Avery v. State, 5 Div. 348

• Citation: 545 So.2d 123
• Decision Date: 22 March 1988
• Docket Number: 5 Div. 348
• Parties: Larry AVERY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 123

545 So.2d 123

Larry AVERY v. STATE.

5 Div. 348.

Court of Criminal Appeals of Alabama.

March 22, 1988.

On Return to Remand Dec. 30, 1988.

Rehearing Denied Feb. 24, 1989.

Certiorari Denied May 19, 1989

Alabama Supreme Court 88-671.

Greg Ward, Lanett, for appellant.

Don Siegelman, Atty. Gen., and Charles W. Hart III, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Larry Avery, was indicted and convicted for committing the offense of theft of property in the first degree. He was sentenced, as a habitual offender, to life imprisonment.

Avery, a black male, contends that, in exercising its peremptory jury strikes, the prosecution was motivated by racial bias, and that consequently he is entitled to a new trial under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The record establishes that the prosecution used 12 strikes to strike 12 blacks on the venire and that no black sat on the jury. The record also reflects an explanation by the prosecution for each of its strikes against a black venireperson.

In reviewing the reasons given by the prosecution, the trial court did not have the benefit of the guiding principles of Branch v. State, 526 So.2d 609 (Ala.1987) (as modified on rehearing, December 4, 1987), for the trial occurred prior to our supreme court's decision in Branch. While this court is not automatically required to remand for additional consideration under the guidelines of Branch, where the trial court has already conducted a Batson hearing, e.g., Shelton v. State, 521 So.2d 1035 (Ala.Cr.App.1987), cert. denied, 521 So.2d 1038 (Ala.1988), we find that the instant circumstances warrant additional consideration under the Branch guidelines. See Scales v. State, 539 So.2d 1069, 1073 (Ala.Cr.App.1988) (Bowen, P.J., dissenting). Several of the prosecution's explanations appear to be somewhat tenuous, being based on such intangibles as "body language," "negative attitude," and "demeanor." These explanations require close scrutiny. Branch, 526 So.2d at 629, n. 16. Moreover, "intuitive judgment or suspicion by the prosecutor is insufficient to rebut the presumption of discrimination." Id. at 623 (citing Batson, 476 U.S. at 97, 106 S.Ct. at 1723). In addition, several strikes were based on "age." The Branch court considers these to be basically "group-based" strikes. Id. at 626, n. 13. Thus, we find that the prosecution's explanations should be reviewed in the context of the entire jury selection proceedings and, particularly, the prosecution's exercise of all its strikes.

Accordingly, we remand the cause with directions for the trial court to review again the proceedings conducted before it, using the guidelines of Batson and Branch. In carrying out this responsibility, the court may or may not conduct an additional hearing. The court is to file findings of fact and conclusions of law with this court.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

PATTERSON, Judge.

I.

This case was remanded to the trial court with instruction to review its proceedings concerning the selection of the jury, in the light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and the guidelines of Ex parte Branch, 526 So.2d 609 (Ala.1987). We left the decision as to whether an additional hearing should be held to the discretion of the trial court, and the trial court chose not to hold such a hearing. The trial court reconsidered its denial of appellant's motion to quash the jury panel for the state's alleged racial discrimination in the selection of the jury and, finding no evidence of racial discrimination in the jury selection process, reaffirmed its previous ruling. The trial court's order, which embodies its findings in this regard, has been filed with us, and we consider it as a return to our remand. For a better understanding of this matter, we set out the pertinent part of this order, as follows:

"The above-styled cause was remanded for reconsideration of the Court's ruling in regard to a motion filed alleging race-based striking by the State in violation of the principles of law set forth in Batson v. Kentucky in light of Branch v. State and Shelton v. State [, 521 So.2d 1035 (Ala.Cr.App.1987), cert. denied, 521 So.2d 1038 (Ala.1988) ]. The Court agrees that the State's explanations of its strikes citing body language, demeanor and negative attitude seem on their face to be somewhat tenuous. However, after a review of all of the facts and circumstances and the Court's own recollection of the jury voir dire process by both the State and defense, the Court is satisfied that the State did not use race as a basis for using its peremptory strikes. The Court cannot specifically identify the members of the jury panel who exhibited negative body language or demeanor. At the same time the Deputy District Attorney who conducted voir dire was very close to the jury due to acoustical problems with the Chambers County Courthouse. The Court did notice that some of the jurors seemed to respond more favorably toward one side or the other. Some of the jurors who seemed very uninterested toward the State's questions seemed more receptive to defendant's attorney.

