Bui v. State

• Decision Date: 01 May 1992
• Docket Number: 3 Div. 557
• Citation: 627 So.2d 849
• Parties: Quang Ngoc BUI v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 849

627 So.2d 849

Quang Ngoc BUI v. STATE.

3 Div. 557.

Court of Criminal Appeals of Alabama.

May 1, 1992.

Rehearing Denied June 12, 1992.

PATTERSON, Presiding Judge.

The appellant, Quang Ngoc Bui, was convicted on June 12, 1986, of the capital offense of the murder of his three children. He was sentenced to death by electrocution for this conviction. The conviction and sentence were affirmed by this court on April 12, 1988, Bui v. State, 551 So.2d 1094 (Ala.Cr.App.1988), and our supreme court affirmed on July 14, 1989, Ex parte Bui, 551 So.2d 1125 (Ala.1989). However, on April 22, 1991, the United States Supreme Court vacated this latter judgment and remanded the case for further consideration in light of Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Bui v. Alabama, 449 U.S. 971, 111 S.Ct. 1613, 113 L.Ed.2d 712 (1991). Thereafter, pursuant to our supreme court's directive of July 12, 1991, Ex parte Bui, 627 So.2d 848 (Ala.1991), this court remanded this case to the trial court with the instruction that the trial court hold a hearing on the state's use of its peremptory strikes. Bui v. State, 627 So.2d 849 (Ala.Cr.App.1991).

Proceedings were held in the trial court pursuant to this remand on September 19, October 1, and October 2, 1991. In the proceedings of September 19, the state, through Ms. Ellen Brooks, ¹ notified the court that the prosecution's files containing the notes of the prosecutors had not been found. Ms. Brooks indicated that these notes were "our personal things where we noted things from observing the jury and hearing the voir dire and that kind of thing." A continuance, at the prosecution's request, was granted to October 1. On that date, the hearing was rescheduled for the following day because of Bui's absence.

Evidence and argument presented during the September 19 and October 2 hearings established and the trial court found that the prosecution used 9 ² of its 13 peremptory strikes to exclude blacks from jury service (the last strike designating a white male as the second alternate); and that 1 black served on the jury. The record further shows that the defense used one of its strikes to eliminate a black. The trial court further found that a total of 15 blacks were on the venire. (This finding is not supported by any evidence in the record before us.) The record shows definitely that two blacks were struck for cause on the prosecution's challenge; it fails to show what happened to the remaining three black venirepersons.

During the October 2 hearing, the prosecution implied that, because it had not found its files, it reconstructed its reasons for its strikes from a review of that portion of the trial transcript showing the voir dire, a review of "an occupation strike list," and a review of "criminal histories" on the venirepersons. Ms. Brooks noted that unavailable at the hearing, but available at the time of jury selection, were notes by the witnesses and employees about the veniremembers and also personal notes of observations on and comments made by the venirepersons. Ms. Brooks explained that generally the prosecution struck primarily on four grounds: (1) any criminal history; (2) knowledge of the defense attorneys, of Bui, or of any members of their families; (3) unemployment, i.e., the status of being employed, retired, or fulltime student was desirable; and (4) young in age. In regard to the last consideration, Ms. Brooks explained the following:

"We were looking for people who had some maturity, some experience in life, who were old enough perhaps to have children, since this involved the death of three children, who perhaps had had marital problems, since this apparently was triggered or involved the defense of a relationship between the defendant and his wife, and the defense we anticipated would bring out, and did bring out, some difficulties between the two of them. We were looking for people who had made decisions in life such as, you know, to get married, to take a job, to make job decisions, to make decisions on how to raise their kids. People who had some maturity."

(We note that the trial court, at voir dire examination of the venire, denied the prosecution's request that the veniremembers be asked whether any member had children.)

