James Michael Strickland v. State of Mississippi ( 2006 )


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  •                     IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2006-KA-01573-SCT
    JAMES MICHAEL STRICKLAND
    v.
    STATE OF MISSISSIPPI
    DATE OF JUDGMENT:                          08/31/2006
    TRIAL JUDGE:                               HON. LEE J. HOWARD
    COURT FROM WHICH APPEALED:                 LOWNDES COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                    MOSE LEE SUDDUTH, JR.
    ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
    BY: DEIRDRE McCRORY
    DISTRICT ATTORNEY:                         FORREST ALLGOOD
    NATURE OF THE CASE:                        CRIMINAL - FELONY
    DISPOSITION:                               AFFIRMED - 03/06/2008
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    EN BANC.
    RANDOLPH, JUSTICE, FOR THE COURT:
    ¶1.    James Michael Strickland (“Strickland”) was arrested in Lowndes County,
    Mississippi, and charged with armed robbery of the Penny Ridge Grocery in Columbus,
    Mississippi. In the Circuit Court of Lowndes County, Strickland was found guilty by a jury.
    The jury, however, could not “unanimously agree on the proper punishment.” Since the jury
    was unable to agree unanimously on the sentence of life imprisonment, the trial judge was
    statutorily mandated to sentence Strickland to imprisonment for “any term not less than three
    years.” See Miss. Code Ann. § 97-3-79 (Rev. 2006). Pursuant to statute, the trial judge
    sentenced Strickland to serve a term of thirty years in the custody of the Mississippi
    Department of Corrections (“MDOC”). Upon finding Strickland to be a habitual offender
    pursuant to Mississippi Code Annotated Section 99-19-81, the trial judge directed that
    Strickland’s thirty-year sentence be served without the benefit of parole or probation.
    Strickland’s “Motion for a Judgment Notwithstanding the Verdict or, in the alternative, a
    New Trial” was subsequently overruled by the circuit court. He then timely filed notice of
    appeal.
    FACTS
    ¶2.     On May 10, 2000, Strickland, Jonathan Burnett, Nellie Harrell, Brandy Todd, and
    Christopher Harris visited the home of Strickland’s brother, George Strickland (“George”).
    As the group was leaving, Strickland testified that George gave Burnett “a pistol that
    belonged to [Burnett’s] cousin to give back to him.” Strickland added that the gun was
    definitely not loaded as “[George] took the bullets out of the gun when he handed it to
    [Burnett].” Thereafter, as the group was riding in Harris’s Ford Focus, Strickland testified
    that:
    [Harrell] started hollering that she wanted bottled beer. . . . [T]he first store we
    come to was the Soco. When we got up to it, there was a police officer sitting
    there. So [Harris] kind of panicked, kept going straight, just made the first
    turn.[1] And we come up to the stop sign, and the door [to Penny Ridge
    Grocery] was open. The lady was coming out, and . . . she said they sell beer
    right there . . . .
    1
    According to Strickland, the group was not planning to rob the Soco but left because
    “there’s five people in the car with the window knocked out . . . that are all drinking. [Harris]
    panicked.”
    2
    ¶3.    Amy Wright was the store clerk at the Penny Ridge Grocery. According to Wright,
    a “little silver car” with five occupants (three men and two women) arrived at the store just
    before dusk and:
    a young lady gets out in a green bikini top and asked me were we closed and
    I told her we closed at 8:00 [p.m.]. And she said, well, we’re just in time. And
    I proceeded to go in the store, and two gentlemen come into the store and go
    to the beer cooler.
    Wright testified that the two individuals 2 remained at the beer cooler for approximately five
    minutes. During that period, Wright “commented to [Strickland and Burnett that] your ride
    just left, and they said they didn’t care.” 3 Thereafter, according to Wright, Strickland and
    Burnett:
    got two six-packs of Bud Light beer in the bottle and started to approach the
    front of the register. And [Burnett] passed money to [Strickland]. And at that
    point knowing that he didn’t look old enough to buy beer and should not have
    given money to another gentleman to purchase it, I asked both gentlemen for
    
    ID. Wright testified that
    when she requested identification, Strickland “came behind the counter
    . . . and got my . . . personal purse. . . . And he took my personal purse and told me he
    guessed that I would give them the beer now.” 4 When Wright began to struggle with
    Strickland for her purse, Burnett reached across the counter, slapped her face, and pulled a
    2
    Wright made an in-court identification of Strickland as one of the men and described
    the other man, later identified as Burnett as being “ very, very young. Teenager in fact. This
    was my opinion.”
    3
    According to Strickland, Harris had merely moved the vehicle “[j]ust right to the side
    where they could use the bathroom.”
    4
    Strickland testified he did not have any identification with him at the time and that
    he “asked to see [Wright’s] ID when she was asking to see mine. And I grabbed her purse
    and put it up there, and I said, I guess you’ll sell us the beer now, right?”
    3
    gun on her.5 According to Wright, the gun “was small, silver in color. I was so close to it
    that I could see that it had a cylinder with bullets in it, and I could see the two bullets on
    either side.” While pointing the gun at Wright, Burnett attempted to open the cash register
    by striking it. Wright testified that Strickland repeatedly directed Burnett in an “[i]rritated,
    angry” tone of voice to “just shoot the bitch.” By contrast, Strickland testified that “I never
    told [Burnett] to shoot [Wright] because there was no bullets in the gun was the main reason.
    Another one is because I wouldn’t have been wanting to see him shoot nobody anyway with
    five people . . . .” 6 Wright was “begging [Burnett] not to shoot me and begging [Strickland]
    to give me my purse back.” Burnett then threw the cash register on the floor and the cash
    box separated from the control console. When the cash-box portion remained closed,
    Strickland instructed Burnett to “take it with us.” (Emphasis added). Strickland and Burnett
    then ran out of the store with one six-pack of beer, the cash-box portion of the cash register,7
    and Wright’s purse.8 Wright immediately called 911 and told the dispatcher that the
    perpetrators were driving a silver vehicle.
    5
    According to Strickland, “I didn’t know that he had the gun on his person. I thought
    it was in the car. I had no idea he was going to do that.”
    6
    Strickland admitted that when Burnett initially pulled the gun he did not tell him to
    put it away. Thereafter, however, he insisted that “I told him to just put it away . . . . And
    he was slamming the cash register. . . . [The gun] was already back wherever it come from
    when he was slamming the cash register.”
    7
    According to Wright, “[a] little over $900” was contained therein.
    8
    According to Wright, her purse contained “[a]ll of my identification, my wallet, my
    cigarettes, a picture of my family that I had been going to mail off. I believe there were
    some bills in there, some mail that I had collected, a hair brush, a camera.”
    4
    ¶4.    At approximately 7:45 p.m., Officer Donnie Elkin of the Columbus Police Department
    received a dispatch regarding an armed robbery at Penny Ridge Grocery. Two to three
    minutes later, Elkin testified that he “passed a smaller silver car that was traveling at a pretty
    good rate of speed and had several occupants. And that’s when I turned around just to check
    and see if it was the vehicle.” Just after Elkin turned his blue lights on, he observed a cash
    register thrown from the driver’s side window.9 According to Elkin:
    [w]hen I noticed that they were not going to yield for my blue lights, I
    immediately hit my sirens and advised my other units that they were not
    yielding. We continued driving toward Alabama on Highway 12. . . . We got
    to about Jess Lyons Road and I had passed the vehicle to slow them down
    because we were traveling at a pretty good rate of speed [approximately 60-70
    miles per hour].
