IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-00379-COA
BOBBY LEE ALLEN A/K/A BOBBY LEE APPELLANT
ALLEN, JR. A/K/A BOBBY ALLEN A/K/A
BOBBY ALLEN, JR.
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/02/2013
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY: MICHAEL GUEST
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, ARMED
ROBBERY, AND SENTENCED TO FORTY
YEARS; COUNT II, ACCESSORY AFTER
THE FACT TO MURDER, AND
SENTENCED TO TWENTY YEARS; AND
COUNT III, CONSPIRACY TO COMMIT
ARMED ROBBERY, AND SENTENCED TO
FIVE YEARS, WITH THE SENTENCES TO
RUN CONCURRENTLY, ALL IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
DISPOSITION: AFFIRMED: 06/06/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1. In this appeal, Bobby Lee Allen asserts that the Madison County Circuit Court erred
when it sustained the State’s objections to his peremptory strikes of two potential jurors. He
also challenges the sufficiency of evidence to convict him of armed robbery and conspiracy
to commit armed robbery. Upon review, we find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On April 30, 2012, Allen and two other males drove to an apartment complex in
Ridgeland, Mississippi. Allen, the driver of the vehicle, waited in the car as the other two
men robbed and shot Jose Gurrola Ortiz. When the men returned to the vehicle, Allen drove
away from the scene. Allen was indicted for armed robbery, accessory after the fact to
murder, and conspiracy to commit armed robbery, in violation of Mississippi Code
Annotated sections 97-3-79, 97-1-5, and 97-1-1 (Rev. 2014).
¶3. During the investigation phase, Allen provided multiple statements to the detectives.
He confessed to driving the men to the location, and he admitted that he heard the gunshot.
But Allen claimed to have no prior knowledge of the robbery plot. He told investigators that
one of the men offered him gas money in exchange for a ride to a girl’s home. Allen
provided specific details about the crimes and admitted that he split the money with the men.
Allen was arrested after he provided his final statement.
¶4. During jury-selection proceedings, the State challenged Allen’s six peremptory strikes
against Caucasian males. The State claimed the strikes were racially motivated and
improperly based on gender. Allen took issue with two jurors in particular and argued that
both of the potential jurors displayed disinterested mannerisms or body language. The circuit
judge found that Allen’s explanations were insufficient and neither race- nor gender-neutral.
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¶5. After a two-day trial, Allen was convicted on all counts. On May 2, 2013, he was
sentenced to concurrent sentences of forty years. On appeal, counsel for Allen argues that
the circuit court erred when it overruled the peremptory strikes. Allen, in a supplemental pro
se brief, argues that the evidence was insufficient to convict him of Count I, armed robbery,
and Count III, conspiracy to commit armed robbery. Allen does not appeal the sufficiency
of the evidence as to Count II, accessory after the fact to murder.
ANALYSIS
I. Batson Challenge
¶6. Allen argues that the circuit court erred when it overruled his peremptory strikes as
race- and gender-biased. He challenges the circuit court’s determination that body language
is not a neutral justification. Allen asserts that the Mississippi Supreme Court has recognized
that body language and demeanor are in fact race- and gender-neutral reasons to exercise a
peremptory strike. Allen further contends that he justified the strikes when he explained that
both men appeared disinterested and predisposed to the notion that he was guilty. Finally,
Allen concludes that the trial court’s decision was erroneous because the record provides no
evidence of inherent discrimination. Thus, he claims he is entitled to a new trial on all counts
of conviction.
¶7. “The trial judge acts as finder of fact when a Batson issue arises.” Avant v. State, 910
So. 2d 695, 698 (¶11) (Miss. Ct. App. 2005) (citation omitted). “This Court gives great
deference to the trial court’s findings of whether or not a peremptory challenge was race-
neutral.” Anthony v. State, 108 So. 3d 419, 424 (¶18) (Miss. Ct. App. 2012) (reversed on
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other grounds). “[W]e will not overrule a trial court on a Batson ruling unless the record
indicates that the ruling was clearly erroneous or against the overwhelming weight of the
evidence.” Id.
¶8. During voir dire, Allen attempted to strike six jurors, and the State objected on the
basis that all of the strikes were against Caucasian males. The circuit court reviewed the
peremptory challenges and asked Allen to provide race- and gender-neutral reasons for the
strikes. Allen offered several reasons, and the State conceded four of the strikes. For the
remaining two potential jurors, the following exchange took place:
Court: So it does appear that all six of the challenges exercised by the
Defense was against white males. There was one white male
that was accepted. However, . . . I do think that that shows a
pattern in that all of the six challenges were utilized against
white males so that I will ask the Defense to give me a race-
neutral reason for the strike as to Juror Number 3.
