Roger Eric Thorson v. State of Mississippi ( 1988 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 96-DP-00144-SCT
ROGER THORSON, a/k/a ROGER ERIC THORSON
v.
STATE OF MISSISSIPPI
CONSOLIDATED WITH
90-DP-00015-SCT
ROGER ERIC THORSON
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 11/02/95
TRIAL JUDGE: HON. JERRY OWEN TERRY, SR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: HENRY DALE ROBINSON
ELIZABETH JANE HICKS
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LESLIE L. LEE
DISTRICT ATTORNEY: CONO CARANNA
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT
APPEAL
DISPOSITION: REVERSED AND REMANDED - 8/20/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 9/10/98
EN BANC.
MILLS, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE AND FACTS
¶1. Roger Eric Thorson was convicted of capital murder by a Walthall County Circuit Court jury and
sentenced to death by lethal injection. In September of 1988, Thorson timely appealed to this Court
and we affirmed the trial court on all issues except the Batson issue. Thorson v. State, 653 So. 2d
876 (Miss. 1994). Upon remand, the trial judge found no Batson violation and held that Thorson was
not entitled to a new trial. From this finding, Thorson appeals.
ISSUES
I. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THORSON WAS
REQUIRED TO PRESENT A PRIMA FACIE SHOWING OF DISCRIMINATION IN JURY
SELECTION.
II. WHETHER THE REASONS PROFFERED BY THE STATE FOR EXERCISING ITS
PEREMPTORY CHALLENGES WERE PRETEXTUAL OR RACE-NEUTRAL.
III. WHETHER THE STATE VIOLATED THE FIRST AND FOURTEENTH
AMENDMENTS OF THE CONSTITUTION BY STRIKING TWO JURORS ON THE
BASIS OF THEIR RELIGIOUS BELIEFS.
IV. WHETHER THE TRIAL COURT ERRED IN DENYING THORSON'S MOTION FOR
AN EXPERT IN STATISTICS.
V. WHETHER THE TRIAL COURT ERRED IN DENYING THORSON'S MOTION FOR
DISCOVERY PRIOR TO THE BATSON HEARING.
VI. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW THORSON TO
EFFECTIVELY CROSS-EXAMINE THE PROSECUTOR.
VII. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION
TO RELY ON THIRD-PARTY INFORMATION AS REASON FOR STRIKING JURORS.
VIII. WHETHER THE TRIAL COURT ERRED IN DENYING THORSON'S MOTION FOR
A CONTINUANCE TO PREPARE CROSS-EXAMINATION AND REBUTTAL.
DISCUSSION
I. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THORSON WAS
REQUIRED TO PRESENT A PRIMA FACIE SHOWING OF DISCRIMINATION IN JURY
SELECTION.
¶2. A Batson challenge to a peremptory strike should proceed as follows: First, the defendant must
establish a prima facie case of discrimination in the selection of jury members. Berry v. State 703
So. 2d 269 (Miss. 1997)( citing Batson v. Kentucky, 476 U.S. 79 (1986).). The prosecution then has
the burden of stating a racially neutral reason for the challenged strike. If the State gives a racially
neutral explanation, the defendant can rebut the explanation. Finally, the trial court must make a
factual finding to determine if the prosecution engaged in purposeful discrimination. If the defendant
fails to rebut, the trial judge must base his decision on the reasons given by the State.
¶3. Thorson asserts that the trial judge erroneously required him to make a prima facie showing of
the Batson criteria. He claims that this Court would not have remanded his case for a Batson hearing
if we had not already found that he made a prima facie case of discrimination. Thus, he contends that
the trial court erred in asking him to make a prima facie case of discrimination. This contention is
unsupported by the record, unnecessary for our holding today, and unworthy of further analysis
herein.
II. WHETHER THE REASONS PROFFERED BY THE STATE FOR EXERCISING ITS
PEREMPTORY CHALLENGES WERE PRETEXTUAL OR RACE-NEUTRAL?
