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IN THE COURT OF APPEALS 08/06/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-00427 COA

BOBBY CAMPBELL APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CHARLES C. PEARCE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:DEWITT ALLRED III, SPECIAL ASSISTANT ATTORNEY GENERAL DISTRICT ATTORNEY: KEN TURNER NATURE OF THE CASE: CRIMINAL (FELONY) -POSSESSION OF COCAINE TRIAL COURT DISPOSITION: DEFENDANT CAMPBELL CONVICTED OF POSSESSION OF COCAINE AND SENTENCED TO SERVE A TERM OF THREE YEARS IN THE CUSTODY OF THE MDOC AND ORDERED TO PAY A FINE IN THE AMOUNT OF $5,000.00

BEFORE FRAISER, C.J., DIAZ, AND McMILLIN, JJ. McMILLIN, J., FOR THE COURT: This appeal arises from the conviction of Bobby Campbell for possession of cocaine in the Newton County Circuit Court. Campbell was sentenced to serve a term of three years in the custody of the Mississippi Department of Corrections and ordered to pay a fine in the amount of $5,000.00. On appeal, Campbell alleges as error the trial court's failure to grant a peremptory challenge in his favor in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny. Campbell also challenges the sufficiency of evidence supporting the jury verdict and the trial court's refusal to grant a requested jury instruction. We find merit to Campbell's assertion that the trial court erred in denying his exercise of one of his peremptory strikes, thereby depriving him of his constitutional right to a fair trial. We, therefore, reverse and remand this cause for a new trial. I. FACTS

Because we find error in the trial court's failure to grant a peremptory challenge, we will not recite the evidence presented at trial, but will discuss only the facts surrounding the jury selection process. At the close of voir dire, both counsel and the trial judge retired to chambers to select the jury. At the beginning of the selection process, defense counsel requested that the trial judge "invoke the Batson rule." Following that request, the resulting colloquy below took place between the judge and counsel for the defendant, Bobby Campbell. By the Court: Are you prepared to comply with Batson, also? It says you have got to do it, too.

By Mr. Pearce: Yes, sir.

By the Court: It isn't attorney discretion. You have just got to convince me you are giving a good reason. Is that what you want to do?

By Mr. Pearce: Yes, sir.

Shortly after the jury selection process had begun, the defendant exercised his first peremptory challenge on Edward Crosby, a white male. At the request of the trial judge, defense counsel stated that his reason for exercising a peremptory on that particular venireman was that Crosby seemed to

be a very conservative man and had a brother who was believed to be involved in the Ku Klux Klan. The judge accepted that challenge, and the process continued. The defense then attempted to excuse Thomas Hitt, a white male, from the jury panel. At that point, the trial court again stated, "He is white. Now, why do you excuse him?" To that request, Mr. Pearce, counsel for the defendant, stated, "My partner has represented him on occasion in the past and tells me that, in his judgment, he is very conservative, and does not think he would be openminded." The judge responded, "I won't accept that as being a racially neutral reason. I deny the strike." II. Discussion

Campbell alleges that the trial court committed reversible error in denying him the use of a peremptory challenge, thereby denying his constitutional right to a fair trial. Though the right to exercise peremptory challenges has been found not to rise to the level of a constitutional right, it is, nevertheless, a statutorily created right under the Mississippi Code, section 99-17-3. The arbitrary denial of such a statutory right in a criminal prosecution can invoke constitutional due process considerations which entitle the defendant to relief. Miss. Code Ann.

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