    At Jess Lyons Road, the Ford Focus turned left, and Elkin turned around, continuing pursuit.
    Thereafter, the vehicle turned left again and headed back toward Columbus at approximately
    eighty to ninety miles per hour. Elkin testified that, while in pursuit, the driver took:
    any lane he could find to try to get through . . . down the turn lane. We were
    driving on the wrong side of the road. When we got to about Cooper Auto
    Sales . . . someone threw an object out of the window. . . . Once again, I called
    it in . . . that they had thrown something out the window. . . . [A]nother officer
    went to that area trying to locate what they had thrown while we still continued
    the pursuit.[ 10 ]
    As the vehicle continued toward Columbus, the police placed spikes in the road which
    stopped the vehicle by puncturing the left front tire of Harris’s Ford Focus. Five individuals
    9
    Strickland testified that he threw the cash-box portion of the cash register out of the
    window. Over his radio, Elkin instructed other units to secure the cash register. Minutes
    later, Officer Rhonda Sanders of the Columbus Police Department found the bottom of the
    cash register just off the road.
    10
    Strickland testified that Burnett threw the pistol holster out of the window.
    5
    were in the vehicle: Strickland, Burnett, Harrell, Todd, and the driver, Harris. Deputy Sheriff
    Kevin Petrie of the Lowndes County Sheriff’s Department later processed the vehicle for
    evidence and found a six-pack of bottled Bud Light beer, an envelope addressed to Wright,
    a water bill addressed to Wright’s husband, and a photograph of Wright’s family.11
    ¶5.    On August 18, 2000, Strickland was indicted under Mississippi Code Annotated
    Section 97-3-79 for armed robbery. At his arraignment, Strickland pleaded not guilty, and
    bond was set at $50,000.12 On December 1, 2000, the circuit court entered a “Judgment
    Nisi,” stating:
    [t]his cause came on this day for Trial and the defendant [Strickland] being
    called three times in open Court, came not, judgment is therefore given against
    him/her and Robert Earl Smith, Surety, on his/her Appearance Bond for
    $50,000.00 to be made final unless they show cause against it according to
    law; and the Circuit Clerk is Ordered to issue Scire Facias to [Strickland],
    Principal and Robert Earl Smith, Surety, and returnable on March 1, 2001.
    The aforesaid bond is hereby revoked and a new bond in the amount of None
    is set herein.
    That same day, a “Bench Warrant” for Strickland was issued by the circuit court. On
    November 14, 2001, “Final Judgment” was entered by the circuit court, stating:
    [t]his cause came on for hearing and [Strickland] being called came not, and
    it appearing to the Court that a Judgment Nisi was entered in this cause on
    December 1, 2000, and scire facias having been issued to [Strickland]
    Principal, and Robert Earl Smith, Surety on his/her bond, on the December 1,
    2000, and served on Robert Earl Smith on December 6, 2000 commanding him
    11
    Strickland denied that any contents from the discarded purse were kept intentionally.
    Additionally, Petrie found approximately twenty-five beer cans.
    12
    Strickland admitted at trial that in his initial statements to the Lowndes County
    Sheriff’s Department, he fabricated a story about “black[ing] out” before entering the store
    and not recalling any events which followed, all for the purpose of “trying to get a bond . .
    . .”
    6
    to have [Strickland] at the Next Term of this Court, and [Strickland] appearing
    not, when called at this term, judgment is hereby made final against
    [Strickland], Principal, and Robert Earl Smith Surety on his/her Appearance
    Bond for $50,000.00, and all cost of court incurred herein.
    On February 13, 2002, the circuit court entered an “Order Removing Case Pending
    Apprehension of Defendant.” In March 2003, Strickland was arrested in Madison, Florida,
    on a felony warrant from Lowndes County.13 On June 13, 2003, the circuit court “[o]rdered
    that the Final Judgment previously entered on the bond of [Strickland] and Robert Earl
    Smith, surety, be set aside.”
    ¶6.    On August 24, 2006, the State filed a “Motion to Amend Indictment” to reflect the
    habitual offender status of Strickland pursuant to Mississippi Code Annotated Section 99-19-
    81, and on August 25, 2006, the State filed a “Motion for Bifurcated Sentencing Hearing.”
    On August 28, 2006, the jury trial commenced.14 The following day, the jury found
    Strickland guilty as charged of armed robbery. The jury, however, could not “unanimously
    agree on the proper punishment[,]” specifically, whether Strickland should be sentenced to
    life imprisonment. The circuit court then sentenced Strickland to serve a term of thirty
    years,15 after granting the State’s motion to amend the indictment and have Strickland
    declared a habitual offender.16
    13
    The “Bench Warrant” was formally executed on March 19, 2003.
    14
    The circuit court deferred ruling on the State’s “Motion for Bifurcated Sentencing
    Hearing” pending a jury resolution of Strickland’s guilt.
    15
    The order of the circuit court added that “[t]his sentence shall not be reduced or
    suspended nor shall [Strickland] be eligible for parole or probation.”
    16
    The indictment was amended to include the following language:
    7
    ISSUES
    ¶7.    Strickland raises the following issues:
    (1) Whether the circuit court erred in allowing the State to strike African-
    American jurors off the venire panel.
    (2) Whether the circuit court erred in allowing Strickland’s prior conviction for
    theft of property to be used by the State for impeachment purposes.
    (3) Whether Instruction D-2 was properly refused by the circuit court.
    ANALYSIS
    I.       Whether the circuit court erred in allowing the State to strike
    African-American jurors off the venire panel.
    ¶8.    The State exercised eleven, and Strickland exercised eight, peremptory challenges in
    selecting the twelve jurors and one alternate. The record reveals that seven of the State’s
    peremptory challenges were exercised on African-Americans. Strickland’s counsel then
    stated that “[w]e’re probably going to have to do a Batson[17 ].” The State responded by
    voluntarily offering to provide race-neutral reasons. The trial judge opined none were
    required, as Strickland made no motion. Strickland then moved ore tenus for a Batson
    And further that [Strickland] was previously convicted on February 22, 1988,
    in the Circuit Court of Jefferson County, Alabama . . . of Theft of Property -
    2nd , a felony, and sentenced to serve a term of two (2) years in the Alabama
    Department of Corrections [(“ADOC”)].
    And further that [Strickland] was previously convicted on January 14, 1991,
    in the Circuit Court of Jefferson County, Alabama . . . of Escape - 2nd, a
    felony, and sentenced to serve a term of twelve (12) years in the [ADOC].
    And further that [Strickland] was previously convicted on March 5, 1993, in
    the Circuit Court of Jefferson County, Alabama . . . of Theft of Property - 2nd,
    a felony, and sentenced to serve a term of fifteen (15) years in the [ADOC].
    17
    See Batson v. Kentucky, 
    476 U.S. 79
    , 
    106 S. Ct. 1712
    , 
    90 L. Ed. 2d 69
    (1986).
