572 So.2d 1301 (Ala.Crim.App. 1990), CR 89-1113, Stariks v. State

Docket Nº:CR 89-1113.
Citation:572 So.2d 1301
Opinion Judge:JAMES H. FAULKNER, Retired Justice.
Party Name:Bobby STARIKS v. STATE.
Attorney:Gary A. Hudgins, Dothan, for appellant. Don Siegelman, Atty. Gen., and Melissa Math, Asst. Atty. Gen., for appellee.
Case Date:October 26, 1990
Court:Alabama Court of Criminal Appeals

Page 1301

572 So.2d 1301 (Ala.Crim.App. 1990)

Bobby STARIKS

v.

STATE.

CR 89-1113.

Court of Criminal Appeals of Alabama.

October 26, 1990

Page 1302

Gary A. Hudgins, Dothan, for appellant.

Don Siegelman, Atty. Gen., and Melissa Math, Asst. Atty. Gen., for appellee.

JAMES H. FAULKNER, Retired Justice.

Bobby Stariks was convicted of sexual abuse in the first degree in violation of § 13A-6-66, Code of Alabama (1975), and was sentenced to seven years in the penitentiary. Three issues are raised on appeal.

I.

Stariks contends that the prosecutor's exercise of peremptory challenges to remove male jurors from the venire in order

Page 1303

to acquire an exclusively female jury violated the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We disagree.

The Fourth Circuit Court of Appeals addressed this issue in United States v. Hamilton, 850 F.2d 1038 (4th Cir.1988), cert. denied, 493 U.S. 1069, 110 S.Ct. 1109, 107 L.Ed.2d 1017 (1990). The appellants in Hamilton challenged the Government's use of peremptory strikes of women made solely on the basis of their gender and argued that the principles of Batson and the Equal Protection Clause had been violated. The Fourth Circuit held:

"Clearly, if the Supreme Court in Batson had desired, it could have abolished the peremptory challenge or prohibited the exercise of the challenge on the basis of race, gender, age or other group classification. A careful examination of the Batson opinion, however, leads this Court to the firm conclusion that, in light of the important position of the peremptory challenge in our jury system, the Court intended Batson to apply to prohibit the exercise of peremptory challenges on the basis of race only."

850 F.2d at 1042-43.

We adopt the holding of the Fourth Circuit in Hamilton and therefore reject Stariks's attempt to extend Batson to cases of alleged gender discrimination in the exercise of peremptory challenges.

II.

Stariks contends that the trial court committed reversible error in failing to give a curative instruction directing the jury to disregard a witness's statement about physical evidence of sexual abuse of the victim's sister.

During defense counsel's cross-examination of Sergeant Danny McGriff of the Dothan Police Department, McGriff testified that there was no physical evidence that the seven-year-old victim, T. M., had been sexually abused. On redirect examination of McGriff, the following occurred:

"Q. Mr. Hudgins asked you about physical evidence. By that, you didn't find any signs of blood or cuts or tears or anything like that; is that right?

"A. No, sir. No, sir, not with T.

"Q. How about [the sister]?

"A. Yes, sir.

"MR. HUDGINS: Judge, I'm going to object.

"THE COURT: Sustained.

"MR. HUDGINS: Your Honor, I would ask that the Court instruct the jury to disregard that last comment from the stand.

"MR. BINFORD: That's right on point with the case that we gave the Court, the sister--acts that were committed against the sister

....

(Bench Conference, off the Record.)

"MR. BINFORD: That's all I have at this time.

"THE COURT: Okay. You can step down. Anything else, Gary?

"MR. HUDGINS: Judge, I just want an opportunity to recall him.

"THE COURT: I'll give you an opportunity to recall him if you have one or two more questions off the tape.

"MR. BINFORD: Judge, if I could also ask him if we could borrow his tape player?

"THE COURT: Okay. If he wants to loan it to you."

It is clear from this colloquy that Stariks made no objection to the prosecutor's question about the victim's sister until after the question had been asked and answered. Furthermore, Stariks then received a favorable ruling on his objection. "Where a question is asked and answered before an objection is made, the objection comes too late, and the trial court's ruling is not error." Thompson v. State, 527 So.2d 777, 779 (Ala.Cr.App.1988).

Although Stariks then requested a curative instruction, an...

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