....
Defense: Your Honor, I believe it was this particular one that was more
or less the mannerism and just that individual just showed a
general disinterest in what was going on, in my opinion.
Court: What says the State?
Prosecutor: Your Honor, we would say that it requires more than that.
Under the case law, under body language, you know, under
Canon, it’s arms folded; under Manning, it’s arms folded; under
Walters, rolled eyes. I’m not seeing anything here under just
general mannerism. . . .
Court: What says the Defense?
....
Defense: Your Honor, I would say that . . . his mannerisms w[ere] beyond
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what I would consider to be normal. He did appear to be
disinterested as if his mind were already made up. . . .
Court: I did not see a single response that he made to any of the
questions. . . . As I’m sitting here, I saw nothing that would
draw my attention to Mr. Keeton. He answered no questions so
I find that the explanation given by the Defense is insufficient
for a race-neutral reason so Mr. Keeton will go on the jury as
Juror Number 7.
....
Court: Number 9, Mr. Thomas, what’s your race- and gender-neutral
reason for striking Mr. Thomas?
Defense: Again, your Honor, I believe it was body language[.]
Court: What says the State?
Prosecutor: Your Honor, my notes reflect that Juror 9 did not open his
mouth and I do not indicate anything that would show that he
had made his mind up or ha[d] a predisposition; and as such,
pursuant to the case law, I think that this is [pretextual].
Court: What says the Defense?
Defense: I have nothing in response, Your Honor.
Court: All right. As I’m sitting here watching the venire, there was
certainly nothing about Number 9 that caused my attention to be
drawn to him. I find that the explanation given is not sufficient
and I find that the strike is [pretextual] and so Juror Number 9
will be placed on the jury as Juror Number 8.
¶9. “The United States Supreme Court established a three-part test for a party to make out
a prima facie case of purposeful discrimination in jury selection.” Anthony, 108 So. 3d at
426 (¶20) (citing Batson v. Kentucky, 476 U.S. 79, 96 (1986)). “The objecting party must
show”:
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(a) he is a member of a cognizable racial group;
(b) the non-objecting party exercised peremptory challenges to remove venire
members [of a different race from the defendant]; and
(c) these facts and any other relevant circumstances raise an inference that the
non-objecting party used that practice to exclude the venire [members] from
the petit jury on account of their race.
Id.
¶10. “After a prima facie case has been made, the party exercising the challenge has the
burden to articulate a race-neutral explanation for excluding the potential juror.” Flowers
v. State, 144 So. 3d 188, 196-97 (¶29) (Miss. Ct. App. 2014) (citation omitted). “As long as
discriminatory intent is not inherent in the explanation given by the [defendant], ‘the reason
offered will be deemed race[-]neutral.’” Id. at 197 (¶11) (citation omitted). Next, “the trial
court must determine whether the objecting party has met its burden to prove that there has
been purposeful discrimination in the exercise of the peremptory [strike], i.e., that the reason
given was a pretext for discrimination.” Id. (citation and quotation marks omitted).
¶11. Here, the record reveals that Allen used his six strikes to dismiss Caucasian males
from the venire. After the State’s Batson1 challenge, the circuit judge asked Allen to provide
neutral reasons for each strike. During the process, the State conceded four of the dismissals.
Allen, who is African American, claimed that the remaining two potential jurors each
1
Batson v. Kentucky, 476 U.S. 79 (1986), is commonly referred to as Batson or as the
concept of a Batson challenge. The holding in this United States Supreme Court case sets
out the test for determining if a peremptory strike is racially discriminatory. In Batson, the
court found that the Equal Protection Clause forbids a party from challenging potential
jurors solely on account of race or the assumption that a particular race of people, as a
whole, will be unable to impartially consider the State’s case against a defendant.
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exhibited disinterested mannerisms and appeared as though they had already determined his
guilt. The State countered that Allen’s explanations were insufficient because he failed to
describe specific body language that suggested the men were disinterested. When given the
opportunity to further elaborate, Allen offered no response.
¶12. The circuit judge pointed out that neither Juror 3 nor Juror 9 had answered any
questions during voir dire. The judge further noted that he had personally kept watch, and
he saw nothing that drew his attention to either of the men. The circuit judge ultimately
determined that Allen’s strikes were pretextual in nature and placed both of the men on the
jury.