    8
    hearing on six jurors. At that point, the court offered Strickland an opportunity to make a
    prima facie showing of discriminatory intent to comply with Batson. Strickland offered no
    evidence other than the number of African-Americans struck.                   Strickland freely
    acknowledged that he was Caucasian and that no racial issues were involved in the case.
    Considering the totality of relevant facts before the court, the trial judge found that Strickland
    failed to make “a prima facie case that the State has exercised its peremptory challenges in
    a racial manner to exclude members of any particular class.”
    ¶9.    Strickland argues that the circuit court committed reversible error in failing “to follow
    the proper procedures to insure the State was fairly presenting ‘race-neutral’ reasons for
    striking the . . . jurors.” The State responds that:
    the essence of [Strickland’s] argument is that the court erred in failing to
    require the [S]tate to articulate racially neutral reasons for its strikes against
    black veniremen. This point begs the question inasmuch [as] it is the
    establishment of a prima facie case which triggers the requirement of such
    articulation.
    As such, the State counters that “Strickland has plainly failed to sustain his burden of
    showing that the trial court’s ruling on this issue was against the overwhelming weight of the
    evidence or clearly erroneous.”
    ¶10.   Criminal defendants “have the right to be tried by a jury whose members are selected
    pursuant to non-discriminatory criteria.” 
    Batson, 476 U.S. at 85-86
    . However:
    [t]he Batson doctrine is not concerned with racial, gender, or ethnic balance
    on petit juries, and it does not hold that a party is entitled to a jury composed
    of or including members of [a] cognizable group. Rather, it is concerned
    exclusively with discriminatory intent on the part of the lawyer against whose
    use of his peremptory strikes the objection is interposed.
    9
    Ryals v. State, 
    794 So. 2d 161
    , 164 (Miss. 2001). In meeting “the evidentiary burden placed
    on a criminal defendant who claims that he has been denied equal protection through the
    State’s use of peremptory challenges[,]” 
    Batson, 476 U.S. at 82
    (emphasis added), this Court
    has noted that:
    1. The party objecting to the peremptory challenge must first make a prima
    facie showing that race was the criteria for the exercise of the peremptory
    challenge.
    2. If this initial showing is successful, the party desiring to exercise the
    challenge has the burden to offer a race-neutral explanation for striking the
    potential juror.
    3. The trial court must then determine whether the objecting party has met
    their burden to prove there has been purposeful discrimination in the exercise
    of peremptory challenges.[18 ]
    Carter v. State, 
    799 So. 2d 40
    , 46 (Miss. 2001) (quoting Stewart v. State, 
    662 So. 2d 552
    ,
    557-58 (Miss. 1995)) (emphasis added). See also 
    Batson, 476 U.S. at 93-94
    (a criminal
    defendant “may make out a prima facie case of purposeful discrimination by showing that
    the totality of the relevant facts gives rise to an inference of discriminatory purpose.”). To
    establish the prima facie case, this Court has stated that “a white defendant[19 ] must show that
    the prosecutor has used peremptory challenges on persons of race and that the [facts and]
    circumstances give rise to the inference that the prosecutor used the peremptory challenges
    18
    The circuit court must “make an on-the-record, factual determination, of the merits
    of the reasons cited by the State for its use of peremptory challenges against potential
    jurors.” Hatten v. State, 
    628 So. 2d 294
    , 298 (Miss. 1993).
    19
    Following the United States Supreme Court’s decision in Powers v. Ohio, 
    499 U.S. 400
    , 402, 
    173 L. Ed. 2d 411
    , 
    111 S. Ct. 1364
    (1991), “a white defendant . . . has standing to
    object to the use of peremptory challenges on potential black jurors.” 
    Bush, 585 So. 2d at 1267
    .
    10
    in order to strike minorities.” Bush v. State, 
    585 So. 2d 1262
    , 1267-68 (Miss. 1991)
    (emphasis added). See also 
    Ryals, 794 So. 2d at 166
    (the “totality of the relevant facts” is
    to be considered in determining whether the inference of discriminatory purpose exists)
    (emphasis added); 
    Batson, 476 U.S. at 93
    (“[a]s in any equal protection case, the ‘burden is,
    of course,’ on the defendant who alleges discriminatory selection of the venire ‘to prove the
    existence of purposeful discrimination.’ In deciding if the defendant has carried his burden
    of persuasion, a court must undertake ‘a sensitive inquiry into such circumstantial and direct
    evidence of intent as may be available.’”) (citations omitted) (emphasis added).
    ¶11.   Regarding the review of Batson determinations, this Court has stated that:
    [a] reversal will only occur if the factual findings of the trial judge appear to
    be “clearly erroneous or against the overwhelming weight of the evidence.”
    Tanner [v. State], 
    764 So. 2d 385
    , 393 (Miss. 2000) . . . . “On appellate
    review, the trial court’s determinations under Batson . . . are accorded great
    deference because they are based, in a large part, on credibility.” Coleman v.
    State, 
    697 So. 2d 777
    , 785 (Miss. 1997) . . . . The term “great deference” has
    been defined in the Batson context as meaning an insulation from appellate
    reversal any trial findings which are not clearly erroneous. Lockett v. State,
    517 So. 2d [1346,] 1349 (Miss. 1987).
    Smith v. State, 
    835 So. 2d 927
    , 940 (Miss. 2002) (emphasis added). This deferential
    standard of review reflects “confidence that trial judges experienced in supervising voir dire,
    will be able to decide if the circumstances concerning the prosecutor’s use of peremptory
    challenges creates a prima facie case of discrimination against black jurors.” 
    Batson, 476 U.S. at 97
    .
    ¶12.   The circuit court found that no prima facie case giving rise to an inference of
    purposeful discrimination was established. This Court has scoured the record and has found
    no evidence indicating that the circuit court’s finding was “clearly erroneous or against the
    11
    overwhelming weight of the evidence.” 
    Smith, 835 So. 2d at 940
    (quoting Tanner, 
    764 So. 2d
    at 393). The appellate record is devoid of facts revealing the racial composition of either
    the venire or the ultimately empaneled jury.20 The lone “circumstanc[e] giv[ing] rise to the
    inference that the prosecutor used the peremptory challenges in order to strike minorities[,]”
    
    Bush, 585 So. 2d at 1268
    , was that a larger number of African-Americans, compared to
    Caucasians, were peremptorily stricken by the State. However, this record does not reveal
    whether that number was disproportionate to the racial composition of the venire. “[T]hough
    the sheer number of strikes exercised against a cognizable group of jurors is not itself
    dispositive of our analysis, ‘the relative strength of the prima facie case of purposeful
    discrimination will often influence this inquiry’ into Batson challenges.” Flowers v. State,
    20
    Thus distinguishing the case sub judice from Chisolm v. State, 
    529 So. 2d 630
    (Miss. 1988) and Walker v. State, 
    740 So. 2d 873
    , 880 (Miss. 1999). In Chisolm, this Court
    deferred to the trial court’s determination that a prima facie showing of purposeful
    discrimination existed where the appellate record included the number of African-Americans
    on the empaneled jury. Specifically:
    that Chisolm is a black person and that the jury seated for his trial – including
    one alternate juror – was composed of ten white persons and three black
    persons. The record further reflects that the prosecution exercised twelve
    peremptory challenges, seven of which were used to exclude black persons
    from the jury.
