Brooks v. State

• Decision Date: 03 July 1996
• Docket Number: CR-93-0736
• Citation: 695 So.2d 176
• Parties: Christopher Eugene BROOKS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 176

695 So.2d 176

Christopher Eugene BROOKS v. STATE.

CR-93-0736.

Court of Criminal Appeals of Alabama.

July 3, 1996.

Rehearing Denied Aug. 23, 1996.

Virginia A. Vinson, Birmingham, for Appellant.

Jeff Sessions, Atty. Gen., and Steve Willoughby and David Bjurberg, Asst. Attys. Gen., for Appellee.

COBB, Judge.

The appellant, Christopher Eugene Brooks, was convicted of three counts of murder made capital because it occurred during the commission of a robbery, a burglary, and a rape. The appellant was sentenced to death. On appeal from that sentence, he raises five issues.

The evidence at trial showed that the appellant and the victim met while working as counselors at a camp in New York state. On December 31, 1992, the victim's body was found under the bed in the bedroom of her apartment in Birmingham, Alabama. She had been bludgeoned to death, and she was naked from the waist down.

On the night before the victim's body was found, a co-worker of the victim's saw the appellant enter the restaurant where they worked and saw the victim talking to the appellant. Later that night, the victim spoke with another friend by telephone; that friend heard a male voice in the background and the victim told her friend that a friend was sleeping on her living room floor.

A DNA analysis was performed on semen found in the victim's vagina. The results were compared with the appellant's blood. There was testimony that the odds of finding another person with the same DNA as the appellant's and as found in the semen taken from the victim's body would be 1 in 69,349,000 among white persons and 1 in 310,100,000 among black persons. ¹ A latent print of the appellant's palm was found on the victim's left ankle. A bloody fingerprint matching the appellant's was found on a doorknob in the victim's bedroom, as were two other matching latent fingerprints. The appellant's thumbprints were also found on a note in the victim's apartment.

The evidence further showed that the appellant was seen driving the victim's car on the night of December 31 and that he told a witness that he "had to fuck that girl to get that car." The car was found in Columbus, Georgia, where the appellant resided. Inside the car was a package of photographs with the name "Brooks, C." on the package. When the appellant was arrested, he had in his possession the victim's car keys and her Shell Oil Company credit card, which he had used on several occasions. He had also cashed the victim's paycheck and one of her personal checks. Several items were missing from the victim's apartment and the evidence showed that the appellant had pawned these items at various pawnshops in Columbus.

I.

The appellant first contends that the prosecutor improperly remarked upon his decision to remain silent, in violation of his right under the Fifth Amendment to the United States Constitution. However, the remarks the appellant claims are objectionable were made during the prosecutor's rebuttal argument responding to defense counsel's closing arguments. The prosecutor stated:

"Well, have you heard one word in this courtroom since Tuesday morning, one word in this courtroom since Tuesday morning, that causes you to believe there's a reasonable hypothesis of innocence, that is anything except compelling of his guilt, from this evidence proposed to you by [the defense attorney] in argument or otherwise?"

(R. 1006.) The appellant's attorney objected, stating that the prosecutor had improperly commented upon the appellant's exercise of his Fifth Amendment right to remain silent by using the phrase "or otherwise." On appeal, the appellant claims that the term was used intentionally to emphasize that the appellant had not testified. However, the prosecutor has the right to "reply in kind" to arguments made by the defense during its closing. Ex parte Musgrove, 638 So.2d 1360 (Ala.1993), cert. denied, 513 U.S. 845, 115 S.Ct. 136, 130 L.Ed.2d 78 (1994); Davis v. State, 494 So.2d 851 (Ala.Crim.App.1986). Alabama law is well settled that a challenged comment made by a prosecutor must be viewed not in light only of its context during closing arguments, but in light of all the evidence and the arguments heard during trial. Ex parte Musgrove, 638 So.2d at 1368.