¶13. At trial, Allen failed to detail specific body language to indicate the jurors appeared
disinterested. But now he cites to several supreme court cases to support the contention that
body language and demeanor are in fact recognized as race- and gender-neutral reasons for
a peremptory strike. Allen claims that “a nonexhaustive list” of supreme court cases have
found that demeanor is a neutral justification. However, of the four cases that he relies on,
all of the challenges were based on specific behaviors, and the trial courts recognized each
explanation as neutral.
¶14. For example, Allen erroneously relies on Lockett v. State, 517 So. 2d 1346, 1356-57
(Miss. 1987), which, in its appendix, provides a detailed listing of various reasons that have
been accepted as neutral by other state courts. Allen fails to recognize that the supreme court
merely cited to these cases to support its determination that the prosecution provided
legitimate reasons for striking jurors. As set out in the facts of Lockett, the trial court
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sustained the prosecution’s strike of a juror who wore a hat into the courtroom because this
behavior appeared contemptuous of the proceedings. Id. at 1351-52. Likewise, another
potential juror in Lockett rolled her eyes and became unresponsive to the voir dire after she
was denied excusal from the jury pool. Id. at 1351. Consequently, the trial court determined
that the potential juror’s posture and demeanor appeared hostile and were legitimate concerns
for the prosecution. Id.
¶15. In the remaining cases cited by Allen, he fails to reference specific language upon
which he relies for each case. As such, the cases cited provide little support for his argument
that the supreme court recognizes demeanor, generally, as a neutral reason. Allen cites Lynch
v. State, 877 So. 2d 1254 (Miss. 2004), but this case does not add much support to his
position. In Lynch, each of the peremptory challenges was based on actual responses and the
prosecutor’s belief that several of the jurors appeared anxious to be excused from jury duty.
Id. The instant case is distinct because neither Juror 3 nor Juror 9 responded to voir dire, nor
was either juror alleged to have been anxious to get off the jury.
¶16. Allen also relies on Davis v. State, 660 So. 2d 1228, 1242 (Miss. 1995), but he cites
this case to return the Court’s attention to the list provided in Lockett. Mere reference to the
word “demeanor” in a supreme court opinion without more of an explanation of the specific
demeanor is not enough to sustain a peremptory strike as race-neutral. Further, of the
prosecution’s nine peremptory strikes, in Davis, none were predicated on body language
alone. Id. at 1240-42. The facts in Davis are distinct from the instant case. The prosecution
provided extensive justification for each of its strikes, and the trial court sustained each
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reason. Id. We would apply the same analysis provided above for Davis to Allen’s use of
Hardison v. State, 94 So. 3d 1092 (Miss. 2012), which he also relies on to support his
argument that demeanor alone is a sufficient race-neutral justification.
¶17. Finally, in reliance on Randall v. State, 716 So. 2d 584, 588 (¶16) (Miss. 1998), Allen
asserts that “any reason which does not facially violate the Constitution is sufficient.”
Further, he adds that “a strike does not have to be persuasive or even plausible.” Id. Allen
further contends that the record is void of any inherent discriminatory intent toward Jurors
3 and 9. Id.
¶18. Here, Allen misinterprets the court’s intent when he relies solely on this passage from
the opinion. In this portion of Randall, the supreme court simply laid out the steps to be
taken by a trial court when analyzing a Batson challenge of a peremptory strike. In fact, this
Court has held that “a facially race-neutral explanation for a peremptory challenge should
never be sufficient, standing alone, to meet a Batson objection.” Dubose v. State, 22 So. 3d
340, 347-48 (¶17) (Miss. Ct. App. 2009). Rather, “[a] Batson [challenge] requires more.”
Id. Under Batson, “the trial judge [must] determine whether the facially race-neutral reason
is in fact a pretext for purposeful discrimination: a ‘smoke-screen,’ if you will.” Id. When
challenged, Allen provided no explanations to disprove the State’s argument that he sought
to rid the jury of Caucasian males. Unlike the previously discussed cases, in the instant case,
neither of the jurors spoke nor exhibited specific mannerisms that raised concern.