¶4. We give great deference to the trial court's findings of whether or not a peremptory challenge was
race neutral. Simon v. State, 679 So. 2d 617, 621 (Miss. 1996). Such deference is necessary because
finding that a striking party engaged in discrimination is largely a factual finding and thus should be
accorded appropriate deference on appeal. Hernandez v. New York, 500 U.S. 352, 367-68 (1991);
Anderson v. City of Bessemer City, 470 U.S. 564, 573-75 (1985). 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. Lockett v. State, 517 So. 2d 1346, 1350 (Miss.
1987).
¶5. As stated supra, determining whether there has been a Batson violation involves a three step
process. The second step of the process entails submission by the state of a race neutral reason for
striking a particular juror. At this point, the trial judge should accept the reason if it appears valid on
its face. Hernandez , 500 U.S. at 360. The state's reason shall be deemed facially valid unless the
prosecutor's explanation embodies inherent discriminatory intent. Id. After affording the defendant an
opportunity to rebut, the trial court should proceed to the third step of Batson and determine
whether or not the opponent of the strike has proven intentional discrimination. Batson, 476 U.S. at
98. At this stage, the trial court determines if the reasons given by the prosecution were pretexts for
intentional discrimination.
¶6. The trial judge in the case sub judice submitted an eleven page finding of facts in which the judge
reviewed the state's reasons for each of its strikes and determined that they were not racially
motivated. Since these issues are not dispositive herein, we do not address the individual strikes.
III. WHETHER THE STATE VIOLATED THE FIRST AND FOURTEENTH
AMENDMENTS OF THE CONSTITUTION BY STRIKING TWO JURORS ON THE
BASIS OF THEIR RELIGIOUS BELIEFS.
¶7. Thorson maintains that the trial judge erred in holding that the State did not violate the Equal
Protection Clause when the prosecutor struck two jurors based on their religious beliefs. He is
referring to the fact that the State struck Patty Jackson and Margaret Peters because they were
members of the Holiness faith. Thorson asserts that striking a person based on her religious beliefs is
tantamount to striking a juror based on her race or gender. He claims that by striking a person based
on her religious beliefs, the prosecutor not only violated the Equal Protection clause, but also
violated Section 13-5-2 of the Mississippi Code of 1972, as amended.
¶8. The issue of whether or not a juror may be struck based on his religious preference alone has not
yet been decided by the United States Supreme Court. In fact, the Supreme Court denied certiorari in
a case in which the Supreme Court of Minnesota held that peremptory strikes based on religious
affiliation were Constitutional. See State v. Davis, 504 N.W.2d 767 (Minn. 1993), cert. denied, 511
U.S. 1115 (1994). A majority of jurisdictions have declined to extend the Batson holding to include
religion, but instead have held that individual state constitutions prohibit exercising peremptory
challenges on the basis of religious affiliation.(1) Contra, a growing number of jurisdictions have held
that religious affiliation is a valid reason for striking potential jurors. (2) There are also some
jurisdictions which have not specifically addressed the issue of whether or not religion based strikes
are Constitutional, but have held that peremptory strikes based on religion are sufficient race-neutral
Batson reasons.(3) Finally, a minority of jurisdictions have held that Batson protection extends
beyond race and incorporates religious groups.(4) We find that Mississippi Constitutional and
Statutory law prohibit exercising peremptory challenges based solely on a person's religious beliefs.
Article 3, Section 18 of the Mississippi Constitution decrees in part that:
No religious test as a qualification for office shall be required; and no preference shall be given
by law to any religious sect or mode of worship; but the free enjoyment of all religious
sentiments and the different modes of worship shall be held sacred....
Section 18 prohibits preference to any particular religion and insures that each citizen of this state
shall enjoy freedom of worship. Peremptory challenges based on a person's membership in a
particular religious order or denomination violate our State Constitution by permitting preference of
one religion over another. Serving on a jury is a right, privilege and responsibility of all our citizens.
