had struck Calhoun because he had listed his place of employment as Labor Ready on
    his jury card and because the case contained a number of issues about part-time and
    temporary employees. Yet neither party in voir dire asked the potential jury members whether
    they were temporarily employed or whether they worked part-time. In fact, no questions were
    asked of either Taylor or Calhoun during voir dire. The trial court failed to take any of the
    Batson factors into consideration. It merely stated that it accepted Hemphill’s reason and
    moved on.
    ¶41.   And, while it may be arguable whether part-time or temporary employment was
    enough of an issue to evoke wariness, it is the trial judge’s burden to conduct a proper
    Batson analysis. Cf. 
    Hardison, 94 So. 3d at 1102
    (“[T]he trial judge’s failure to conduct a
    proper Batson analysis constituted clear error.”); Hatten v. State, 
    628 So. 2d 294
    , 298 (Miss.
    1993) (“[W]e today decide it necessary that the trial courts make an on-the-record, factual
    determination, of the merits of the reasons cited by the State for the use of its peremptory
    challenges against potential jurors.”).
    19
    ¶42.   The concurring opinion initially notes that the purpose of Batson is the elimination
    of unconstitutional discrimination in the jury selection process. However, the concurring
    opinion then immediately strays from the issue of this case by its extended discussion in
    footnote nine, of HAS and its motivation in the exercise of jury challenges, and whether that
    motivation is the basis upon which it questioned Hemphill’s jury strikes. The issue of
    whether HAS improperly struck jurors was not before the trial court and is not now before
    this Court. Therefore, any speculation thereof is moot. The effect and perhaps the purpose
    of such a discussion is to cloud rather than illuminate the issue which this Court is asked to
    address.
    ¶43.   The concurring opinion does then correctly note that the burden is placed upon the
    trial judge to ensure that there is no unconstitutional discrimination in the jury selection
    process. This Court has not always been of assistance to the trial courts in that effort. Perhaps
    the greatest service that this Court could render in that effort would be the complete
    elimination of peremptory jury challenges, and the requirement that all challenges be based
    upon cause clearly set out in the record. Hemphill Construction appears to have made no
    effort in the record before this Court to demonstrate the truth of the reasons given for striking
    Jurors 7 and 13. Such a requirement would eliminate the often farcical process of offering
    questionable reasons for striking jurors in an effort to avoid the mandate of Batson.
    ¶44.   In conclusion, the concurring opinion states that, upon remand, “the trial judge may
    consider such evidence and arguments presented by the parties so as to ensure compliance
    with the third step of Batson. . . .” I would disagree. The determination should be made upon
    20
    the facts as were before the court when the strikes were exercised. While this would include
    the trial court’s contemporaneous notes, it would not allow for the introduction of new
    information. Nor should it be read as allowing Hemphill to view the existing record with a
    high powered microscope to find a new reason to justify its challenge.
    ¶45.     The approach taken by the majority and concurring opinion would seem to be
    designed to limit, rather than fully enforce, the mandate of Batson. The majority’s holding
    that, notwithstanding the questionable circumstances surrounding the strikes of both Jurors
    7 and 13, that each must be considered in a vacuum and that there was no error with respect
    to Juror 13, at best defies logic. At worst, it appears to be a self-fulfilling prophecy upon
    which to justify a finding of no discriminatory action. Accordingly, I dissent from the
    majority’s finding that the trial court did not err in conducting its Batson analysis for Juror
    13 and would require the trial court to consider Hemphill’s use of its peremptory strikes in
    whole.
    KITCHENS, J., JOINS THIS OPINION.
    21