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Stevens v. State9/13/2001
. ยง 97-17-23. Stevens entered the trailer clearly with the intent to commit murder of the individuals that happened to be inside the trailer on October 18, 1998. Stevens shot Wesley and came inside the trailer shooting everyone else in the trailer. The crime of murder can be the underlying element required to establish the crime of burglary. Smith v. State, 499 So.2d 750, 753-54 (Miss. 1986). In Smith, this Court unquestionably rejected the argument made by Stevens by holding that the underlying felony of burglary did not merge into murder. Id. at 754.
. This Court in Smith had the same factual situation as in the case sub judice. The crime of burglary was used to raise the murder to capital murder. Id. The crime of burglary stands intact to elevate the murder to capital murder. Id. This Court in Smith, stated, in rejecting the merger doctrine, as follows:
We decline to adopt the merger doctrine and hold that under our felony-murder statute, the underlying felony does not merge into the murder. Our statutory provisions dealing with murder and the particular felony, in this case, burglary, are intended to protect different societal interests. When the appellant entered the home of [a person] with the intent to commit a crime therein, i.e., to kill [the victim], the burglary was complete and the subsequent killing of [the victim] elevated the crime of murder to that of capital murder. We find the appellant's argument unpersuasive. Id.
. Even though, clearly Stevens's intent to commit the murders satisfies the underlying element for the burglary, the felonious child abuse previously addressed would also act to serve as both the underlying element of burglary and the underlying crime to elevate the murders to capital murder status.
. We find that Stevens's argument that there was no act that would constitute felonious child abuse and that the felonious child abuse and burglary merger into the crime of murder are totally without merit.
III. WHETHER THE STATE ABUSED THE RIGHT OF PEREMPTORY CHALLENGE IN THIS CASE UNDER THE PRINCIPLES OF THE BATSON CASE?
. Stevens contends that the trial court erred in finding that the State could exercise its peremptory challenges on two black members of the venire under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Stevens further contends that the State violated the principles of non-discrimination in the exercise of its peremptory challenges. The record reflects that the State exercised a total of six peremptory challenges, two of which were for venire panel members, Ragsdale and Olive. Ultimately, eleven white jurors and one black juror were empaneled. In the case at hand, Stevens is of the white race, as well as, all five of the victims in the case.
. In Batson, the United States Supreme Court held that a peremptory challenge cannot be used to exclude venire-persons from jury service based on their race. A peremptory challenge based on race constitutes a violation of due process. Batson v. Kentucky, 476 U.S. at 98, 106 S.Ct. at 1723-24. Since the Batson ruling in 1986, the use of the rule has been extended to other circumstances. See J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 129, 114 S.Ct. 1419, 1422, 128, L.Ed.2d 89(1994) (Batson extended peremptory challenges based on gender); Georgia v. McCollum, 505 U.S. 42, 54, 112 S.Ct. 2348, 2356, 120 L.Ed.2d 33 (1992) (defendant's use of peremptory challenges based on racial consideration was prohibited); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628-29, 111 S.Ct. 2077, 2087, 114 L.Ed.2d 660 (1991) (Batson extended to civil cases); Powers v. Ohio, 499 U.S. 400, 415-16, 111 S.Ct. 1364, 1373, 113 L.Ed.2d 411 (199
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