We will not allow the State or any other party to impede a citizen's rights to participate in our legal
proceedings based solely on his or her religion.
¶9. In addition to our Constitution, Mississippi statutory law clearly prohibits peremptory challenges
based on religion. Miss. Code Ann. § 13-5-2 reads:
It is the policy of this state that all persons selected for jury service be selected at random from
a fair cross section of the population of the area served by the court, and that all qualified
citizens have the opportunity in accordance with this chapter to be considered for jury service in
this state and an obligation to serve as jurors when summoned for that purpose. A citizen shall
not be excluded from jury service in this state on account of race, color, religion, sex,
national origin, or economic status.
Miss. Code Ann. § 13-5-2 (Supp. 1997) (emphasis added). This statute mandates that the jury pool
be selected from a random cross-section of the population. It also prohibits excluding a person from
serving on a jury based on her race, color, religion, sex, national origin, or economic status. This
chapter of our code is not limited only to grand jury proceedings. It applies equally, unless stated
otherwise, to all jury proceedings. It follows that peremptory strikes cannot be exercised to exclude a
juror for any of these reasons.(5) Thus, Mr. Grissom violated this statute when he struck Patty
Jackson solely because she was a member of the Holiness Faith.(6)
¶10. Religion or lack thereof is an inseparable part of a person's character. Unlike race and gender,
religious beliefs are not ordained at birth. A person may belong to a particular religious group
without adopting all of the tenets and dogma of that religion. The critical determination is an
individual's beliefs, not the doctrines or dogma espoused by her religion.
¶11. In the case sub judice, Grissom testified that he struck Ms. Jackson because she belonged to the
Holiness Faith. He maintained that members of the Holiness Faith did not like to sit in judgment of
their fellow man, and thus, they did not make good jurors. The critical question Grissom should have
asked Jackson was whether or not she felt that she could sit in judgment of her fellow man regardless
of the position of the Holiness Faith. If this question had evinced that she could not, then Grissom
would have had a valid reason for striking her. Thus, while we will permit a party to strike a potential
juror for her actual beliefs, even if that belief springs from her religion, we will not allow challenges
based solely on a potential jurors' religious affiliation. An individual's affiliation with the religious
group of his or her choice shall not be a badge of second class citizenship in Mississippi. Therefore,
we must reverse and remand for a new trial before a jury untainted by religious bias.
IV. WHETHER THE TRIAL COURT ERRED IN DENYING THORSON'S MOTION FOR
AN EXPERT IN STATISTICS.
¶12. Thorson argues that the trial court erred in failing to award funds to hire an expert statistician
prior to the Batson hearing. We have held that whether an expert's testimony is admitted should be at
the sound discretion of the trial judge. Roberts v. Grafe Auto Co., 701 So. 2d 1093, 1098 (Miss.
1997). Unless we find that the trial court is clearly erroneous or abused discretion, we will not
reverse on this issue. Roberts, 701 So. 2d at 1098; Seal v. Miller, 605 So. 2d 240, 243 (Miss. 1992).
Since the present record on appeal lacks "sufficient evidence" to support this assignment of error, we
can not find that the trial judge erred in denying Thorson's request for an expert. Hansen v. State,
592 So. 2d 114, 127 (Miss. 1991). It is therefore unnecessary to address this issue further.
V. WHETHER THE TRIAL COURT ERRED IN DENYING THORSON'S MOTION FOR
DISCOVERY PRIOR TO THE BATSON HEARING?
¶13. Prior to the hearing, Thorson filed a motion for discovery attempting to obtain copies of all
notes made by the district attorney or his assistants relating to voir dire and jury selection in the trial
of this case. The trial judge originally granted this motion, but he subsequently set aside his order
granting discovery and overruled the motion.
¶14. The State asserts that Thorson was not entitled to this material according to Uniform Circuit and
County Court Rule 9.04(B)(1), which mandates:
Work Product. Disclosure shall not be required of legal research or of records, correspondence,
reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of
the prosecuting or defense attorney or members of legal staff.