¶19. While the supreme court has recognized that “demeanor is a legitimate reason . . . to
exercise a peremptory challenge,” here, the challenging party failed to articulate specific
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mannerisms or demeanors for the peremptory strikes. Lockett, 517 So. 2d at 1352. The
circuit judge made specific findings based on his own observations as well as the assertions
of each party. Allen failed to elaborate on the mannerisms or body language that caused him
concern. Moreover, the circuit judge personally noted that neither of the jurors drew his
attention. Without more of an explanation from Allen, the circuit judge determined there was
in fact a pattern of strikes against Caucasian males only.
¶20. This Court gives great deference to a trial court’s finding of whether or not a
peremptory challenge was race-neutral. Here, we find that the circuit court did not err when
it found that Allen’s explanations were neither race- nor gender-neutral. The evidence in the
record supports the circuit judge’s finding that the strikes were discriminatory and pretextual.
The circuit court’s ruling was not clearly erroneous. This issue is without merit.
II. Sufficiency of the Evidence
¶21. Allen contends there was insufficient evidence to convict him of armed robbery and
conspiracy to commit armed robbery. He argues that the State failed to prove each element
of the crimes. He contends there was plain error because the evidence did not show that he
conspired to commit the unlawful act of armed robbery. Allen argues that the State failed
to prove that an agreement existed between him and the other two men involved in the armed
robbery.
¶22. “On review of the sufficiency of the evidence, ‘the critical inquiry is whether the
evidence shows []beyond a reasonable doubt that [the] accused committed the act charged,
and that he did so under such circumstances that every element of the offense existed; and
10
where the evidence fails to meet this test it is insufficient to support a conviction.’” Dorsey
v. State, 986 So. 2d 1080, 1085 (¶15) (Miss. Ct. App. 2008) (citing Bush v. State, 895 So. 2d
836, 843 (¶16) (Miss. 2005)). The question is not “whether we believe the evidence showed
guilt beyond a reasonable doubt.” Id. Rather, our inquiry is based on consideration of “the
evidence in the light most favorable to the verdict.” Id. We must ask ourselves if “a rational
trier of fact could have found each essential element of the crime beyond a reasonable
doubt.” Id. (citation omitted). If “the facts and inferences . . . point in favor of the
defendant[,] on any element of the offense[,] with sufficient force that no reasonable juror
could have found guilt beyond a reasonable doubt, then we must reverse and render.” Id.
(citation omitted).
¶23. To obtain a conviction for conspiracy to commit armed robbery, the State was
required to prove that Allen along with “two (2) or more persons . . . conspire[d] . . . to
commit [the] crime [of armed robbery].” Miss. Code Ann. § 97-1-1. To prove the
underlying crime of armed robbery, the State was also required to prove, beyond a reasonable
doubt, that Allen “feloniously [took] or attempt[ed] to take from the person or from the
presence the personal property of another and against his will by violence to his person or
by putting such person in fear of immediate injury to his person by the exhibition of a deadly
weapon.” Miss. Code Ann. § 97-3-79.
¶24. In his supplemental pro se brief, Allen claims that he had no deliberate intent to
commit any crime. He asserts that he had no prior knowledge of the other men’s plan to
commit a robbery. He contends that his agreement to provide transportation in exchange for
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gas money falls short of conspiring to engage in an armed robbery. Further, he argues that
the conviction was received in error because the State failed to prove that he agreed to
accomplish some unlawful purpose. Allen offers this lack of awareness as proof that he
never entered into an agreement to commit the armed robbery.
¶25. Allen claims that his ignorance of the robbery plot is undisputed. However, this claim
is contrary to the evidence presented at trial. Weighing the evidence in the light most
favorable to the verdict, Allen’s own confessions, accompanied by the investigator’s
corroborating testimony, established that Allen conspired to commit armed robbery.
Therefore, Allen, as a coconspirator, was also guilty of armed robbery.
¶26. Allen’s recorded statements were played for the jury, and several of the detectives
testified on behalf of the State. Allen told detectives that he drove around until the gunman
instructed him to stop the vehicle and back into a parking spot. He also admitted that he
became aware of the plan to commit armed robbery before the act took place.
¶27. Allen placed himself at the scene, and he was present when the victim was selected
as the target for the armed robbery. He provided a precise description of the victim’s vehicle
and also knew that the driver was of Mexican descent. Allen told investigators that he sat
in the car, and played on his cell phone while the men executed the robbery. He admitted
that he heard the gunshot, and he waited on the men to return to the car before he drove
away. Allen also confessed that he and the other men split the money that was taken from
the victim. “We do not find that the evidence so heavily preponderates against the verdict
that to allow the verdict to stand would permit an unconscionable injustice.” Dorsey, 986
12
So. 2d at 1087 (¶21). We affirm.
