Blackmon v. State, No. CR-01-2126 (Ala. Crim. App. 8/25/2006)

• Decision Date: 25 August 2006
• Docket Number: No. CR-01-2126.,CR-01-2126.
• Parties: Patricia Blackmon v. State of Alabama.
• Court: Alabama Court of Criminal Appeals

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Patricia Blackmon v. State of Alabama.

No. CR-01-2126.

Court of Criminal Appeals of Alabama.

Decided August 25, 2006.

Appeal from Houston Circuit Court (CC-99-1177)

On Application for Rehearing.

McMILLAN, Presiding Judge.

The appellant, Patricia Blackmon, was convicted of capital murder in the beating death of her 28-month-old daughter, Dominiqua. See § 13A-5-40(a)(15), Ala. Code 1975 which makes capital the intentional murder of a child under 14 years of age. The jury recommended that Blackmon be sentenced to death. The circuit court accepted the jury's recommendation.

On August 5, 2005, we affirmed Blackmon's conviction and death sentence in a 41-page opinion. See Blackmon v. State, [Ms. CR-01-2126, August 5, 2005] ___ So. 2d ___ (Ala.Crim.App. 2005). On the same date we released our decision in her case Blackmon's attorney was suspended from the practice of law. Blackmon was appointed new counsel and that attorney was allowed to withdraw when Blackmon retained another attorney. Because of the unique facts presented in this case we allowed newly retained counsel the rare opportunity of filing a brief on rehearing that raised new issues that had not been previously presented to this Court in Blackmon's original brief.¹ See Rule 2(a), Ala.R.App.P.

The State filed a petition for a writ of prohibition in the Alabama Supreme Court attacking this Court's acceptance of a new brief on rehearing. On December 16, 2005, the Alabama Supreme Court by order denied the State's petition for a writ of prohibition. State v. Blackmon [Ms. 1050175]. We now address Blackmon's claims raised for the first time in her rehearing brief.

I.

Blackmon argues that the State violated the United States Supreme Court's holding in Batson v. Kentucky, 476 U.S. 79 (1986), because it used its peremptory strikes in a racially discriminatory manner.² Specifically, she argues that the State failed to strike whites for the same reasons used to strike black prospective jurors; thus, she argues, there is evidence of disparate treatment of veniremembers in violation of Batson.

At trial, the only ground raised to support the Batson motion was the number of strikes the State had used to remove black potential jurors. This specific argument was not made to the circuit court; therefore, we review this claim for plain error. See Rule 45A, Ala.R.App.P.

We have painstakingly reviewed the voir dire examination of the prospective jurors and the juror questionnaires that were completed by the jurors and forwarded to this Court. The State used 18 peremptory strikes to remove prospective jurors. Of those 18 strikes, the State struck 6 black prospective jurors; 2 black jurors sat on Blackmon's jury. Blackmon used all of her 18 strikes to remove white prospective jurors.

Our review of the record shows that the State exercised its strikes to remove the following prospective jurors:

1. Prospective juror number 89, a white male, who noted on his juror questionnaire that he had a felony conviction in the State of California and had served time in prison.

2. Prospective juror number 51, a white female, who indicated on her questionnaire that her son had been convicted of assault and had served time in prison.

3. Prospective juror number 58, a black female, who indicated during voir dire examination that she was opposed to the death penalty.

4. Prospective juror number 47, a black male, who indicated during voir dire that he knew one of the State's witness.

5. Prospective juror number 72, a white male, who indicated that he was not sure that he could sentence anyone to death.

6. Prospective juror 34, a black female, who indicated during voir dire that she knew a relative of the victim's.

7. Prospective juror 17, a black female, who indicated that she had reservations about the death penalty.

8. Prospective juror number 45, a white male, who indicated on his questionnaire that he had served on a prior jury and the jury had rendered a not-guilty verdict.

9. Prospective juror number 83, a white female, who indicated on her juror questionnaire that she could not truthfully state her view on the death penalty.

10. Prospective juror number 71, a white male, who indicated on his questionnaire that his sister had been raped.

11. Prospective juror number 65, a white male, who indicated on his questionnaire that he had been accused of a crime and who answered during voir dire that he would not be comfortable sitting on the case.