U.R.C.C.C. 9.04 (B) (1). The State submits that the prosecutor's notes regarding potential jurors
contained opinions, theories and conclusions of the prosecutor which were not discoverable under
this rule.
¶15. We ruled on a similar issue in Mack v. State, 650 So. 2d 1289 (Miss. 1994). In Mack, the
appellant contended that the prosecutor had violated Uniform Criminal Rule of Circuit Court 4.06 by
not giving him information on a potential juror. Mack, 650 So. 2d at 1299. The prosecution had
exercised a peremptory challenge against a venire person because she had written bad checks in the
past. Id. The appellant argued that the prosecution should have furnished him with this information
prior to trial. We held that Rule 4.06 did not require the prosecution to provide the defense with
information about potential jurors unless that information concerned a juror's ability to be fair and
impartial. Likewise, we now find that the defense is not entitled to discover a prosecutor's notes
made about jurors during the voir dire.
¶16. Thorson argues that he needs these notes to help him rebut the State's race neutral reason.
Thorson was already entitled to the transcript of the voir dire and the jury questionnaires. These were
sufficient to help him prepare for the Batson hearing. The personal notes of the prosecutor made
during voir dire almost certainly contain the prosecutor's opinions and theories. The Work Product
Doctrine in Rule 9.04 (B)(1) is intended to protect a party's opinions and theories from his opponent.
Several jurisdictions have already addressed this issue and held that a defendant is not entitled to
discover prosecutor's notes made during voir dire in order to prepare for a Batson hearing.(7) Today,
we join these jurisdictions and hold that the trial court was correct in denying Thorson's request to
obtain notes made by the prosecution during jury selection.
VI. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW THORSON TO
EFFECTIVELY CROSS-EXAMINE THE PROSECUTOR.
¶17. Thorson also asserts that the trial court erred by not allowing him to extensively cross-examine
Grissom. The trial judge informed Thorson that the only cross-examination of Grissom that he would
allow would be "simple clarification as to something that is on the document that was used by the
district attorney in today's testimony...". The trial judge reasoned that if he had required the
prosecution to give race-neutral reasons at the trial, the defendant would have been able to rebut
those reasons, but he would not have been able to cross-examine the prosecutor. Thus, the trial judge
concluded that Thorson should not be able to extensively cross examine the prosecutor during the
Batson hearing.
¶18. In Batson v. Kentucky, the Supreme Court expressly declined to impose a procedure on the
lower courts defining how a Batson hearing should be conducted. Batson, 476 U.S. at 99 n.24. In
United States v. Garrison, the Court held that the appellant misconstrued the purpose of a Batson
hearing when he insisted that he was entitled to an evidentiary hearing in which the prosecutor and
defense attorney could be examined and cross examined. United States v. Garrison , 849 F.2d 103,
106 (4th Cir. 1988). The Garrison Court noted that a Batson inquiry was not meant to be an
intrusion on the trial proceedings, but rather an opportunity for the prosecutor to articulate a race
neutral reason for striking a juror in the particular case. Garrison, 849 F.2d at 106. Although
adversarial, the nature of a Batson hearing does not rise to the level of a mini-trial, and the defendant
is not entitled to cross-examine the prosecutor. United States v. Roan Eagle, 867 F.2d 436, 441 (8th
Cir. 1989).
¶19. In the case sub judice, the state presented a race-neutral reason for each venire person it struck.
Thorson was even given a limited opportunity to cross-examine the prosecutor regarding the notes
on which he based his testimony. This opportunity was more than he would have been entitled to if
the prosecutor had been required to enumerate his race-neutral reasons at trial and the case had not
been remanded for a Batson hearing. It was never intended that a Batson hearing be a full blown
evidentiary hearing, and we choose to follow the majority of jurisdictions that have already held that
a defendant is not entitled to cross-examine the prosecutor at a Batson hearing(8). Thus, we find that
the trial court was correct in not allowing a full-blown cross-examination of the prosecutor.
