In the

Supreme Court of the United States

CURTIS GIOVANNI FLOWERS, PETITIONER

v.

STATE OF MISSISSIPPI, RESPONDENT

 

 

BRIEF FOR RESPONDENT

---------+---------

STATEMENT OF THE CASE

This case arises from the July 16, 1996, execution style murders of Bertha Tardy, Robert Golden, Derrick Stewart and Carmen Rigby, at the Tardy Furniture store in the city of Winona, Montgomery County, Mississippi. In 1997, Petitioner, Curtis Flowers, was indicted for the capital murders of Tardy, Golden, Stewart and Rigby, with the underlying felony of robbery.

On June 4, 2010,jury selection began in the Montgomery County Circuit Court, the Honorable Joseph A. Loper, Jr., presiding. On June 8, 2010, Petitioner renewed his motion to bar imposition of the death penalty in this case, on the basis of racial discrimination by the State and vindictiveness by the prosecutor.

After jury selection and trial, on June 18,2010, the jury returned verdicts finding Flowers guilty of the capital murders of Tardy, Rigby, Golden and Stewart. That same day the Circuit Court proceeded into the sentencing phase of the trial. On June 19, 2010, the jury returned the following:

We, the jury, unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the capital murder:

o   That the defendant actually killed Bertha Tardy.

o   That the defendant attempted to kill Bertha Tardy.

o   That the defendant intended the killing of Bertha Tardy.

o   That the defendant contemplated that lethal force would be employed.

We, the jury, unanimously find that the aggravating circumstances of:

o   The defendant knowingly created a great risk of death to many persons

o   Capital offenses were committed while the defendant was engaged in the commission of armed robbery for pecuniary gain

o   Capital offenses were committed for the purpose of avoiding or preventing lawful arrest or effecting an escape from custody exists beyond a reasonable doubt and is sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances, and we further find unanimously that the defendant should suffer death.

Barron N. Davis Foreman of the Jury

The jury made the same findings and returned the same judgment with respect to the other victims Rigby, Golden and Stewart.

Of primary significance in this case is the assertion by Flowers that:

The jury selection process, the composition of the venire and the jury seated, and pervasive racial and other bias surrounding this matter violated Flowers' fundamental Constitutional rights protected by the Sixth and Fourteenth Amendments.

The lower court subsequently affirmed Flowers' convictions and death sentence. The Mississippi Supreme Court issued an opinion affirming the trial court's holding. From that decision, Flowers seeks relief with this Court.

---------+---------

SUMMARY OF THE ARGUMENT

In the case sub judice, the State did not engage in racial discrimination during jury selection; nor were Petitioner's constitutional rights violated as the result of racial bias.

1. Peremptory strikes challenged on Batson v. Kentucky  (1986) grounds proceed as follows. As an initial matter, a defendant must establish a prima facie case of discrimination in the selection of jury members. Once a prima facie case is established, the State then bears the burden of providing racially neutral reasons for the challenged strikes. If the State gives racially neutral explanations, the defendant is allowed to rebut those explanations; if the defendant fails to provide rebuttal, the trial judge must then base his decision on those reasons given by the State. As part of that decisional process, a comparative analysis as it relates to the contested perspective jurors should be performed and was done here.

At the conclusion of that analysis, the trial court makes factual findings regarding the validity of the strikes. This Court will not disturb these findings unless they are clearly erroneous. In considering such claims, the Court gives great deference to the fact finder's determination as to the validity of a strike.

2. Here, a special venire was called; approximately six hundred individuals were called for voir dire on the first day of Petitioner's trial. Jury selection comprised thirteen hundred twenty-six (1326) pages of trial record; defense counsel asserted a Batson challenge after the State used a third peremptory strike against an African-American. The trial court found that the use of five out of six peremptory challenges against African-American jurors was sufficient to raise a prima facie claim of discrimination under Batson.

The State used five peremptory strikes of African-American jurors and provided a valid race-neutral reason in support of each. Juror 14, Carolyn Wright, was sued by Tardy Furniture after the murders. Wright also worked with Flowers' father, Archie. Juror 44, Tashia Cunningham, stated in her jury questionnaire that "she would not consider death or life." Cunningham was then "back and forth in questioning on what her opinion was on the death penalty," so much so that the State "could not keep her." Cunningham also worked with Flowers' sister, Sherita Baskin, on an assembly line. Cunningham stated that she "worked on the complete opposite end of the line" from Baskin, however, Cunningham's HR representative testified during voir dire that Cunningham and Baskin worked "right next to" each other "practically every day."