In this case, the State's argument focused upon the evidence which was mentioned in the defense's closing but was never used, during the defense's case, to show that a reasonable hypothesis for the appellant's innocence existed. Defense counsel's closing argument focused in part upon the State's "failure" to prove that the defendant was the perpetrator of these crimes. The defense theory relied heavily on the idea that there was a reasonable hypothesis of the defendant's innocence and that the State had failed to dispel that hypothesis. Specifically, defense counsel mentioned several items of evidence found at the scene of the crime which placed other, unidentified persons at the crime scene. Those items were unidentified fingerprints, another male's pubic hair (a sample of which was taken from hair found on the victim's sweatpants), and unidentified semen found on a blanket in the victim's apartment. During rebuttal argument, the prosecutor specifically stated that the defense had never answered the question of whether a reasonable hypothesis for the appellant's innocence actually existed or, if it did, what it could be. That comment did not indicate that the appellant, by failing to testify, had not answered the question. Obviously, no defendant is expected to produce evidence of his innocence. However, in a case such as this, in which the defense theory focuses on the State's failure to counter the defense based on a reasonable hypothesis of the defendant's innocence, it is entirely appropriate for the State to emphasize the appellant's failure to prove that defense.

Further, a prosecutor has the right to indicate to the jury those parts of the evidence or testimony presented by the State that the defense has failed to contradict; that process is not an infringement of the defendant's Fifth Amendment privilege against self-incrimination. Duncan v. Stynchcombe, 704 F.2d 1213, 1215-16 (11th Cir.1983); Ex parte McWilliams, 640 So.2d 1015 (Ala.1993); Griffin v. State, 393 So.2d 523, 528 (Ala.Crim.App.1981). This court agrees with the trial court's finding that the comment at issue was directed toward the entirety of the defense's case, including all the evidence and testimony the defense presented to the jury. The State was simply indicating that the defense, although insisting that a scenario involving another perpetrator existed, never actually offered any evidence of such a scenario. Therefore, this court affirms the trial court's judgment regarding this matter.

II.

The appellant contends that the trial court erred to reversal in denying the appellant's motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). At trial the appellant challenged the prosecutor's peremptory strikes of two black females on the basis of racial discrimination. On appeal, he also challenges the prosecutor's strikes based upon gender discrimination.

Upon the defense's motion, the trial court asked the State to offer race-neutral reasons for its peremptory strikes of the two black jurors. The State offered race-neutral reasons for both strikes (R. 231-33), stating that it struck two black female veniremembers because they were both unemployed, young, and single. The State also noted that it had struck a white male veniremember for the same reasons. The appellant argues that these reasons are not race-neutral, citing Ex parte Bird, 594 So.2d 676 (Ala.1991), and Carter v. State, 603 So.2d 1137 (Ala.Crim.App.1992). However, Bird holds that employment status and age are improper considerations if they are the sole basis for a strike; Carter holds the same regarding employment status. The prosecutor in this case offered other reasons for striking the veniremembers in question, e.g., their marital status (single), their lack of stability, and their lack of "life experience," all of which are valid considerations.

The United States Supreme Court, in Purkett v. Elem, 514 U.S. 765, ----, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995), held that once the prosecutor offers a neutral reason for striking a juror, the trial court must decide whether the reason proffered is a mere pretext for purposeful discrimination. The Alabama Supreme Court has held that a circuit court's decision in this matter is entitled to great deference; thus our appellate courts will reverse the circuit court's judgment based on a Batson issue only where the trial court's decision is clearly erroneous. Ex parte Thomas, 659 So.2d 3, 7 (Ala.1994). We find that the trial court's denial of the appellant's Batson motion was not clearly erroneous.

The appellant also argues on appeal that the prosecutor engaged in gender discrimination in his strikes, citing J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), which extended Batson to include gender discrimination. Because this issue is raised for the first time on appeal, it is reviewable only under the plain error rule. Ala.R.App.P. 45A. A failure to object weighs heavily against a finding of prejudice. Williams v. State, 601 So.2d 1062 (Ala.Crim.App.1991). The appellant fails to state how the prosecutor engaged in gender-based discrimination, thus his allegation is a baseless, bare assertion. This court sees no evidence of gender-based discrimination in the record; thus there is no plain error.

Finally, the appellant argues that the prosecutor discriminated against veniremembers based upon their employment status. The appellant attempts to extrapolate from the reasoning used by courts to condemn gender discrimination to argue that discrimination based upon the fact that one is unemployed is likewise condemned. However, unemployment is not among those classifications subject to...