Butler v. State

• Decision Date: 05 March 1970
• Docket Number: 7 Div. 690
• Citation: 232 So.2d 631,285 Ala. 387
• Parties: Robert BUTLER v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 631

232 So.2d 631

285 Ala. 387

Robert BUTLER v. STATE of Alabama.

7 Div. 690.

Supreme Court of Alabama.

March 5, 1970.

Oscar W. Adams, Jr., U. W. Clemon, Demetrius C. Newton, Birmingham, Norman C. Amaker and Jack Greenberg, New York City, for appellant.

MacDonald Gallion, Atty. Gen., and Herbert H. Henry, Asst. Atty. Gen., for the State.

McCALL, Justice.

This case was argued orally before the entire court and was submitted on several motions and on the merits for a decision.

The appellant, a Negro male of mature adult age, was indicted for the rape of an unmarried white woman twenty years of age. He was tried and convicted by a jury which fixed his punishment at death.

An appeal was entered on behalf of the appellant at the conclusion of the trial by the court ex meru moto under the Automatic Appeal Act, Act No. 249, § 10, General Acts of Alabama, Regular Session, 1943, p. 217 et seq. Therefore we will consider carefully all of the evidence, even though no lawful objection or exception may have been made thereto, in order to determine if any testimony that was seriously prejudicial to the rights of the appellant was admitted, and whether the verdict of guilty is so decidedly contrary to the great weight of the evidence as to be wrong and unjust. No assignment of error is necessary to raise such questions. Tit. 15, § 389, Code of Alabama, 1940.

The evidence at the trial was that on the night of August 26, 1964, the victim was parked in an automobile with her date, a young man nineteen years of age. The location was on the hard surfaced recessed area of the wide shoulder adjoining the public highway coming off Lookout Mountain toward the city of Gadsden. It was in a heavily wooded section where there were no houses. While seated in the automobile around 11:15 p.m., four Negro men suddenly confronted the couple. One in the group of Negroes held a pistol at the neck of the young man and ordered him to get out of the automobile, which he did. As he straightened up after getting out, he was struck in the jaw and knocked across the automobile. Then he was dragged off the crest of the mountain about thirty feet where he was held subdued at pistol point, being threatened with death from time to time. The woman was dragged from the automobile by one of the men who put one arm around her mouth to muffle her cries, and the other around her waist to pull her with him. While she was resisting her captors, she tripped and fell down the embankment from where the automobile was parked. There she first was sexually assaulted by the man who dragged her from the automobile. She identified the appellant, an older man, as the one who tore her clothes from her person and struck her in th face some three times before raping her. He held her down on the ground while the first Negro sexually assaulted her. The appellant then sexually assaulted her. Following these attacks, the first assailant then sexually assaulted her a second time. After this, a third Negro man in the group raped her. After about forty-five minutes, these attacks were completed and the group of Negroes ran into the woods. The victim made her way up the mountain and walked for some distance to the home of a married couple. She appeared there crying and in a highly emotional state, asking for help. She complained to this couple of being sexually attacked. That same night, about two hours later, she was examined by a physician who obtained a specimen of secretion from the reproductive organs of the victim's person. A microscopic examination of this specimen revealed the presence of multiple male spermatozoa, as well as large quantities of blood. The woman testified that on the night of the attacks, the moon was real bright, that she could see well, and that she could see the appellant. She identified him in a police line-up two days after the rape as being the second man who ravished her on the occasion. Five or six line-ups were held with about five men in each line-up. She picked the appellant out of the last one. Her companion made a voice identification of the appellant, after the latter repeated phrases he was given to speak. He also identified the appellant by the appearance of his hands and bare chest. The appellant sought to establish by several witnesses as an alibi that on the night in question they had seen him at particular times and at places so distant from the scene that he could not have been present when the crime occurred about 11:15 p.m.