    
    Id. at 632. Ultimately,
    however, this Court affirmed the trial court’s holding “that the
    prosecuting attorney had successfully rebutted Chisolm’s prima facie showing.” 
    Id. at 633. In
    Walker, this Court determined that the trial court erred in finding no prima facie case of
    purposeful racial discrimination existed where the appellate record revealed that “the State
    used seven out of nine peremptory challenges to exclude black persons. The final jury
    resulted in ten whites and two blacks . . . .” 
    Walker, 740 So. 2d at 880
    (emphasis added).
    Moreover, any reliance by the dissent on Thorson v. State, 
    653 So. 2d 876
    (Miss. 1994), is
    misplaced as the appellate record in that case included the number of African-Americans on
    the venire, and the dispositive issue pertained to the applicability of Powers. See 
    id. at 895- 96.
    12
    
    947 So. 2d 910
    , 935 (Miss. 2007) (quoting Sewell v. State, 
    721 So. 2d 129
    , 136 (Miss.
    1998)).21 However, in Ryals, this Court held that:
    [t]he “totality of the relevant facts” do not give an inference of discriminatory
    purpose. The trial judge was shown a single factor, that the State exercised 10
    of its 12 peremptory strikes against women, to support an inference of
    discriminatory intent. This factor, in itself, under the facts of this case, was not
    compelling proof of discriminatory intent, given that women composed one-
    half, rather than a minority, of the venire, and given that the State tendered
    three women. Opposed to this one factor were the factors that nothing about
    the voir dire, nothing about the prosecutors’ conduct, nothing about the
    habitual policies of these prosecutors or any stated policies of the district
    attorney’s office, and nothing about the nature of the case support an inference
    of discriminatory intent.
    
    Ryals, 794 So. 2d at 166
    . Similarly, this Court finds that exercising seven peremptory strikes
    against African-Americans, standing alone, absent any other facts or circumstances related
    to (1) racial composition of the venire, empaneled jury, or community, or other non-exclusive
    factors such as (2) the prosecutor’s conduct, (3) the habitual policies of these prosecutors, (4)
    21
    While not dispositive, the greater the number of strikes exercised against a
    cognizable racial group of jurors, the greater “the relative strength of the prima facie case of
    purposeful discrimination . . . .” 
    Flowers, 947 So. 2d at 935
    (quoting 
    Sewell, 721 So. 2d at 136
    ). In Flowers, however:
    [o]f the six hundred summonses sent out to potential jurors . . . three hundred
    questionnaires were filled out by potential jurors and received by the court in
    response to the summonses. At least 120 potential jurors indicated that they
    were of African-American descent, meaning that at least forty percent of the
    potential jury pool was African-American. This percentage closely tracks the
    racial demographics of Montgomery County, as defense counsel asserted that
    African-American citizens comprise forty-five percent of the county’s
    population. The prosecutor exercised all fifteen of his peremptory strikes on
    African-Americans, and the lone African-American who ultimately sat on
    Flowers’ jury was seated after the State ran out of peremptory challenges.
    
    Id. at 936. The
    totality of circumstances presented in Flowers, when considered in tandem,
    distinguishes it from the case sub judice.
    13
    the stated policies of the district attorney’s office, or (5) the nature of the case itself, see 
    id., fails to establish
    “a prima facie showing that race was the criteria for the exercise of the
    peremptory challenge.” 
    Carter, 799 So. 2d at 46
    . As no evidence was offered to the trial
    court to support Strickland’s claim of a Batson violation, this Court cannot conclude that the
    circuit court clearly erred in denying Strickland’s request for a Batson hearing.
    ¶13.   The dissent advances the proposition that this Court should rule in a factual vacuum,
    by elevating an inference of equivocal value to be the substantial equivalent of a prima facie
    case, without requiring Strickland to provide facts or circumstances to support his argument.
    This Court finds that such a holding would eradicate the requisite “evidentiary burden placed
    on a criminal defendant who claims that he has been denied equal protection through the
    State’s use of peremptory challenges[.]” 
    Batson, 476 U.S. at 82
    . In the case sub judice, a
    prima facie case requires Strickland to produce sufficient evidence to permit the trial judge
    to infer purposeful discrimination. See Tex. Dep’t of Cmty. Affairs v. Burdine, 
    450 U.S. 248
    , 254, n. 7, 
    101 S. Ct. 1089
    , 1094, 
    67 L. Ed. 2d 207
    , 216 (1981) (“[t]he phrase ‘prima
    facie case’ . . . may be used by courts to describe the plaintiff’s burden of producing enough
    evidence to permit the trier of fact to infer the fact at issue.”). The exercise of seven
    peremptory strikes on African-Americans, standing alone, is insufficient for this Court to
    infer the fact at issue, i.e., purposeful discrimination. Moreover, it requires that this Court
    ignore the circuit court’s determination and the great deference to which it is entitled. See
    
    Smith, 835 So. 2d at 940
    ; 
    Batson, 476 U.S. at 97
    . We find insufficient evidence in the
    record to conclude the trial court’s ruling was against the overwhelming weight of the
    evidence or clearly erroneous and, therefore, affirm the trial court as to this issue. Our ruling
    14
    today does not alter or change the threshold for a party to establish a prima facie case of
    purposeful discrimination; it only requires that the party put forth sufficient facts or
    circumstances to meet the threshold itself.
    II.    Whether the circuit court erred in allowing Strickland’s prior
    conviction for theft of property to be used by the State for
    impeachment purposes.
    ¶14.   With the jury out, the State “request[ed] a hearing under Rule 609 of Mississippi
    Rules of Evidence, Peterson v. State [
    518 So. 2d 632
    (Miss. 1987)]. The State intends to,
    with the Court’s permission, use [Strickland’s] prior felony convictions to attack his
    credibility as a witness should he elect to testify.” The State then tendered certified copies
    of Strickland’s three prior felony convictions in the Circuit Court of Jefferson County,
    Alabama.22 Strickland objected, arguing that “[a]ll three of those are over ten years . . . .”
    ¶15.   The State conceded that CC-87-003681-00 was outside the ten-year period and
    inadmissible. While admitting that CC-90-003838-00 was also outside the ten-year period,
    the State maintained that:
    22
    On February 22, 1988, in cause number CC-87-003681-00, Strickland entered a
    guilty plea to felony Theft of Property - 2nd, and was sentenced to serve a term of two years
    in the custody of the ADOC. On January 14, 1991, in cause number CC-90-003838-00,
    Strickland entered a guilty plea to felony Escape - 2nd , and was sentenced to serve a term of
    twelve years in the custody of the ADOC. That sentence, however, was to be served as a
    “‘split sentence’ in that [Strickland] shall serve 30 days in the penitentiary, thereafter shall
    be released and remain on probation for 3 years.” Finally, on March 5, 1993, in cause
    number CC-92-003257-00, Strickland entered a guilty plea to felony Theft of Property - 2nd,
    and was sentenced to serve a term of fifteen years in the custody of the ADOC. However,
    that sentence also provided for being served as a “split sentence” with “1 yea[r] to actually
    serve in a jail type institution . . . the execution of the remainder of said sentence is
    suspended pending [Strickland’s] good behavior on probation for 5 years.”