Juror 45, Edith Burnside, stated that Flowers was ''very good friends with both of her sons." Ms. Burnside also was sued by Tardy Furniture. Finally, Ms. Burnside "at one point said she could not judge." Ms. Burnside stated the "fact that she knew the Defendant so well, he had visited in her home, and was such close friends with her sons might affect her decision in this case." Juror 53, Flancie Jones, was related to Flowers. "She admitted that she was related, she was cousin of the Defendant's sister." Jones also was approximately thirty minutes late for court on two, separate occasions. Moreover, Ms. Jones was ''back and forth all over the place on her opinion about the death penalty."  She stated during voir dire that she was in favor of the death penalty; on her jury questionnaire she stated she was strongly against the death penalty. When asked about that inconsistency, Jones admitted to lying on the questionnaire. Finally, Juror 62, Diane Copper, worked with Flowers' father. She also worked with Flowers' sister at a shoe store. Moreover, she stated "that she leaned toward favoring Flowers' side of the case."

3. As will be shown herein, the State's explanations were race-neutral and were not the product of pretext. Petitioner's claims that the State engaged in disparate treatment tendering white jurors who had the same characteristics as black jurors are wholly unsupported by the record. The trial court's finding that Petitioner's Batson claims were devoid of legal merit was not error. Thus, the Mississippi Supreme Court did not err in its application of Batson to the case sub judice and did not err in affirming the trial court's holding. The Petitioner's claims to the contrary should be denied.

4. The record clearly shows these venire members were struck based on valid race-neutral reasons that were not the product of pretext. The record also supports the Mississippi Supreme Court's holding, affirming the trial court's finding that there was no disparate treatment in the State's actions, and that Petitioner failed to adequately rebut the legally accepted race-neutral reasons for striking these venire members. A review of the record with deference to the trial court's determination of these race-neutral reasons results in but one determination, that there were no Batson violations in the case sub judice. Thus, the Mississippi Supreme Court did not err in its application of Batson.

The Decision Of The Mississippi Supreme Court On The Issue Of Petitioner's Batson Claims Is Consistent With This Court's Holding In Batson And Is Thus Not A Decision Which Is Clearly Erroneous

The Court granted certiorari on the limited question of whether the Mississippi Supreme Court erred in how it applied Batson. In an attempt to establish Batson error, where there is none, the Petitioner argues that the "Mississippi Supreme Court failed to consider an important indicium of discriminatory intent and failed to evaluate the cumulative evidence of racial discrimination." However, the crux of Petitioner's efforts rests on what transpired in the preceding five trials in this case, with particular emphasis on what transpired in Flowers II and Flowers III.

In that vein, the Petitioner avers that the Mississippi Supreme Court erred by failing to mention what transpired in Flowers' third trial with regard to Batson violations and to assign that trial any weight in the assessment of his current Batson claims under review. Following this assignment of error, the Petitioner confesses that the post-GVR Flowers VI majority acknowledged the historical fact of the district attorney's past discrimination. In short, the Petitioner, on one hand, argues the Mississippi Supreme Court failed to consider past discrimination but on the other hand, admits the court considered past discrimination. To be clear, Petitioner's assertion that both the trial court and court below failed to take into account the events of Flowers' second and third trials is simply untrue and is an assertion unsupported by both the record and the Mississippi Supreme Court's opinion on the matter.

Flowers avers that the court below failed to consider the cumulative evidence of discrimination. The Petitioner concludes this argument saying there exists "abundant evidence which supports an inference of purposeful discrimination." The State Respondent disagrees and submits the record supports the decision of the Mississippi Supreme Court on this matter and does not constitute a decision which is clearly erroneous nor does it conflict with the Court's holding in Batson. Petitioner's claims were properly adjudicated pursuant to Batson. There are no errors or near errors to cumulate. Thus, he is entitled to no relief on his claims.

As the Court held, "Batson, of course, explicitly stated that the Petitioner ultimately carries the 'burden of persuasion' to prove the existence of purposeful discrimination. Flowers has not met his burden of persuasion in this regard.

Batson requires a three-step process for adjudicating claims of racial discrimination in jury selection and that process was followed in the case at bar. A defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Batson's third step, which is implicated in the case sub judice, hinges on the factual findings of the court below, findings which this Court gives due deference unless they are clearly erroneous.

Again, the Court accords great deference to the trial court in determining whether the offered explanation under the unique circumstances of the case is truly a race-neutral reason. As a result, the Court will not reverse factual findings on this issue unless they appear clearly erroneous or against the overwhelming weight of the evidence. One of the reasons for this is because the demeanor of the attorney using the strike is often the best evidence on the issue of race-neutrality. A finding of discrimination thus largely turns on credibility.