VII. WHETHER THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION
TO RELY ON THIRD-PARTY INFORMATION AS A REASON FOR STRIKING JURORS.
¶20. Next, Thorson alleges that the trial court erred in allowing Grissom to rely on information
supplied by a third-party as a reason for striking a juror. Thorson is referring to the fact that Grissom
testified that one of the reasons he struck Ella Carr was because a deputy informed him that she had
some family members who had had entanglements with the law.
¶21. Thorson cites several cases from Georgia and South Carolina to support his assertion that when
a prosecutor relies on information or advice from a third party during jury selection, he must prove
that the third person's reasons were not motivated by race in order to survive a Batson challenge.
Lewis v. State, 424 S.E.2d 626,628 (Ga. 1993); Congdon v. State, 424 S.E.2d 630 (Ga. 1993);
Covin v. State, 449 S.E.2d 550 (Ga. Ct. App.1994); State v. Adams, 415 S.E.2d 402 (S.C. 1992).
The cases which Thorson cites all involve situations in which the prosecutor stated that his race-
neutral reason was that some third person had asked him to strike the juror. For example, in Lewis
the prosecutor stated that he struck two black jurors because the victim's wife, who was also black,
requested that he strike them. Lewis, 424 S.E.2d at 627-28. The Lewis Court held that in order for
reliance on a third person to survive a Batson challenge, the State must set forth a racially-neutral,
case-related reason underlying the third person's decision. Id. at 628.
¶22. The case sub judice is distinguishable from the cases cited by Thorson because in this case
Grissom did provide a racially neutral reason that the deputy relied upon. Grissom testified that the
deputy's reason for suggesting that Ella Carr would not be a good juror was that she had family
members who had had entanglements with the law. A venire person being related to a person who
has had entanglements with the law is a sufficient race-neutral reason. Lockett v. State, 517 So. 2d
1346, 1351 (Miss. 1987). Therefore, Grissom's reason for striking Carr survives a Batson challenge.
¶23. Further, in Collins v. State, we held that it was of no consequence that the State's information
obtained from law enforcement officers that a particular venire person was involved in criminal
activity was not in the record. Collins v. State, 691 So. 2d 918, 926-27 (Miss. 1997). It should be
emphasized that a trial court's determination of whether or not a reason is race-neutral largely
depends on the credibility of the prosecutor. Lockett , 517 So.2d at 1352. We have not set any limits
on the prosecutor using legitimate informational sources to obtain facts about prospective jurors.
Collins, 691 So. 2d at 927 n.4 (citing Lockett, 517 So. 2d at 1352). Thus, if a prosecutor in good
faith offers a race-neutral reason supplied to him by a third person, then that reason should overcome
a Batson challenge.
¶24. In the present case, the deputy was a legitimate informational source available to provide the
prosecutor information about prospective jurors. Additionally, the reason the deputy gave Grissom
regarding Ella Carr was a race-neutral reason. Therefore, the trial court did not err in allowing the
prosecutor to use a reason based on the deputy's information as a valid, race-neutral reason to strike
Ella Carr.
VIII. WHETHER THE TRIAL COURT ERRED IN DENYING THORSON'S MOTION FOR
A CONTINUANCE TO PREPARE CROSS-EXAMINATION AND REBUTTAL.
¶25. Thorson's final assignment of error is that the trial court erred when he denied Thorson's request
for a continuance to prepare for cross-examination and rebuttal. After Mr. Grissom testified, Thorson
requested a continuance so that he could review the notes Grissom used during his testimony to
prepare cross-examination and rebuttal. The trial judge denied this motion and instructed defense
counsel that he would allow an hour and one half lunch break in which the defense counsel could
prepare to proceed with cross-examination and rebuttal. After the lunch break, Thorson's counsel
once again moved for a continuance, claiming that he had spent much of the lunch break consulting
with Thorson, and had not had adequate time to review the prosecutor's notes in order to prepare an
adequate cross-examination and rebuttal. Again, the trial court denied Thorson's motion for a
continuance.