    15
    this crime happened in May of 2000. [Strickland] was set for trial in November
    of 2000, which he ended up not reporting on his bond. There was a Judgment
    Nisi taken. But for his flight, the State would have been able to bring this case
    to trial [at] a time in which the time period would not have elapsed. . . .
    [Strickland’s] refusal to show up for [c]ourt and failure to appear as required
    by the terms and conditions of his bond is the reason that we are trying this
    case outside the initial term of ten years.
    As to CC-92-003257-00, the State argued that “I think that the way the rule reads, the
    confinement imposed for that conviction of 15 years, [Strickland] is still under that
    confinement even today as we sit.” 23 Additionally, the State maintained that credibility is
    directly at issue because “it’s going to be a believability contest should [Strickland] elect to
    testify between [him] and [Wright].” As such, the State asserted that “when the Peterson
    factors are weighed, the probative value of allowing this particular conviction[24 ] in
    outweighs any prejudicial effect [on Strickland].”
    ¶16.   The circuit court deemed only Strickland’s conviction in CC-92-003257-00 to be
    admissible, finding:
    [w]e have not gotten to . . . 2008. . . . This is within the 15-year period. I am
    going by what the judge says his sentence was. The judgment was a split
    sentence to a term of 15 years. One year to serve, the execution of the
    remainder was suspended pending [Strickland’s] good behavior on probation
    for five. . . . Even after the probation expires, the judge still has the authority
    to revoke the suspension. That is the law in this state.
    The circuit court then declared that:
    I have . . . gone over the Peterson factors; that is, the impeachment value of
    the prior crime, the point in time between the conviction and his subsequent
    23
    Counsel for Strickland responded that “[a]fter five years, he’s no longer under that
    sentence.”
    24
    The subject property was seven twelve-packs of beer.
    16
    history, the similarity between the past crime and the charged crime, the
    importance of his testimony, and the centrality of the credibility issue. I find
    that all of these factors weigh in favor of allowing impeachment with this
    particular crime [CC-92-003257-00] and not the other two . . . .
    Furthermore, the circuit court found this prior conviction to be “relevant and will not be
    excluded because I do find that the probative value is not substantially outweighed by the
    danger of unfair prejudice.”
    ¶17.   Strickland argues that “[t]he lower court based it[s] decision to allow the conviction
    in on the sentence, not the conviction date or the release from confinement, which was only
    a year.” Regarding the Peterson factors, Strickland insists that his prior conviction for theft
    “has little, if any, impeachment value[,]” as to the crime of armed robbery; this prior
    conviction “occurred over 13 years prior to the trial in the instant case[;]” Strickland was the
    only defense witness and, therefore, “[t]he importance of [his] testimony weighs against the
    admissibility of the conviction[;]” and “since theft is not a crime of dishonesty, it has no
    reflection on his credibility.” As such, Strickland maintains that “the lower court[’s]
    evaluation process of the five Peterson factors to the facts of the instant case were in error”
    and, furthermore, that the prejudicial effect of admitting this prior conviction outweighed its
    probative value. The State replies that “Strickland has failed to show that the trial court
    abused its discretion in admitting this conviction.”
    ¶18.   The circuit court’s decision to admit the prior conviction for impeachment is reviewed
    under an abuse-of-discretion standard. See Henderson v. State, 
    641 So. 2d 1184
    , 1186
    (Miss. 1994). Mississippi Rule of Evidence 609 states, in pertinent part, that:
    (a) General Rule. For the purpose of attacking the credibility of a witness,
    17
    (1) evidence that (A) a nonparty witness has been convicted of a crime shall
    be admitted subject to Rule 403, if the crime was punishable by death or
    imprisonment in excess of one year under the law under which the witness was
    convicted, and (B) a party has been convicted of such a crime shall be
    admitted if the court determines that the probative value of admitting this
    evidence outweighs its prejudicial effect to the party; and
    (2) evidence that any witness has been convicted of a crime shall be admitted
    if it involved dishonesty or false statement, regardless of punishment.
    (b) Time Limit. Evidence of a conviction under this rule is not admissible if
    a period of more than ten years has elapsed since the date of the conviction or
    of the release of the witness from the confinement imposed for that conviction,
    whichever is the later date, unless the court determines, in the interests of
    justice, that the probative value of the conviction supported by the specific
    facts and circumstances substantially outweighs its prejudicial effect.
    Miss. R. Evid. 609(a) and (b) (emphasis added). Theft crimes are categorized under
    Mississippi Rule of Evidence 609(a)(1). See Blackman v. State, 
    659 So. 2d 583
    , 585 (Miss.
    1995). “[C]onvictions offered under 609(a)(1) to impeach a party must be analyzed under
    the guidelines set forth in Peterson . . . to determine if the probative value is great enough
    to overcome the presumed prejudicial effect to that party, and findings should be made on
    the record by the judge.” Miss. R. Evid. 609 cmt. The Peterson factors include:
    (1) The impeachment value of the prior crime.
    (2) The point in time of the conviction and the witness’ subsequent history.
    (3) The similarity between the past crime and the charged crime.
    (4) The importance of the defendant’s testimony.
    (5) The centrality of the credibility issue.
    
    Peterson, 518 So. 2d at 636
    .
    18
    ¶19.   The circuit court addressed the fifteen-year “split sentence” in CC-92-003257-00 for
    purposes of Mississippi Rule of Evidence 609(b), and correctly noted that a suspended
    sentence may be revoked by the circuit court. See Johnson v. State, 
    925 So. 2d 86
    , 93 (Miss.
    2006) (quoting Carter v. State, 
    754 So. 2d 1207
    , 1210-11 (Miss. 2000) (Mills, J.,
    dissenting)). However, Mississippi Rule of Evidence 609(b) provides that evidence of a
    conviction under Rule 609(a) “is not admissible if a period of more than ten years has
    elapsed since the date of the conviction or of the release of the witness from the confinement
    imposed for that conviction, whichever is the later date . . . .” Miss. R. Evid. 609(b)
    (emphasis added). The date of conviction in CC-92-003257-00 is certain, i.e., March 5,
    1993. However, release of the witness from confinement is indeterminable from the record
    before us. The “date of the conviction” is outside the ten-year period, but we are uncertain
    as to the date “of release of the witness from the confinement imposed[,]” and whether that
    date is greater or less than ten years from the date of trial, August 28, 2006.
    ¶20.   However, that issue is not outcome-determinative, as Rule 609(b) establishes an
    exception to the ten-year time limit if “the court determines, in the interests of justice, that
    the probative value of the conviction supported by the specific facts and circumstances
    substantially outweighs its prejudicial effect.” Miss. R. Evid. 609(b). Here, the circuit judge
    made such a determination, after the State proffered an “interes[t] of justice” exception based
    upon the premise that the original trial date was November 2000, and would have remained
    so but for Strickland’s flight.25 See Brengettcy v. State, 
    794 So. 2d 987
    , 993 (Miss. 2001)
    25
    Applying the “interes[t] of justice” exception, Strickland’s prior conviction in CC-
    90-003838-00 also would not be time-barred under Mississippi Rule of Evidence 609(b).