¶28. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF FORTY
YEARS; COUNT II, ACCESSORY AFTER THE FACT TO MURDER, AND
SENTENCE OF TWENTY YEARS; AND COUNT III, CONSPIRACY TO COMMIT
ARMED ROBBERY, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCES
TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO MADISON COUNTY.
LEE, C.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE,
JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY IRVING, P.J.
WESTBROOKS, J., DISSENTING:
¶29. I find that the trial court erred when it overruled Allen’s peremptory strikes of two
potential jurors. Because I believe the proffered reasons were race- and gender-neutral, I
respectfully dissent.
¶30. Allen’s counsel used peremptory strikes on six white males. The prosecutor objected
and requested that Allen’s counsel be required to give race- and gender-neutral reasons for
the strikes. The court found that Allen’s counsel provided race- and gender-neutral reasons
for four of the peremptory strikes. For the remaining two jurors, the following exchange took
place:
THE COURT: So it does appear that all six of the challenges exercised by the
Defense was against white males. There was one white male that was
accepted. However, . . . . I do think that shows a pattern in that all of the six
challenges were utilized against white males so that I will ask the Defense to
give me a neutral reason for the strike as to Juror Number 3.
....
THE COURT: All right. What says the Defense to the race gender reason
13
[sic] for exercising D1?
MR. DIXON (ALLEN’S COUNSEL): Your Honor, I believe it was this
particular one that was more or less the mannerism and just that individual just
showed a general disinterest in what was going on, in my opinion.
....
THE COURT: Number 9, Mr. Thomas, what’s your race and gender neutral
reason for striking Mr. Thomas?
MR. DIXON: Again, your Honor, I believe it was the body language[.]
¶31. The trial court found that Allen’s answers were pretextual in nature. I disagree. “Our
supreme court has set out a non-exhaustive list of valid race-neutral reasons for the exercise
of peremptory challenges[.]” Perry v. State, 949 So. 2d 764, 767-68 (¶7) (Miss. Ct. App.
2006). This list “includes living in a ‘high crime’ area, body language, demeanor, distrust
of a juror by the party exercising the strike, inconsistency between oral responses and juror’s
card, criminal history of juror or relative, social work and other types of employment, and
religious beliefs.” Id; see also Walker v. State, 815 So. 2d 1209, 1215 (¶12) (Miss. 2002)
(citing Lockett v. State, 517 So. 2d 1346, 1356-57 (Miss. 1987)).
¶32. Also, a white-male juror had been accepted in the jury box before the prosecution
made a challenge to Allen’s peremptory strikes. “When considering a Batson objection, the
trial court should consider the racial composition of the entire venire panel, the jurors
considered for service, and the jurors and alternates who actually served.” Camper v. State,
24 So. 3d 1072, 1076 (¶17) (Miss. Ct. App. 2010). In Camper, a juror was excluded for
looking “disinterested” and had her hands crossed during the void dire procedure. Id. at
(¶15). “The trial court made its factual finding concerning [the juror] by holding that bad
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body language was an acceptable race/gender neutral reason.” Id. This Court further found
that “it was not error for the [trial] judge to accept the . . . reason, because body language has
been accepted by the Mississippi Supreme Court as a race-neutral reason for the exercise of
a peremptory strike.” Id.
¶33. Allen’s counsel argued that the witnesses looked disinterested and exhibited body
language and mannerisms that exhibited that their minds had already been made up regarding
the case. Accordingly, I find these reasons to be race- and gender-neutral.
¶34. The majority asserts that specific body language needs to be specified in giving a race-
and gender-neutral reason for striking a potential juror, and cites the appendix in Lockett, 517
So. 2d at 1356-57, which provides a listing of various reasons that have been accepted as
neutral by other state courts. Maj. Op. at (¶¶13-14). The majority holds that Allen
erroneously relies on Lockett; however, “demeanor” and “lack of eye contact and
attentiveness” are listed as neutral reasons. Lockett, 517 So. 2d at 1356. Therefore, I would
find that Allen’s reasons for using the peremptory strikes on Jurors 3 and 9 were race- and
gender-neutral.
¶35. I respectfully dissent, and I would reverse and remand this case for a new trial.
IRVING, P.J., JOINS THIS OPINION.
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Bobby Lee Allen v. State of Mississippi
Combined Opinion