Deference then insulates the trial court from appellate reversal absent findings which are clearly erroneous. As noted, once a prima facie showing has been established, the State bears the burden of providing a race-neutral explanation for the challenged strike. The State's explanations need not rise to the level of justification as required for a challenge for cause. The issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral."

As the Court pointed out in Batson, there are any number of bases on which a prosecutor reasonably may believe that it is desirable to strike a juror who is not excusable for cause. The State's reasons for a strike need not be persuasive, or even plausible; so long as the reasons are not inherently discriminatory, they will be deemed race-neutral. That said, the State, in demonstrating the strike to be devoid of a racially discriminatory purpose, must provide a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges which the State clearly did in this case. It is then the opponent of the strike who bears the burden of rebutting that race-neutral reason, by arguing disparate treatment and pretext. Disparate treatment can certainly be a potential identifier of pretext. However, that alone is by no means determinative, especially in a case where, as here, additional questions were asked of black venire members, due to their responses during voir dire. Where, as here, the State demonstrated differences in the jurors' characteristics, there can be no disparate treatment shown. Again, once neutral reasons are offered and rebuttal is either provided or not, the trial court is then vested with substantial discretion in assessing whether facially neutral reasons for peremptory challenges to potential jurors are actually serving to mask hidden motivations in shaping a jury. Whether facially neutral reasons for peremptory challenges are accurate statements or pretext is a decision left solely to the discretion of the trial court.

Batson originally defined the three-step analysis required in a jury-discrimination challenge, but did not articulate a specific means of accomplishing the third step. Rather, Batson held only that the trial court, once race-neutral reasons are articulated after a finding of prima facie discrimination, must determine if the defendant has established purposeful discrimination.

The Mississippi Supreme Court Committed No Error In Its Application Of Batson To Petitioner's Claims Of Racial Discrimination In Jury Selection

Batson requires a three-step process for adjudicating claims of racial discrimination in jury selection. A defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Batson's third step, which is implicated in the case sub judice, hinges on the factual findings of the court below, findings which this Court gives due deference unless they are clearly erroneous. The Mississippi Supreme Court's holding that the State did not engage in purposeful racial discrimination during jury selection and that Flowers' rights flowing from Batson were in no way violated, was not clearly erroneous. The record clearly supports that determination and thus, Petitioner's Batson claims must fail.

When voir dire began on June 7, 2010, the venire was comprised of sixty-seven (67) African-Americans and eighty-nine (89) whites. On June 10, 2010, after conducting group and individual voir dire and excusing members for cause, eighteen (18) prospective African-American jurors remained at the beginning of the peremptory strike phase. The State exercised five (5) strikes against the remaining pool of nineteen African-American jurors. The Petitioner mischaracterizes the numbers with regard to the prosecution's strikes as the district attorney struck five (5) of the available eighteen (18) African-American jurors remaining, as opposed to five (5) out of six (6), as the Petitioner suggests.

In affirming the trial court, the Mississippi Supreme Court distinguished the case at bar from the Court's holding in Foster, noting that "Foster hinged on several apparent misrepresentations made by the prosecution at trial, rather than a prosecutor's history of adjudicated Batson violations. At the outset, the State Respondent submits there are no such "smoking guns" with regard to evidence of racial animus, as was the case in Foster. Here there are no questionnaires, no juror notes and no district attorney files or any other tangible indicia of discriminatory intent, as was the case in Foster.

Peremptory challenges, since their inception, have been utilized so both the accused and the State may eliminate persons thought to be inclined against their interests, which is precisely how the traditional peremptory-challenge system operates. Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of eliminating extremes of partiality on both sides, thereby assuring the selection of a qualified and unbiased jury. The Petitioner, however, would seek to eliminate peremptory challenges altogether, at least, where the prosecution has committed any Batson violation in the past.

The Petitioner's refrain at trial became a familiar one. Flowers argued that since the prosecuting attorney had been found to have committed a Batson violation in Petitioner's third trial, that by extension, was enough to automatically justify prohibiting the prosecutor from exercising peremptory strikes in his latest trial. Indeed, the Petitioner filed a motion to that effect. The trial court properly denied the motion noting there was no precedent in support of such a request. The notion that a past Batson violation warrants relief automatically, in a subsequent trial, is one that is not supported by the precedent of this Court. That however, is the gist of Petitioner's arguments that District Attorney Doug Evans should not have been allowed to exercise any peremptory strikes because in Flowers' third trial, he was determined to have committed a Batson violation. Petitioner cites to no relevant authority in support of this proposition, as there is none. The State Respondent submits the Petitioner misapprehends Batson and its progeny.