    19
    (by analogy, within the context of constitutional speedy-trial claims “[d]elays which are
    attributable to one party count against that party.”); Jenkins v. State, 
    607 So. 2d 1137
    , 1138
    (Miss. 1992) (within the context of constitutional speedy trial claims, delays “attributable to
    the defendant tol[l] the running of time.”). While Strickland’s conviction occurred more than
    ten years before trial, the “interes[t] of justice” exception was available as a result of
    Strickland’s flight.
    ¶21.   After reviewing the trial court’s Peterson analysis, this Court finds no abuse of
    discretion in admitting Strickland’s conviction in CC-92-003257-00 pursuant to Mississippi
    Rule of Evidence 609(a)(1). The circuit court properly made on-the-record findings that all
    of the Peterson factors weighed in favor of admissibility and that the probative value
    outweighed any prejudicial effect. See Miss. R. Evid. 609(a) cmt. Therefore, this Court
    finds that this issue is without merit.
    III.   Whether Instruction D-2 was properly refused by the circuit court.
    ¶22.   Instruction D-2, proposed by Strickland, stated:
    [t]he Court instructs the jury that if you find from the evidence beyond a
    reasonable doubt, that [Strickland] did not commit the crime of armed robbery
    on May 10, 2000 at the Penny Ridge Grocery, but instead you find beyond a
    reasonable doubt that he did feloniously take the personal property of
    [Wright], to wit her purse, in her presence and off her person and against her
    will, by violence to her person or by putting her in fear of some immediate
    injury to her person, you shall find him guilty of the lesser included offense of
    robbery.
    (Emphasis added). The State objected to this instruction, stating “I don’t believe there’s any
    basis in the evidence. The undisputed testimony is that there was a gun that was used, and
    that there was property that was taken after the display of that weapon.” Moreover, the State
    20
    noted that Strickland “is not charged in this indictment with taking [Wright’s] purse. The
    robbery of the purse as I see it as set forth in this instruction is not necessarily a lesser
    included offense. It is a separate crime. He’s charged in the indictment from taking a cash
    register containing money and beer.” Strickland maintained that “he did take the purse
    admittedly and leave with it. . . . Therefore, that is a strong armed robbery. He had no
    weapon and he never made any threats by her own testimony. He just took her purse and ran
    with it. Now, it’s going to be a jury question as to whether or not he was actually involved
    in the armed robbery or not.” The circuit court refused Instruction D-2, finding that “[t]here
    is no evidence in the record that will justify the granting of a lesser included offense[,]” and
    stating that “[b]y [Strickland’s] own testimony, he stated that he told [Burnett] to just take
    it with you. That statement came after the display of the firearm. If a defendant participated
    in any regard even in the asp[o]r[t]ation of the property . . . it would be armed robbery and
    cannot be robbery.”
    ¶23.   Strickland now asserts that:
    the lower court denied [his] instruction that represented a major part of his
    defense, a defense that consisted of his involvement in the alleged armed
    robbery was at wors[t] robbery when he took Wright’s purse from the scene
    and that he had no direct involvement in the actions of Burnett who committed
    the armed robbery without Strickland’s help or consent.
    Strickland argues that denial of the lesser-included offense instruction constituted reversible
    error because he “was not acting in common purpose with Burnett in the armed robbery[.]”
    The State responds that:
    [t]aken in the light most favorable to the defense, the evidence shows that a
    deadly weapon was displayed and that [Strickland] participated in the robbery.
    As the trial court observed, Strickland’s participation in the crime made him
    21
    a principal, regardless of his protestation that he did not know the armed
    robbery was to occur. . . . Accordingly, the lesser-included instruction was
    properly refused.
    ¶24.   The standard of review for the grant or denial of jury instructions has been set forth
    by this Court, as follows:
    [j]ury instructions are to be read together and taken as a whole with no one
    instruction taken out of context. A defendant is entitled to have jury
    instructions given which present his theory of the case; however, this
    entitlement is limited in that the court may refuse an instruction which
    incorrectly states the law, is covered fairly elsewhere in the instructions, or is
    without foundation in the evidence.
    Chandler v. State, 
    946 So. 2d 355
    , 360 (Miss. 2006) (quoting Ladnier v. State, 
    878 So. 2d 926
    , 931 (Miss. 2004)) (emphasis added). Regarding lesser-included offense instructions,
    this Court has stated that they:
    should be given if there is an evidentiary basis in the record that would permit
    a jury rationally to find the defendant guilty of the lesser offense and to acquit
    him of the greater offense. Welch v. State, 
    566 So. 2d 680
    , 684 (Miss. 1990).
    In reviewing the propriety of such an instruction, we have stated:
    A lesser-included offense instruction should be granted unless
    the trial judge and ultimately this Court can say, taking the
    evidence in the light most favorable to the accused and
    considering all the reasonable inferences which may be drawn
    in favor of the accused from the evidence, that no reasonable
    jury could find the defendant guilty of the lesser-included
    offense (conversely, not guilty of at least one element of the
    principal charge).
    McGowan v. State, 
    541 So. 2d 1027
    , 1028 (Miss. 1989). However, this Court
    has repeatedly held that a lesser-included offense instruction should not be
    indiscriminately granted, but rather should be submitted to the jury only where
    there is an evidentiary basis in the record. Lee v. State, 
    469 So. 2d 1225
    ,
    1230 (Miss. 1985).
    22
    
    Chandler, 946 So. 2d at 360-61
    (quoting Sanders v. State, 
    781 So. 2d 114
    , 119 (Miss. 2001))
    (emphasis added). “A defendant is entitled to present their theory of the case to the jury as
    long as there is some evidentiary basis, even if the evidence is insufficient or of doubtful
    credibility, ‘and even though the sole testimony in support of the defense is the defendant’s
    own testimony.’” Craig v. State, 
    660 So. 2d 1298
    , 1301 (Miss. 1995) (quoting 
    Welch, 566 So. 2d at 684
    ). However, a lesser-included offense instruction may not “be based purely on
    speculation or surmise.” Wilson v. State, 
    639 So. 2d 1326
    , 1329 (Miss. 1994).
    ¶25.     “Participation in an armed robbery is sufficient to make one a principal in the crime
    regardless of whether that participant was the person holding the weapon.” Harrington v.
    State, 
    859 So. 2d 1054
    , 1057 (Miss. Ct. App. 2003) (citing Moore v. State, 
    493 So. 2d 1295-
    98 (Miss. 1986)). See also Smothers v. State, 
    761 So. 2d 887
    , 890 (Miss. Ct. App. 2000).
    As the circuit court found, Strickland admitted to instructing Burnett to take the cash box
    portion of the cash register after the pistol was threateningly displayed toward Wright. Such
    participation rendered Strickland a principal in the armed robbery. See Harrington, 
    859 So. 2d
    at 1057. As Strickland admitted to this involvement, there is no “evidentiary basis in the
    record[,]” 
    Chandler, 946 So. 2d at 360-61
    (quoting 
    Sanders, 781 So. 2d at 119
    ), for the
    lesser-included offense instruction.26 Given the absence of a “foundation in the evidence”
    for the lesser-included instruction, 
    Chandler, 946 So. 2d at 360
    , this Court concludes that the
    circuit court did not err in denying it. As such, this Court finds that this issue is without
    merit.
