Alexander v. State
Decision Date | 05 May 1995 |
Docket Number | CR-93-2209 |
Citation | 673 So.2d 791 |
Parties | Lawrence ALEXANDER Jr. v. STATE. |
Court | Alabama Court of Criminal Appeals |
J. Massey Relfe, Jr., Birmingham, for appellant.
Jeff Sessions, Atty. Gen., and Frances Smith, Asst. Atty. Gen., for appellee.
This case was originally assigned to another judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.
The appellant, Lawrence Alexander Jr., was convicted of first-degree burglary, a violation of § 13A-7-5, Ala. Code 1975. He was sentenced as a habitual offender to life in prison without the possibility of parole. He raises three issues on appeal.
The appellant contends that he made a prima facie showing of racial and gender discrimination by the prosecution in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B.v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). 1 He alleges that a prima facie case of discrimination was proven by the fact that the prosecution used all seven of its peremptory strikes (% 100) to remove females, three of whom were black, where the seven veniremembers had only gender and/or race in common. He argues that the State should have been required to offer race-neutral reasons for the seven strikes.
In denying the appellant's motion, the trial court said:
The trial court's denial of the appellant's motion is based on dicta contained in Harrell v. State, 571 So.2d 1270, 1271 (Ala.1990), that was expressly disapproved by the Alabama Supreme Court in Ex parte Thomas, 659 So.2d 3 (Ala.1994). Harrell stated that "[w]hen the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created." While Harrell dealt specifically with race discrimination, J.E.B. extends the principles discussed in Batson and its progeny to gender discrimination. According to Ex parte Thomas, the prosecution's use of all its strikes against blacks clearly shows a pattern of striking blacks from the venire. "By objecting to this pattern of striking blacks from the venire, [the appellant] made a prima facie showing of a Batson violation." Thomas, supra, 659 So.2d at 8. According to the United States Supreme Court's decision in J.E.B., the same reasoning would apply to the striking on the basis of gender. The trial court in determining whether a prima facie case of gender discrimination had been established, should have considered the fact that the prosecution used all of its peremptory strikes to remove females from the jury. Also, absent any information in the record other than statistics, the fact that the prosecution used three of its seven peremptory strikes to remove blacks should have been considered in determining whether the appellant proved a prima facie case of racial discrimination.
The record does show that, based on Thomas, supra, the appellant offered evidence establishing a prima facie case of gender discrimination and also possibly racial discrimination, and that that prima facie case was not rebutted by the prosecution. Macon v. State, 659 So.2d 221 (Ala.Cr.App.1994).
Cox v. State, 629 So.2d 664, 667 (Ala.Cr.App.1992).
"The failure to articulate a sufficient race-neutral reason for excluding even a single black veniremember may entitle the defendant to a new trial." Ex parte Bankhead, 625 So.2d 1146, 1148 (Ala.1993). " 'The State may not cure the constitutional deficiency of an explanation simply by augmenting it with similar excuses none of which, standing alone, would be sufficient.' " Cox v. State, 629 So.2d at 668 (citation omitted).
Thomas allows that facts may exist under which percentages may be relevant to make or rebut a prima facie case of discrimination. The Alabama Supreme Court stated in Thomas:
Thomas, supra. The record in the present case shows that such a large portion of the prosecutor's strikes were used to remove females and blacks, as to indicate discriminatory intent in their removal.
Based on the Alabama Supreme Court's ruling in Ex parte Thomas, supra, we conclude that the appellant presented a prima facie case of gender and racial discrimination in the prosecution's exercise of its peremptory strikes. Because the appellant presented a prima facia case of gender and racial discrimination, the prosecution must give its reasons for its strikes. We remand this cause to the circuit court for an evidentiary hearing to determine whether the prosecution exercised any of its strikes in a racially discriminatory manner. The circuit court must determine if the prosecution's reasons are race- and gender-neutral. The circuit court is directed to file a return to this court within 90 days of the date of this opinion, and in that return to include a transcript of any testimony taken, as well as the court's written findings and conclusions.
The appellant contends that it was an abuse of the trial court's discretion to allow the admission into evidence of photographs of the burglary scene, which, according to the appellant, were cumulative and therefore more prejudicial than probative. Specifically the appellant objected to exhibits numbers, 3, 4, 15, 16, and 17.
Exhibit number 3 was a photograph taken outside of the burglarized apartment showing the bedroom window through which the burglar attempted to escape and its window screen. There was no objection to exhibit number 3, R. 73. "In order for this court to review an allegation of erroneous admission of evidence, a timely objection must be made to the introduction of the evidence, specific grounds for the objection should be stated and a ruling on the objection must be made by the trial court." Gibbs v. State, 342 So.2d 448 (Ala.Cr.App.1977) Goodson v. State, 540 So.2d 789, 791 (Ala.Cr.App.1988).
Exhibit number 4 depicted a bent window screen in the window from which the appellant had attempted to escape. The appellant did not state how this photograph was cumulative. However, the trial court compared exhibit number 4 to exhibit number 3 before admitting it into evidence. The record does not support the allegation that the exhibit was cumulative. However,...
To continue reading
Request your trial-
Biles v. State, CR-95-2355
...objection; therefore, the appellant's contention that it was improperly admitted is not preserved for our review. Alexander v. State, 673 So.2d 791 (Ala.Cr.App.1995). State's exhibit 9 consisted of a photograph of Hannah's right ear. The appellant objected to the admission of this picture b......
- Slay v. State, CR-94-0319