In the appellant's motion to quash the indictment and the amendments to the motion, his stated grounds are that Negroes were systematically excluded from the jury rolls and from the grand jury that indicted him on February 12, 1965, and that the said grand jury was not organized in accordance with the Supreme Court decisions, relating to Negro participation on state grand juries, all of which he contends were in violation of his constitutional rights, also that women were excluded from the grand jury and the petit jury, further, that Negroes were systematically included on the jury rolls and in the jury box of the county, and finally, that infliction of the possible death sentence upon conviction would constitute cruel and inhuman punishment. This motion was denied by the court and the ruling is now before us for review.

Appellant implies by the allegations in his said motion, that the jury box must be filed with all of the qualified Negro male population in the county of twenty-one years and over. Such contention is not supported by the decisions of this court or of the courts of the United States. Fikes v. State, 263 Ala. 89, 81 So.2d 303, rev'd on other grounds 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246. Nor is a defendant in a criminal case entitled to demand a proportionate number of his race on the jury which tries him, nor on the venire or jury roll from which petit juries are drawn. Swain v. State, 275 Ala. 508, 156 So.2d 368, aff'd 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759, reh. den. 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442.

While very decided variations in proportions of Negroes and whites on jury lists from racial proportions in the population, which are not explained and are long continued, have been held to furnish sufficient evidence of systematic exclusion of Negroes from jury service, the United States Constitution does not require an exact proportion between the percentages of Negroes in the population and of those on the jury list, nor does it require that any particular panel of jurors in a criminal trial include members of the race of the accused person. Swain v. State, supra, Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692. It is required, however, that no qualified person be excluded from jury service because of race. Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. 'Excluded' means a systematic, purposeful non-inclusion based solely on race. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839.

The burden of proof is on the person attacking selection procedure to show 'the existence of purposeful discrimination' by the exclusion of Negroes on account of race from jury participation. Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, Fay v. People of State of New York, 332 U.S. 261, 285, 67 S.Ct. 1613, 1626, 91 L.Ed. 2043. Purposeful discrimination may not be assumed or merely asserted. It must be proved. Swain v. State, supra. In the case at bar, there was no evidence introduced at the hearing or during the trial, that we can find from reading the record, which shows that the jury was not drawn from a fair cross section of the community, or which shows the variation, in percentages, between Negroes and whites on the jury list of the county. The motion to quash alleges that according to the 1960 Federal Census, the male population in Etowah County, twenty-one years and over, was 84.6 percent white and 15.4 percent Negro. The appellant states that the jury rolls contain less than five percent of the names of the total of the Negro males eligible for jury duty, but he neither alleges or proves anything with respect to what percent of the eligible white male population is on the jury roll, so that the variation in proportions of Negroes and whites on jury lists from racial proportions in population can be ascertained. We therefore find that the appellant failed to meet the burden of proof cast on him to establish discrimination. Swain v. State, supra, 16A C.J.S. Constitutional Law § 540, pp. 467--474. This ground of appellant's motion to quash the indictment was properly overruled. Taylor v. State, 249 Ala. 130, 30 So.2d 256; Shine v. State, 44 Ala.App. 171, 204 So.2d 817; 24 A C.J.S. Criminal Law § 1787, p. 360.

Next appellant argues that he was deprived of due process of law and the equal protection of the law as guaranteed by the United States Constitution because women were excluded from the grand jury that indicted him and from the petit jury that tried him on April 13 and 14, 1965. This question has already been decided adversely to the appellant in our decisions of Philpot v. State, 280 Ala. 98, 190 So.2d 291, and Beverely v. State, 281 Ala. 325, 202 So.2d 534, which hold that a defendant in a criminal case who is not a member of the group which he contends has been illegally excluded from jury service, is in no position to say that he has been denied a jury of his peers. In addition, White v. Crook, D.C., 251 F.Supp. 401, holding unconstitutional the Alabama statute excluding women from jury service, was not decided until February 17, 1966, which was after the appellant's trial and conviction. The court expressly provided in that decision that it should have no retrospective effect. Taylor v. State, 282 Ala. 673, 213 So.2d 836; Swain v. State, Ala.Sup., 231 So.2d 737 (decided February 5, 1970); Juelich v. United States, 5 Cir., 403 F.2d 523.

The appellant complains that the trial court abused...