    26
    This Court also notes that the indictment does not charge Strickland with the
    robbery of Wright’s purse.
    23
    CONCLUSION
    ¶26.   Based upon the aforementioned analysis, this Court affirms the final judgment and
    sentence of the Circuit Court of Lowndes County as to Strickland.
    ¶27. CONVICTION OF ARMED ROBBERY AS A HABITUAL OFFENDER AND
    SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI
    DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL NOT
    BE REDUCED OR SUSPENDED, NOR SHALL THE APPELLANT BE ELIGIBLE
    FOR PAROLE OR PROBATION.
    SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND
    LAMAR, JJ., CONCUR. DIAZ, P.J., CONCURS IN PART AND DISSENTS IN PART
    WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES. J.
    DIAZ, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING
    IN PART:
    ¶28.   While I agree that the trial court did not commit reversible error in allowing
    Strickland’s prior conviction to be admitted for impeachment purposes or in refusing his
    lesser-included-offense instruction, I reject the majority’s finding that the defendant did not
    establish a prima facie case of racial discrimination. The majority clearly errs by not
    remanding this case for a Batson hearing.
    ¶29.   In order to make a prima facie case of discrimination in the selection of a petit jury,
    “a white defendant must show . . . that the circumstances give rise to the inference that the
    prosecutor used the peremptory challenges in order to strike minorities.” Bush v. State, 
    585 So. 2d 1262
    , 1267-68 (Miss. 1991); see Puckett v. State, 
    788 So. 2d 752
    , 757 (Miss. 2001)
    (acknowledging that the holding in Powers v. Ohio, 
    499 U.S. 400
    , 
    111 S. Ct. 1364
    , 
    113 L. Ed. 2d 411
    (1991), eliminated the first two Batson factors). Thus, “the pivotal question is
    whether the opponent of the strike has met the burden of showing that [the] proponent has
    24
    engaged in a pattern of strikes based on race or gender, or in other words ‘the totality of the
    relevant facts gives rise to an inference of discriminatory purpose.’” Randall v. State, 
    716 So. 2d 584
    , 587 (Miss. 1998) (quoting Batson v. Kentucky, 
    476 U.S. 79
    , 94, 
    106 S. Ct. 1712
    ,
    1721, 
    90 L. Ed. 2d 69
    (1986)).
    ¶30.   Strickland established a prima facie case of purposeful racial discrimination in the
    State’s exercise of its peremptory challenges and was thus entitled to a Batson hearing. He
    established his prima facie case by showing that the State used seven of its eleven
    peremptory challenges, or 63.6%, against African-Americans.27 Striking seven African-
    Americans, as opposed to only four whites, constitutes “a pattern of strikes based on race” 28
    and “gives rise to an inference of discriminatory purpose.” See Chisolm v. State, 
    529 So. 2d 630
    , 632 (Miss. 1988); Thorson v. State, 
    653 So. 2d 876
    , 895-96 (Miss. 1994).
    ¶31.   In Chisolm this Court held that the defendant had made a prima facie case based on
    the State’s use of seven of its twelve peremptory challenges against African-Americans. 
    Id. at 632. Indeed,
    the Court found the point virtually inarguable: “Quite apparently, [the
    defendant] made a prima facie showing meeting the Batson criteria.” 
    Id. (emphasis added). The
    majority attempts to distinguish Chisolm from the present case on the ground that “the
    27
    The majority inexplicably claims that Strickland offered no evidence to the trial
    court of a Batson violation. The number of strikes exercised by the State against African-
    American venirepersons certainly constitutes evidence of discrimination.
    28
    The majority apparently does not regard the use of seven out of eleven challenges
    against African-Americans as a “pattern.” Otherwise, its determination that the State’s use
    of peremptory challenges in this case, “standing alone,” is insufficient to establish a prima
    facie case conflicts with Batson. In Batson the Supreme Court made clear that a pattern of
    strikes can be sufficient by itself to establish a prima facie case: “[A] ‘pattern’ of strikes
    against black jurors included in the particular venire might give rise to an inference of
    discrimination.” 
    Batson, 476 U.S. at 97
    , 106 S.Ct. at 1723 .
    25
    appellate record [in Chisolm] included the number of African-Americans on the empaneled
    jury.” This attempt fails for two reasons.
    ¶32.   First, this Court has never required a party making a Batson challenge to note the
    racial composition of the jury or the venire in order to establish a prima facie case. Although
    the racial composition of the jury is relevant to a determination of whether the moving party
    has made a prima facie case of discrimination, it is not an essential part of a Batson
    challenge:
    The Batson doctrine is not concerned with racial, gender, or ethnic balance on
    petit juries, and it does not hold that a party is entitled to a jury composed of
    or including members of cognizable [sic] group. Rather, it is concerned
    exclusively with discriminatory intent on the part of the lawyer against whose
    use of his peremptory strikes the objection is interposed.
    Ryals v. State, 
    794 So. 2d 161
    , 164 (Miss. 2001) (emphasis in original) (citations omitted).
    Accordingly, the fact that Strickland’s attorney failed to note the racial composition of the
    jury for the record does not make the present case materially different from Chisolm and
    should not be held to preclude Strickland from establishing a prima facie case of
    discrimination.
    ¶33.   Second, although the record in Chisolm reflected that the jury was composed of three
    African-Americans and ten whites, the record did not indicate what the racial composition
    of the venire was. The racial composition of the jury, alone, is meaningless if the racial
    composition of the venire is not known. As the majority recognizes, unless the racial
    composition of the venire is known, there is no way of determining whether the number of
    strikes exercised against African-Americans was disproportionate to the number of African-
    Americans in the venire or whether the percentage of African-Americans who sat on the jury
    26
    was significantly lower than the percentage in the venire. Therefore, Chisolm is not
    distinguishable from the present case because the only statistic probative of discrimination
    before the Court in Chisolm was the number of strikes (seven) used against African-
    Americans.
    ¶34.   In Thorson this Court held that the defendant should have been granted a Batson
    hearing because the State exercised seven peremptory challenges against African-Americans.
    
    Id., 653 So. 2d at
    896. The majority argues that Thorson is distinguishable because “the
    appellate record [in Thorson] included the number of African-Americans on the venire.” As
    stated above, this Court has never made providing the racial composition of the venire a
    prerequisite to the establishment of a prima facie Batson claim. Thus, the absence from the
    record of any indication of the racial composition of the venire does not distinguish this case
    from Thorson. Moreover, even though the record does not reflect how many African-
    Americans were included on the venire, the percentage of the population of the county from
    which the venire was drawn that is African-American is known and can serve as a reliable
    estimate of the number of African-Americans in the venire. See Walker v. State, 
    740 So. 2d 873
    , 880 (Miss. 1999); U.S. v. Alvarado, 
    923 F.2d 253
    , 255-56 (2nd Cir. 1991) (“We are not
    informed of the minority percentage of the venire in this case, but we may accept as a
    surrogate for that figure the minority percentage of the population of the Eastern District,
    from which the venire was drawn.”).
    ¶35.   In Walker, although the racial composition of the venire was not known, this Court
    took judicial notice of the fact that the county from which the venire was drawn was 50%
    African-American and used that as an indication of the percentage of African-Americans in
    27
    the venire. 