The Petitioner's relief from the Batson violation which occurred in his third trial was to obtain a new trial. Having availed himself of that relief, he cannot now obtain the same relief in his present case, based on what happened then. Rather, any potential relief must be confined to the events of this, his most recent conviction and sentence. Nevertheless, that is precisely what Flowers asks this Court to do, to resolve his Batson violation in his favor, based on what happened in his third trial. The Mississippi Supreme Court declined to extend him that courtesy and so should this Court. Batson simply does not support such a conclusion, that past events categorically dictate present action and are dispositive. The Court has held that those past events should however, be considered, as they bear upon the issue. Indeed, that is the precise procedure which occurred here. Both the trial court and the Mississippi Supreme Court took those past events into consideration in their respective adjudications of the Petitioner's Batson claims.

As the Court held in Foster, "in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted." Certainly, any prior history of a Batson violation in a previous trial in the same case, by the very same district attorney, would "bear upon the issue of racial animosity" and is a circumstance to be considered, which is precisely what happened in this case. District Attorney Evans' prior history of Batson violations was clearly considered by the trial court and the Mississippi Supreme Court."

In so doing, the Mississippi Supreme Court noted that "Foster in no way involved a particular prosecutor's history of adjudicated Batson violations. Rather, the Court's holding in Foster hinged on several apparent misrepresentations made by the prosecution, evidenced by the record in conjunction with the prosecution's troubling jury selection file, which had a shocking focus on race."

As part of its inquiry, the Mississippi Supreme Court examined numerous exchanges found in the trial transcript concerning Flowers III history of Batson violations, contrary to the claims of the Petitioner. Petitioner's claim that the court failed to consider this history is simply untrue. The court specifically found "the trial court was presented with and rejected Petitionerj's present argument, and the trial court certainly considered circumstances surrounding the previous trial as evidenced by its response to Petitioner's Batson claim. Additionally, the court below expressly stated that, "we do not ignore the historical evidence of racial discrimination in the previous trials in our consideration of Petitioner's arguments. However, the historical evidence of past discrimination presented to the trial court does not alter our analysis, as set out in Flowers VI." The Petitioner's request for the Court to automatically assume the district attorney violated Batson based upon his previous violation of Batson in Flowers' third trial is without precedential support and is thus devoid of legal merit.

The Lack Of Any Inferential Proof Of Racial Animus In This Case Is Distinct From That Found In Foster

Likewise devoid of merit is the Petitioner's claim that the challenged peremptory strikes in this case rise to the level of those this Court has previously held to be violative of Batson. This case simply does not involve evidence of racial animus such as multiple misrepresentations by the prosecution or a troubling jury selection file.

Acknowledging this fact, and relying on the Court's holding in Foster for guidance in adjudicating Flowers' Batson claim, the court below noted that in Foster, the prosecution's jury selection file was replete with documents referencing race, including:

(1) copies of the jury venire list on which the names of each black prospective juror were highlighted in green, with a legend indicating that the green highlighting represents ‘Blacks’;

(2) a draft of an affidavit prepared by an investigator at the request of the prosecutor, comparing black prospective jurors and concluding, "If it comes down to having to pick one of the black jurors, this one might be okay";

(3) handwritten notes identifying three black prospective jurors as "B# 1," "B# 2," and "B# 3";

(4) a typed list of qualified jurors with "N" (for "no") appearing next to the names of  all five black prospective jurors;

(5) a handwritten document titled "definite NO's" listing six names, including the names of all five qualified black prospective jurors;

(6) handwritten document titled "Church of Christ" with notation that read: "NO. No Black Church"; and

(7) the questionnaires filled out by several of the prospective black jurors, on which each juror's response indicating his or her race had been circled.

 Not one of these examples of racial animus, or any others for that matter, is present in this case.

Following the Court's GVR of the case, the Mississippi Supreme Court looked to the Court's opinion in Foster for guidance in considering "other issues that might place our original opinion in Flowers VI in error." In so doing, the court correctly noted that Batson's third step, at issue here, turns on factual determinations, and, “in the absence of exceptional circumstances, requires deference to state court factual findings unless we conclude that they are clearly erroneous. The court then addressed Petitioner's argument that it failed to follow Foster's "totality-of-the-circumstances-approach," by omitting the prosecutor's well-documented history from its assessment of the credibility of his facially neutral reasons. In so doing, the court noted that" 'In considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.''' The court correctly noted that "determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial evidence of intent as may be available."