¶26. It is well settled in this State that "the decision to grant or deny a continuance is one left to the
sound discretion of the trial court." Johnson v. State, 631 So. 2d 185, 189 (Miss. 1994); Lester v.
State, 692 So. 2d 755 (Miss. 1997); Jackson v. State, 684 So. 2d 1213, 1221 (Miss. 1996). We will
not overturn this decision unless we find an abuse of that discretion. Id. In the case sub judice the
trial judge did not abuse his discretion in refusing to grant Thorson's motion for a continuance.
CONCLUSION
¶27. The State's peremptory strike of Patty Jackson based solely on her religious affiliation violates
Article 3, § 18 of the Mississippi Constitution as well as Mississippi Code Annotated § 13-5-2 of the
Mississippi Code of 1972, as amended. Thus, we reverse and remand for a new trial.
¶28. We find no merit in Thorson's other assignments of error.
¶29. REVERSED AND REMANDED.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, ROBERTS, SMITH AND
WALLER, JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
1. State v. Alen, 616 So. 2d 452 (Fla. 1993); People v. Snow, 746 P.2d 452 (Cal. 1987); State v.
Gilmore, 511 A.2d 1150, 1159 n.3 (N.J. 1986); People v. Langston, 641 N.Y.S.2d 513 (N.Y. Sup.
Ct. 1996) (holding that Batson doctrine does not apply to peremptory challenges based on religious
affiliation, but that the New York Constitution prohibited such challenges.); State v. Levinson, 795
P.2d 845 (Haw. 1990); Commonwealth v. Soares, 387 N.E.2d 499 (Mass. 1979).
2. State v. Davis, 504 N.W.2d 767 (Minn. 1993), cert. denied, 511 U.S. 1115 (1994); Casarez v.
State, 913 S.W.2d 468 (Tex. Crim. App. 1995); United States v. Clemmons, 892 F.2d 1153 (3rdCir.
1989); United States v. Blackman, 66 F.3d 1572 (11th Cir. 1995); People v. Malone, 570 N.E.2d
584 (Ill.App.Ct.), appeal denied, 584 N.E.2d 135 ( Ill. 1991).
3. United States v. Jimenez, 77 F.3d 95 (5th Cir. 1996); James v. Commonwealth, 442 S.E.2d 396
(Va. 1994).
4. Fernandez v. State, 639 So. 2d 658 (Fla. Dist. Ct. App. 1994) (holding that in order to object to a
peremptory challenge, one must show that the venire person challenged is a member of a distinct
racial, ethnic, religious, or gender group and that there is a strong likelihood that the peremptory
challenge is based upon membership in that distinct group.)
5. We are not faced with the question of whether a person can be struck based on economic status
today, so we will not address this issue. However, we would like to note that economic status is not
the equivalent of unemployment and that we will continue to permit peremptory challenges to be
exercised against venire persons based on unemployment.
6. It should also be noted that Grissom cited membership in the Holiness Faith as a reason for striking
Margaret Peters, but since Grissom gave other sufficient reasons for striking Peters, the fact that he
also cited religion is harmless error.
7. Guilder v. State, 794 S.W.2d 765 (Tex.App. 1990); State v. Antwine, 743 S.W.2d 51, 67 (Mo.
1987), cert. denied, 486 U.S. 1017(1988); People v. Mack, 538 N.E.2d 1107 (Ill.1989); Foster v.
State, 374 S.E.2d 188, 192 (Ga. 1988).
8. United States v. Garrison, 849 F.2d 103 (4th Cir. 1988); United States v. Roan Eagle, 867 F.2d
436 (8th Cir. 1989); People v. Mack, 538 N.E.2d 1107 (Ill. 1989); State v. Porter, 391 S.E.2d 144
(N.C. 1990); Powell v. State, 372 S.E.2d 234 (Ga. Ct. App. 1988).