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IN THE COURT OF APPEALS 01/14/97 OF THE STATE OF MISSISSIPPI
NO. 95-KA-00576 COA

EUGENE DEDEAUX A/K/A EUGENE DEDEAUX, JR. 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. KOSTA N. VLAHOS COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ALBERT NECAISE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOLENE M. LOWRY DISTRICT ATTORNEY: CONO CARANNA NATURE OF THE CASE: FELONY-MURDER TRIAL COURT DISPOSITION: DEDEAUX CONVICTED OF MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS MANDATE ISSUED: 6/19/97

EN BANC McMILLIN, J., FOR THE COURT: Eugene Dedeaux was convicted by a Harrison County Circuit Court jury for the murder of his wife, Joyce Dedeaux, and sentenced to life in prison. It is from that verdict and resulting sentence that Dedeaux brings this appeal, assigning the following as error: (1) the denial of his right to equal protection because of the racially-based exclusion of black venire members from the jury through the improper use of peremptory challenges by the State, (2) the failure of the lower court to grant a directed verdict based on what Dedeaux claims to be his uncontradicted testimony establishing his innocence, (3) the trial court's failure to grant two requested accident instructions, and (4) the trial court's failure to sequester the jury when it recessed for the evening after deliberations had begun. We find no merit to any of the issues raised by Dedeaux, and we therefore affirm. I. Facts On the morning of August 23, 1993, Joyce Dedeaux was shot and killed outside her home in Biloxi. Officers responded to a 911 call from Eugene Dedeaux, the husband of the victim. Upon their arrival at the scene, they found Mrs. Dedeaux's body slumped over between the driver and passenger seat of her Volvo with a bullet wound to her head. Her arm was resting on a notepad where she had apparently been taking notes prior to her death. Also on the car seat was a copy of a complaint for divorce. The Volvo had collided with another vehicle in the driveway, and there was broken glass in the yard about ten feet behind the car. On top of the car was a tape recorder which was still playing when the officers arrived. Dedeaux was inside the home, sitting on the couch with a gun lying near his feet. Dedeaux informed officers that his wife had awakened him that morning requesting that he sign divorce papers and asking for the tape recording of a telephone conversation between her and a man which Dedeaux had made. Dedeaux stated that he refused her requests, but did walk with his wife to her car and ultimately agreed to play the tape for her. He placed the tape recorder on top of the car and his left hand on the driver's side window, which was partially rolled up. He and Mrs. Dedeaux discussed certain terms of the divorce while she took notes on a notepad. Then, according to Dedeaux, Mrs. Dedeaux started the car and told him to move his hand. When he refused to do so, she continued rolling up the window, causing his left hand to become stuck. Dedeaux then took his gun out of his pocket with his right hand to frighten her into releasing his hand. He stated that when his wife pulled the car forward, it jerked his body and caused the gun in his right hand to discharge. Dedeaux called 911 for help, stating, "I just killed my wife . . . I (inaudible) took a gun and shot her." Dedeaux was indicted, tried, and convicted for the murder of Joyce Dedeaux. It is from this conviction and resulting judgment of sentence that Dedeaux brings this appeal. II. Batson Challenge

The State used peremptory challenges to remove Julia Love, Lawrence Jasper, and Bryan Hampton, three of six black individuals on the venire. Dedeaux argues that these challenges were racially motivated, thereby depriving him of the right to a fair trial. See Batson v. Kentucky, 476 U.S. 79 (1986). In a hearing in chambers, the State offered what it claimed to be non racial reasons for exercising these challenges. According to the State, Ms. Love was struck because she had previously served on a hung jury in a murder trial; Mr. Jasper was struck due to lack of available information about him because he had not fully completed his juror information card; and Mr. Hampton was struck because he lived at the same address as, and was probably related to, the indictee in a pending murder case. Counsel for the defense was permitted to make a response to these proffered reasons. The judge then made a determination that he found the reasons offered acceptable as not being discriminatory in purpose, concluding that the defense had failed to make out "a prima facie case of discrimination." He thereupon impaneled the jury without these three individuals. The record indicates that this is another instance where all the players at the trial level appeared unaware of the procedural steps outlined by the United States Supreme Court for the resolution of a Batson-type challenge to the exercise of peremptory challenges. It seems to be a misconception of almost universal dimension that the mere incantation of the word "Batson" is sufficient to trigger the requirement that the State affirmatively defend the race-neutral character of its strikes. The Batson decision states, to the contrary, that, before such a requirement arises, the defense must not only suggest the existence of impropriety but must also establish a prima face case that such discrimination is, in fact, occurring. Batson, 476 U.S. at 95-96. Batson suggests several ways that a prima facie case may be made, but then concludes: [T]hese examples are merely illustrative. We have 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. Id. at 97. Only at such time as the prima facie showing is made may the State be required to come forward with its race-neutral explanations. Id. The subsequent case of Hernandez v. New York advances the proposition that, if the State voluntarily comes forward with its race-neutral reasons for exercising its challenges, then the requirement of a prima facie showing of discriminatory purpose becomes moot. Hernandez v. New York, 500 U.S. 352, 358 (1991). Hernandez does not answer the question of what consequences attach when the trial court improperly compels the State to give its reasons without making the requisite preliminary finding that a prima facie case of discrimination has been established. Neither has that question been answered in Mississippi by our supreme court. It has been established that, if the defendant is compelled by the trial court to respond to a `reverse-Batson' challenge from the prosecution without the prosecution having made a prima facie showing of discrimination, such compelled response will not be treated as a waiver under Hernandez. See Stewart v. State, 662 So. 2d 552, 558-59 (Miss. 1995).