The Mississippi Supreme Court correctly followed the mandate of Batson and its progeny in recognizing that all of the circumstances that bear upon the issue of racial animosity must be consulted. Foster did not alter the great deference given to trial judges and the third step of Batson turns on factual determinations, and, “in the absence of exceptional circumstances, we defer to state court factual findings unless we conclude that they are clearly erroneous."

The court below was correct in acknowledging that "step three of the Batson inquiry involves an evaluation of the prosecutor's credibility." Such an evaluation concerns the trial court's determinations of credibility and demeanor which are within the province of the trial judge.  

Just as there was no troubling jury file in this case, as in Foster, there was likewise no evidence of a specific policy of past discrimination. The Mississippi Supreme Court expressly considered District Attorney Evans' two past adjudicated Batson violations and held they did not overcome the deference owed to the trial judge's factual findings on which the court's affirmance relies. Nothing in that determination is violative of this Court's holding in Batson.

The Mississippi Supreme Court's Holding Regarding The Trial Court's Comparative Analysis Of Petitioner's Batson Claims Does Not Constitute Error

Additionally, the court below committed no error in adjudicating Flowers' Batson claim as it relates to Petitioner's claims of (1) disparately questioning African-American jurors as compared to white jurors; (2) responding differently to African-American jurors' voir dire answers as compared to answers of white venire members; and (3) mischaracterizing the voir dire responses of African-American jurors. The comparative analysis conducted by the trial court was consistent with Batson and its progeny. Thus, the decision of the Mississippi Supreme Court on this issue cannot be said to be clear error.

As the Court held in regarding comparative analysis, more powerful than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve. There, the Court declined to develop a comparative juror analysis but did note that the prosecution's reasons for exercising peremptory strikes against some black panel members appeared equally on point as to some white jurors who served. The trial court did conduct a comparative analysis in this case and found the State's race-neutral reasons to be valid and not the product of pretext. Additionally, the trial court found there was no disparate treatment. The Mississippi Supreme Court following its examination of the record, made the same determination.

If a prosecutor's proffered reason for striking a panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step. The narrow focus in this inquiry" then, is squarely on the actual, contemporary reasons articulated for the prosecutor's decision to strike a prospective juror and when a prosecutor gives a facially race-neutral rationale for striking a black juror, a reviewing court must assess the plausibility of that reason in light of all evidence with a bearing on it.

Flowers alleges that disparate questioning between black jurors and other jurors warrants relief in the case sub judice. The record does not support that assertion. As the Mississippi Supreme Court held in finding no evidence of discrimination based on the number of questions asked alone, there were valid race-neutral reasons which justified the district attorney asking more questions of certain black venire members. The record clearly shows this was not disparate questioning but rather a means of following up on a juror's knowledge of the case, whether they could impose the death penalty, and whether certain relationships would influence their decision or prevent them from being fair and impartial. This was not a violation of Batson.

-----+-----

CONCLUSION

The Mississippi Supreme Court reviewed the trial court's holding on the five challenged peremptory strikes and scrutinized the trial court's comparative analysis of the Petitioner's claims, and in so doing held the State's numerous and valid race-neutral reasons were not violative of Batson and were not pretextual. The record supports this holding.

None of the white jurors accepted by the State worked with a member of Flowers' family. None of the white jurors accepted by the State were related, by blood or marriage, to Flowers. None of the white jurors accepted by the State equivocated on the death pen­alty. None of the white jurors accepted by the State admitted to lying in order to get off the jury. None of the white jurors accepted by the State lied about their opinion on the death penalty; none lied about their work relationship with a member of Flowers' family. None of the white jurors accepted by the State admitted to lying to the court. None of the white jurors accepted by the State had ever been sued by the victim's company. None of the white jurors ac­cepted by the State were against the death pen­alty. The Petitioner failed to demonstrate purposeful discrimination at trial and on direct review with the Mississippi Supreme Court. He has likewise failed to satisfy his burden on this issue with this Court.

The State Respondent submits the holding of the Mississippi Supreme Court, that the State did not engage in purposeful racial discrimination during jury selection, and that Flowers' rights flowing from Batson were in no way violated, was not clearly erro­neous. The Mississippi Supreme Court conducted its own painstaking analysis of the trial court's detailed findings and did not err in its application of Batson to this case. Petitioner's Batson claims must therefore fail.

For the above and foregoing reasons, the decision of the Mississippi Supreme Court concerning Flowers' conviction of capital murder and sentence of death should be affirmed.