"Later, during a hearing on defendant's Batson motion, the Court was satisfied with the State's explanation of its peremptory strikes based on its own observation of voir dire and on the demeanor of the Deputy District Attorney who explained the State's strikes. The Court is completely satisfied of the honesty of the Deputy District Attorney. Consequently, the Court reaffirms its ruling denying defendant's motion to quash."

In the instant case, appellant is black and the victim white. The prosecution used 12 of its peremptory strikes to exclude all blacks from the jury venire. Appellant objected on the ground that the prosecutor had used her strikes to systematically exclude blacks from the jury solely because of their race. The objection was timely. The trial court did not expressly rule that a prima facie case of discrimination had been established by appellant, but required the prosecution to explain its peremptory strikes. After the prosecutor explained her 12 black strikes, the trial court overruled appellant's objection and denied his motion to quash the jury panel.

We follow the rule that, when the prosecution's explanations for its strikes are of record, we will review the trial court's findings, even though there has been no express finding by the trial court that a prima facie case of discrimination has been established. Currin v. State, 535 So.2d 221 (Ala.Cr.App.1988). See also United States v. Forbes, 816 F.2d 1006 (5th Cir.1987). From the record in this case, we can fairly conclude that the inquiry into the prosecution's explanations implied such a finding and shifted the burden of justification to the prosecution. The trial court stated, when requiring explanations from the prosecution, "I suppose you need to justify the fact that there are no blacks on this jury." While we are not particularly concerned here with the establishment of a prima facie case of discrimination, we believe that the use of 12 peremptory strikes to remove all blacks from the venire, under the circumstances existing here, established a prima facie case. See Ex parte Branch, 526 So.2d at 622-23.

In explaining the peremptory strikes of blacks, the prosecutor had the burden of articulating a clear, specific, and legitimate reason for each strike, which relates to the case and which is non-discriminatory. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Ex parte Branch, 526 So.2d at 623. In reviewing the trial court's finding that the strikes were non-discriminatory, we can reverse only if we find that the determination was clearly erroneous. Floyd v. State, 539 So.2d 357 (Ala.Cr.App.1988); Owens v. State, 531 So.2d 22 (Ala.Cr.App.1987).

We have considered the reasons given by the prosecutor for the peremptory striking of all blacks. We conclude that sufficient race-neutral reasons were given for striking black venirepersons number 2, 4, 43, 46, and 74. Number 2 knows the appellant and is about his age, number 4 lives next door to appellant, number 43 is related to appellant, number 46 has difficulty hearing, and number 74 is a defendant in a pending criminal case. As to the remaining venirepersons, number 33, 42, 108, 125, 104, 122, and 118, we are troubled by the reasons given and have grave doubts as to their legitimacy. Venirepersons number 33, 42, 108, and 125 were struck for the same alleged reason, i.e., that his or her demeanor, attitude, and body language indicated a negative attitude toward the prosecutor and the state's case. The reasons given for striking number 104 were that the venireperson is the same age as appellant and that a family with a similar name is under investigation. Number 122 was struck because he has the same last name as defendants in prior cases, and number 118 was struck because he is the same age as appellant.

An examination of the voir dire questioning shows a complete lack of meaningful questions directed to the black venirepersons and related to the reasons given for striking them. "A prosecutor's failure to engage black prospective jurors 'in more than desultory voir dire, or indeed to ask them any questions at all,' before striking them peremptorily, is one factor supporting an inference that the challenge is in fact based on group bias." People v. Turner, 42 Cal.3d 711, 726 P.2d 102, 111, 230 Cal.Rptr. 656 (1986). Our supreme court in Ex parte Branch observed that "a lack of questioning to the challenged juror, or a lack of meaningful questions" is a consideration to support the finding that the proffered explanations are a "sham or pretext." 526 So.2d at 623, 624.

Although the prosecutor relied on age as one factor in striking number 104 and as the only reason for striking number 118, she made no effort on voir dire to determine the venirepersons' ages....