    Id. at 880. In
    light of the fact that around half of the venire was composed of
    African-Americans, this Court held that the State’s use of seven of nine peremptory strikes
    against African-Americans and the seating of only two African-Americans on the jury gave
    rise to an inference of discrimination. 
    Id. In the present
    case, the venire was drawn from
    Lowndes County. According to the 2000 U.S. Census, Lowndes County is 41.9% African-
    American. The State’s challenge rate against African-Americans was 63.6% (seven of
    eleven). Thus, the challenge rate was almost 22% higher than the likely percentage of the
    venire composed of African-Americans. Such a significant statistical disparity gives rise to
    an inference of discrimination and strongly supports a prima facie case under Batson.29
    Accordingly, the trial court’s finding that Strickland did not make a prima facie case was
    clearly erroneous and must be reversed. Lockett v. State, 
    517 So. 2d 1346
    , 1349 (Miss.
    1987).
    ¶36.     The majority concludes “that exercising seven [of eleven] peremptory strikes against
    African-Americans, standing alone, . . . fails to establish” a prima facie case.30 The only case
    29
    Other courts have held that parties have made out prima facie cases when
    comparable statistical disparities were involved. Turner v. Marshall, 
    63 F.3d 807
    , 813 (9th
    Cir. 1995), overruled on other grounds by Tolbert v. Page, 
    182 F.3d 677
    (9 th Cir. 1999) (56%
    challenge rate against African-Americans in district with 30% African-American population);
    
    Alvarado, 923 F.2d at 256
    (57% challenge rate against minorities in district with 29%
    minority population). Furthermore, other courts have held that challenge rates against
    minorities comparable to the one in this case (seven of eleven) raise an inference of
    discrimination. Harrison v. Ryan, 
    909 F.2d 84
    , 87 (3rd Cir. 1990) (six of eight); People v.
    Jenkins, 
    554 N.E.2d 47
    , 50 (N.Y. 1990) (seven of ten); Lewis v. State, 
    775 S.W.2d 13
    , 15
    (Tex. Ct. App. 1989) (seven of ten); People v. White, 
    669 N.Y.S.2d 503
    , 504-05 (N.Y. Sup.
    Ct. 1998) (seven of eleven).
    30
    The majority cites Flowers v. State, 
    947 So. 2d 910
    (Miss. 2007), as authority for
    this conclusion. However, in Flowers this Court was not confronted with the question of
    whether the defendant established a prima facie case, but whether the trial court erred in
    28
    the majority cites that supports its conclusion is Ryals v. State, 
    794 So. 2d 161
    (Miss. 2001).
    I believe Ryals was wrongly decided insofar as it impliedly overruled Chisolm and Thorson
    by holding that the State’s use of ten out of twelve strikes against women did not give rise
    to an inference of discrimination. 
    Id. at 166. Using
    ten out of twelve strikes against a
    cognizable group constitutes a pattern that should allow any party under any circumstances
    to establish a prima facie case of discrimination under Batson. Therefore, in my view, Ryals
    should not guide the Court’s decision in the present case and should be partly overruled.
    ¶37.   Making out a prima facie case of purposeful discrimination should not be very
    difficult for any party. The United States Supreme Court has recently stated that the burden
    of establishing a prima facie case under Batson is not “onerous.” Johnson v. California, 
    545 U.S. 162
    , 170, 
    125 S. Ct. 2410
    , 2417, 
    162 L. Ed. 2d 129
    (2005). One court has described the
    burden of establishing a prima facie case of discrimination as “minimal.” Overton v.
    Newton, 
    295 F.3d 270
    , 279 n.10 (2nd Cir. 2002). I believe that this Court has established
    too high a threshold for parties to make a prima facie showing under Batson. We have
    increased the burden of establishing a prima facie case to the point where that burden is
    “onerous” in certain circumstances.31
    denying the defendant’s Batson claim. See 
    id. at 917-18 .
    The “analysis” in which this Court
    was engaged was not an analysis of whether the defendant made a prima facie case, but
    whether he satisfied the third prong of Batson. Thus, Flowers provides no support for the
    majority’s position.
    31
    The holding in this case will also, I fear, tie the hands of trial judges, in that they will
    now not be able to infer discrimination and grant a Batson hearing based solely on the
    proponent’s use of seven out of eleven challenges (or a comparable percentage) against a
    protected group.
    29
    ¶38.   In many circumstances it is virtually impossible to produce evidence of purposeful
    discrimination other than the number of strikes exercised against a protected group. See U.S.
    v. Casper, 
    956 F.2d 416
    , 419 (3rd Cir. 1992) (“There will seldom be much direct evidence
    of discriminatory intent.”); Bogan v. State, 
    811 So. 2d 286
    , 288 (Miss. Ct. App. 2001)
    (“Discrimination is seldom expressed in direct terms. It is instead generally expressed
    insidiously.”). Sometimes the proponent of a peremptory challenge is able to discriminate
    against a racial group without providing a basis for inferring discrimination other than the
    fact that several members of that group were excluded from the jury. As the Supreme Court
    observed in Batson, “[P]eremptory challenges constitute a jury selection practice that permits
    those to discriminate who are of a mind to discriminate.” 
    Batson, 476 U.S. at 96
    , 106 S.Ct.
    at 1723 (internal quotation marks and citation omitted). If parties bringing Batson claims
    cannot rely on the fact that a clear majority of the proponent’s challenges were used against
    a protected group in order to establish a prima facie case, then many parties will be denied
    a Batson hearing, and many discriminatory challenges will never be exposed.32
    ¶39.   The majority’s holding not only inadequately safeguards a defendant’s right to be tried
    by a jury selected without any discrimination involved, but also infringes the right of
    venirepersons under the Equal Protection Clause to not be excluded from jury service
    32
    The majority’s assertion that I advocate that this Court “rule in a factual vacuum”
    and not require parties to “provide facts and circumstances to support [their] argument” of
    a Batson violation is absurd. Of course parties have to bring forward some evidence of
    discrimination in order to establish a prima facie case. No party should be granted a Batson
    hearing unless he or she points to something that would suggest that peremptory strikes were
    used to purposefully discriminate against a protected group. I simply disagree with the
    majority that the evidence offered by Strickland in support of his Batson motion was
    insufficient to establish a prima facie case of discrimination.
    30
    because of their race. 
    Batson, 476 U.S. at 87
    , 106 S.Ct. at 1718 (citations omitted) (“[B]y
    denying a person participation in jury service on account of his race, the State
    unconstitutionally discriminate[s] against the excluded juror.”). Morever, the negative
    impact of today’s holding will be felt by the public as well: “The harm from discriminatory
    jury selection extends beyond that inflicted on the defendant and the excluded juror to touch
    the entire community. Selection procedures that purposefully exclude . . . persons [on
    account of their race] from juries undermine public confidence in the fairness of our system
    of justice.” 
    Id. (citations omitted). ¶40.
      I would hold that the trial court’s determination that Strickland did not make a prima
    facie case of purposeful discrimination was clearly erroneous and would remand this case
    for a Batson hearing. Therefore, I respectfully concur in part and dissent in part.
    GRAVES, J., JOINS THIS OPINION.
    31