Bradford v. State

• Citation: 734 So.2d 364
• Parties: Jay BRADFORD v. STATE.
• Decision Date: 05 February 1999
• Court: Alabama Court of Criminal Appeals

734 So.2d 364

Jay BRADFORD v. STATE.

CR-97-0538.

Court of Criminal Appeals of Alabama.

February 5, 1999.

Rehearing Denied March 26, 1999.

Jeb Stuart Fannin, Talladega, for appellant.

Bill Pryor, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.

PATTERSON, Retired Appellate Judge.

The appellant, Jay Bradford, was indicted on June 25, 1997, by the Talladega County grand jury for the attempted murder of Mike Smith. Ala. Code 1975, §§ 13A-6-2 and 13A-4-2. At arraignment, the appellant pleaded not guilty; he was subsequently found guilty by a jury. After a sentencing hearing, the trial court, among other things, sentenced him to 50 years' imprisonment and ordered him to pay a $5,000 fine. The trial court retained jurisdiction for 30 days of the question of restitution. The appellant raises four issues.

The state's evidence tended to show the following. The appellant and his companions, Ronnie Buckner, Arthur Bradford (hereinafter referred to as Bradford), Anthony Arnold, and Corey Watkins traveled from Sylacauga to Alexander City on the evening of February 22, 1997, in Bradford's girlfriend's automobile, to visit a nightclub; all of them were drinking, smoking marijuana, and at least one was "snorting" cocaine. The appellant's loaded SKS rifle, a 7.62 × 39mm, Russian-military-type weapon, was in the trunk of the automobile, placed there by the appellant. After they had been in the nightclub for several hours, a fight "broke out" and in the melee the appellant was cut on the arm. The appellant and his companions then left the club. In the parking lot of the club, the appellant took his rifle out of the trunk of the automobile and began threatening people with it and firing into the air. The group then got in the automobile and headed back to Sylacauga. On the way, they resumed their drinking and use of narcotics; the appellant was sitting in the rear seat of the automobile, directly behind the driver and he was holding his rifle between his legs. As the automobile entered Sylacauga, Sergeant Steve Vickers and Officer Mike Smith of the Sylacauga Police Department, who were in a patrol car, observed that it was speeding and they gave chase. After considerable pursuit, the automobile stopped and Arnold and Watkins jumped out and ran. As the officers approached the automobile, the appellant got out of the automobile on the driver's side with the rifle, and before he ran, he fired several times at Officer Smith; the bullets struck him in the chest, arm, and ankle, severely wounding him. Bradford and Buckner remained at the scene.

The appellant did not testify in his defense, but called several witnesses in an effort to cast doubt upon the state's evidence.¹

I.

A.

The appellant first contends that the trial court committed reversible error in overruling his motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in which he claimed that the state exercised certain peremptory jury strikes in a racially discriminatory manner. In overruling the motion, the trial court found that the appellant had failed to establish a prima facie case of racial discrimination. In Batson, the United States Supreme Court held that black prospective jurors could not be struck from a black defendant's jury based solely on their race. The appellant is black.²

The state has the burden of articulating nondiscriminatory reasons for challenged strikes only after the defendant meets his burden of establishing a prima facie case of discrimination. Batson, 476 U.S. at 97, 106 S.Ct. 1712. And, until that burden is met, the state is under no obligation to offer explanations for its peremptory strikes. Edwards v. State, 628 So.2d 1021 (Ala.Crim.App.1993); Jackson v. State, 594 So.2d 1289 (Ala.Crim.App.1991). In determining whether a prima facie case of racial discrimination has been established, the trial court is to consider all relevant circumstances that could lead to an inference of discrimination. Its determination on whether a prima facie case of racial discrimination has been established is to be accorded great deference on appeal. Ex parte Branch, 526 So.2d 609 (Ala.1987); Boyd v. State, 715 So.2d 825 (Ala.Crim.App.1997), aff'd, 715 So.2d 852 (Ala.1998). Its finding that a defendant did not present a prima facie case of discrimination under Batson is reviewed under a "clearly erroneous" standard. Wilson v. State, 690 So.2d 449 (Ala.Crim.App. 1995), aff'd in part, quashed in part, 690 So.2d 477 (Ala.1997).