12. Prospective juror number 76, a white male, who indicated during voir dire that the movie "The Green Mile" had had an impact on how he views the death penalty.

13. Prospective juror number 63, a white male, who indicated on his juror questionnaire that he had previously been on a jury on a rape case and the verdict had been not guilty.

14. Prospective juror number 28, a white female, who indicated that the movie "The Green Mile" had an impact on her view of the death penalty.

15. Prospective juror number 91, a white female, who indicated that her niece had been murdered.

16. Prospective juror number 21, a black female, who indicated that her son had been convicted of burglary.

17. Prospective juror number 37, a black female, who indicated that her sister-in-law was in prison for a shooting.

18. Prospective juror number 60, a white male who served as an alternate, who indicated on his questionnaire that he knew several members of the district attorney's office.

In Blackmon's brief on rehearing she cites four white prospective jurors who, she argues, were not removed even though they indicated that they had had involvement with law enforcement or that their family members had been involved with law enforcement. She specifically cites prospective jurors 24, 46, 57, and 73.

The record shows that prospective jurors number 24 and 57 were removed by Blackmon's use of her fifth and sixth peremptory strikes. Prospective juror number 46 indicated during voir dire that her nephew was involved in a case handled by the district attorney's office but that the case had not concluded. She also indicated that she had not seen her nephew in a long time and had little information about the pending case concerning her nephew. There is no more information in the record. Prospective juror number 73 indicated that she had been accused of neglect by the Department of Human Resources. However, she also indicated during voir dire that she had been treated fairly and that the matter had been resolved to her satisfaction.

The record also shows that white prospective jurors 89, 51, 65, were removed because of their involvement with the law or a family member's involvement with the law. It appears that every potential juror who indicated that they had been in prison or had a relative who had been or was in prison was removed. Prospective juror number 46 did not indicate that she had a relative who had been convicted of any crime.

The United States Supreme Court in Hernandez v. New York, 500 U.S. 352 (1991), stated the following concerning the deference that we give a trial court's finding on a Batson motion:

"In Batson, we explained that the trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal:

"'In a recent Title VII sex discrimination case, we stated that 'a finding of intentional discrimination is a finding of fact' entitled to appropriate deference by a reviewing court. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). Since the trial judge's findings in the context under consideration here largely turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference. Id., at 575-576.' Batson, supra, [476 U.S.,] at 98, n. 21.

"....

"Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding 'largely will turn on evaluation of credibility.' 476 U.S., at 98, n. 21. In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.' Wainwright v. Witt, 469 U.S. 412, 428 (1985), citing Patton v. Yount, 467 U.S. 1025, 1038 (1984)."

500 U.S. at 364-65 (emphasis added). "'A circuit court's ruling on a Batson objection is entitled to great deference, and we will reverse such a ruling only if it is clearly erroneous.'" Brown v. State, [Ms. CR-01-1900, April 28, 2006] ___ So. 2d ___, ___ (Ala.Crim.App. 2006), (quoting Talley v. State, 687 So. 2d 1261, 1267 (Ala.Crim.App. 1996)). Based on our review of the record we cannot say that the circuit court's ruling was clearly erroneous.

Blackmon also argues that the State violated the United States Supreme Court's holding in J.E.B. v. Alabama, 511 U.S. 127 (1994), by discriminating against jurors based on gender.

This issue is raised for the first time on rehearing; therefore, we review this issue for plain error. See Rule 45A, Ala.R.App.P.

As the Alabama Supreme Court stated in Ex parte Trawick, 698 So. 2d 162 (Ala. 1997):

"A party making a Batson or J.E.B. challenge bears the burden of proving a prima facie case of discrimination and, in the absence of such proof, the prosecution is not required to state its reasons for its peremptory challenges. Ex parte Branch, 526 So. 2d 609 (Ala. 1987); Ex parte Bird, 594 So. 2d 676 (Ala. 1991). In Branch, this Court discussed a number of relevant factors a defendant could submit in attempting to establish a prima facie case of racial discrimination; those factors are likewise applicable in the case of a defendant...