Thereafter, the prosecution gave the following specific explanations of its striking of black persons. The first strike was exercised to exclude a 24-year-old black female on the grounds that she had a "extensive criminal history" with 9 convictions or charges and that she was 24 years old. During questioning of the venire, this venireperson represented that she was employed by the Montgomery Board of Education. The second strike excluded a 20-year-old black female on the grounds that she had been arrested for harassment within the year preceding Bui's trial and that she was of a young age. The third strike excluded a 32-year-old black female for the following reasons: (1) she was of a "youthful age"; (2) she "had appeared as a witness in grand jury"; and (3) she lived on North Caffey Drive, alleged to be known for its "problems with drugs." Ms. Brooks found this latter ground to be significant because a potential state's witness was "the narcotics commander at that time who was known at Caffey Drive and elsewhere as being involved in drug work"; because there existed an allegation that Bui's wife "had planted drugs in an attempt to frame her husband," so "drugs therefore [were] involved in this case"; and because two "well publicized" cases prosecuted by Ms. Brooks involved the prosecution of a defendant who "was known to sell and deal in drugs" on Caffey Drive. In regard to her appearance before the grand jury, this venireperson explained, during questioning of the venire, that her appearance had been 10 years ago and that she had been called by the state. The prosecution's fourth strike excluded a 24-year-old black male who was struck because of his age, because he was unemployed, and because he had been arrested for trespassing in the year preceding the trial. (Bui's attorney asserted that, according to his notes, this venireperson was an instructor at J. F. Ingram Technical College.) The prosecution's fifth strike excluded a 21-year-old black male because of his age. The sixth strike excluded a 26-year-old black female primarily because of age and, also, because she resided on a street "highly known for drug dealings." The eighth strike was exercised to exclude a 45-year-old black female because she was unemployed and because, while she professed to know the above-mentioned narcotics officer who was a potential state witness, the officer, when reviewing the venire list, did not indicate that he knew her ³ and, thus, "[Ms. Brooks] was not sure how she knew him." This venireperson, however, during voir dire examination, clearly explained that this officer was a member of her church. The state's eleventh strike excluded a 40-year-old black female "who was a seamer (sic)." In explaining this strike, Ms. Brooks stated the following:

"My notes do not indicate any criminal history. I can only tell the Court that I knew she lived on Kelly Lane. I cannot tell the Court what significance that has at this time without my notes or Mr. Evans's notes. I cannot recall at this time any of the personal information that we had about [her] or why we struck her other than she was forty years of age. That's all I can tell the Court on Number 72."

The state exercised its twelfth strike to exclude a 46-year-old black female who was unemployed. At the conclusion of giving reasons for the prosecution's strikes, Ms. Brooks explained, "With the notes that we do not have because the files have been lost, there may well could be other reasons, Your Honor, that we took into consideration for striking or not striking certain jurors."

On January 23, 1992, another hearing was held after this court's remand pursuant to the state's request for a hearing to present "the most accurate evidence on the issue of jury selection" by offering its reasons based on actual trial notes which, by this time, had been discovered. During this hearing and contrary to her assertion in the October 2 hearing, Ms. Brooks disclosed that the discovered files contained no notes belonging to Mr. Jimmy Evans, who, she again asserted, "was the lead trial counsel and [who] actually struck the [jury]," but her notes were available. Ms. Brooks further explained that, upon comparing her notes with her reasons given in the October hearing, she "found that [the reconstruction of reasons as given in the October hearing] was a good reconstruction" and that she "found more reasons to strike the [potential] jurors," so she asked to adopt each reason previously given "as now backed up by the notes" and to offer additional reasons. She stated that, according to her notes, an additional reason for the prosecution's exercise of its first, second, third, and fifth strikes was that the venirepersons were single; that its fourth strike was also exercised because the venireperson was single and in school at the time; and that its sixth strike was also exercised because the venireperson was single, unemployed, and "weak voiced."

After the October 2 hearing, the trial court held the following:

"After hearing and considering the legal argument and factual data presented in this hearing, which the record shows, the Court finds that the State has articulated clear, cogent, and sound reasons for its peremptory strikes, all being racially neutral. Thus, the Court finds that Bui has failed to make a case that convinces this Court that this is a case of discriminatory or disparate action by the State in using its peremptory strikes to remove black veniremembers from the petit jury that tried this case."

In the court's order issued after the January 23 hearing, the court again found that the prosecution did not violate Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90...