In the instant case, the record shows that the prosecutor used 2 of its 10 peremptory strikes to strike 2 of the 5 black veniremembers. Three blacks served on the jury. The appellant relied only on the bare numbers or statistics to support his Batson motion; he offered no additional supporting evidence. The numbers alone, in this case, will not support a reasonable inference of racial discrimination. The appellant asserts in his brief, in support of his contention on appeal, that the prosecutor used his peremptory strikes to remove a majority of the blacks from the jury panel. The record does not support this assertion. Originally there were seven blacks on the jury venire. Two were properly excused for cause on motion of the state: one for being related to the appellant, and one for stating that, if she were selected, she could not render a fair and impartial verdict based solely on the evidence presented and the court's instructions. The appellant did not object to the granting of these challenges. Of the five blacks remaining, the prosecutor removed two by peremptory strikes and the remaining three served on the jury that tried the case.

All relevant evidence may be examined by the trial court, including the numbers involved, to determine whether an inference of discrimination has been raised. However, "[w]hen considered alone, evidence of the prosecution's use of a large number of its peremptory strikes to exclude black jurors would allow, but would not compel, a finding of prima facie discrimination." Mines v. State, 671 So.2d 121, 123 (Ala.Crim.App.1995). See also Ex parte Thomas, 659 So.2d 3 (Ala.1994). Even if the prosecution uses all of its peremptory strikes to exclude black veniremembers, a trial court is not required to find a prima facie case of discrimination if other relevant evidence proves the contrary. Mines v. State.

In the instant case, the appellant obviously failed to meet his burden; thus the trial court's ruling that no prima facie case had been established was not clearly erroneous.

B.

The appellant further contends that the trial court committed reversible error by granting the state's motion made pursuant to Batson, J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), and White Consolidated Industries, Inc. v. American Liberty Insurance Co., 617 So.2d 657 (Ala.1993), in which it claimed that the appellant exercised his peremptory strikes in a racially and gender-based discriminatory manner. The appellant argues that the trial court erred in failing to require the state to establish a prima facie case of discrimination before requiring him to explain his strikes. The record shows that of the appellant's 10 peremptory strikes, he struck 9 white males and 1 female. The record does not disclose the race of the female. The trial court granted the state's motion and ordered the appellant to explain his strikes. The appellant explained his strikes, and the trial court found that his explanations were sufficient and that his reasons were race- and gender-neutral. We find no error here. The ultimate ruling was favorable to the appellant; he suffered no injury. Even if the trial court erred in failing to require the state to make a prima facie showing of racial and gender-based discrimination before requiring the appellant to explain his strikes, and we do not necessarily agree that that is the case, it would be error without injury in this instance. While the trial court did not give its reasons for finding a prima facie case, it could have reasonably concluded that the striking of 9 white males out of 10 peremptory strikes raised an inference of racial and gender-based discrimination under Batson, J.E.B., and White Consolidated Industries, Inc.

II.

The appellant contends that the trial court violated Rule 16.1(b)(1) and (2), Ala.R.Crim.P., "by holding that he was not entitled to accomplice statements prior to the trial of the case," thereby allegedly committing reversible error. He argues that the failure of the state to furnish him the statements of Bradford, Buckner, and Arnold until they were called to the witness stand by the state to testify at the trial was "fundamentally unfair to the defense" and constituted a denial of due process. Rule 16.1 provides that upon written request of a defendant, the prosecutor shall, within 14 days after the request has been filed in court, disclose to the defendant the substance of any oral statement and permit the defendant to inspect and copy any written or recorded statements of a codefendant or accomplice in the possession of or under the control of the state and which the state intends to offer in evidence at trial. The appellant filed a pretrial discovery motion seeking, among other things, any statements by any accomplice or codefendant, whether oral, written, or recorded, in the possession of the state and which the state intended to use at the trial. The state contends that this issue was not preserved for appellate review because no objection was made on these grounds at trial. We agree. The appellant objected at trial to the use of the statements by the state only on the ground of hearsay. The trial court cannot be placed in error on grounds not asserted, and those not asserted are waived. Jackson v. State, 553 So.2d 647 (Ala.Crim.App. 1989); Johnson v. State, 421 So.2d 1306 (Ala.Crim.App.1982).

Moreover, the trial court examined the statements in camera and held that the...