As a practical matter, the State would appear to have no real recourse from a trial court's misconception of its duties under Batson, since it seems doubtful that the State would have an appeal from an acquittal on a claim that it was improperly denied its peremptory challenges, and a guilty verdict renders the issue moot. Therefore, this Court will, until instructed of its error, treat both voluntary and compelled recitals of non racial reasons for exercising peremptory challenges by the State as rendering moot the preliminary requirement that the defense make a prima facie showing of discriminatory intent under the rationale of Hernandez. See Hernandez, 500 U.S. at 358. Thus, the issue before us is not, as the trial court stated, whether there was a prima facie case of discrimination made, but, more properly, whether the trial court was manifestly in error in holding, in effect, that the defense had failed in its "ultimate burden of persuasion" that such discriminatory activities were underway. Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995). We conclude that he was not. "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez, 500 U.S. at 360. The reasons given by the State in this instance are not facially based upon any consideration of race. Thus, the only basis to disallow the strikes under Batson would have been for the trial court to determine that the reasons offered, though facially race-neutral, were in fact merely pretextual justifications to disguise the true discriminatory purposes of the prosecution. Id. at 362. The trial court admitted that the reason offered to challenge Ms. Love was questionable in his mind, but, nevertheless, concluded that it was a legitimate reason. Though "implausible or fantastic justifications may . . . be found to be pretexts for purposeful discrimination," such a conclusion is not compelled by even "silly or superstitious" reasons. Purkett, 115 S. Ct. at 1771 (emphasis supplied). Such a subjective conclusion must be made, in the first instance, by the trial court, and that decision on appeal is given great deference. Stewart v. State, 662 So. 2d 552, 558 (Miss. 1995); see also Davis v. State, 551 So. 2d 165, 171 (Miss. 1989). The court made no finding of pretext in the reasons offered, and there is nothing in the record to support the proposition that the trial court was manifestly in error in failing to conclude that the State was engaged in such improper activity. As a result, we determine this issue to be without merit. III. Directed Verdict Under Weathersby The defendant, not unexpectedly in the circumstance where a homicide has occurred and there are no witnesses other than the defendant, claims that he is entitled to a directed verdict under authority of Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). The Weathersby rule, as it has come to be known, states: [W]here the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge. Weathersby, 147 So. at 482. At the threshold, there appears to this Court a substantial question as to whether Dedeaux's version

of the homicide was so "reasonable" as to bring it within the mandatory provisions of Weathersby. His story that his wife rolled the car window up, thereby trapping his hand, then began to drive away, that he pulled a gun solely for the purpose of frightening her into releasing his hand, and that a sudden forward jerk in the car caused an accidental contraction of his trigger finger, if not incredible, certainly requires a rather uncritical acceptance of a somewhat bizarre sequence of events. This Court concludes that the version of the events was, on the whole, so contrary to "facts of common knowledge" as to take it out of the Weathersby rule. Aside from that, there was substantial evidence that both directly and indirectly contradicted Dedeaux's version of the event. A neighbor testified to observing Dedeaux walking in a calm manner away from the shooting scene, contrary to Dedeaux's claim that he rushed into the house to summon 911 assistance. There was a tape recorder still sitting on top of the car when police arrived, suggesting that there was no sudden acceleration of the car. There was testimony of a threat made by Dedeaux approximately two weeks prior to the shooting that he was going to "blow [the victim's] . . . brains out." Finally, Dedeaux's description of the incident to the 911 operator could be reasonably construed as being inconsistent with a purely accidental shooting. We conclude, based on all the foregoing, that the Weathersby rule had no application in this case, and that the case was properly submitted to the jury for determination of guilt. IV. Refusal to Grant Accident Instruction Dedeaux complains of the trial court's refusal to grant a requested instruction permitting his acquittal if the jury concluded the shooting was accidental within the meaning of section 97-3-17(a) of the Mississippi Code of 1972. This passage, which establishes one circumstance in which a killing may be an excusable homicide, would cover this case only if Dedeaux had been "doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. . . ." Miss. Code Ann.

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