Campbell v. State, CR-95-2010

CourtAlabama Court of Criminal Appeals
Writing for the CourtCOBB
Citation709 So.2d 1329
PartiesJohnny Wayne CAMPBELL v. STATE.
Docket NumberCR-95-2010
Decision Date22 August 1997

Page 1329

709 So.2d 1329
Johnny Wayne CAMPBELL
Court of Criminal Appeals of Alabama.
Aug. 22, 1997.
Rehearing Denied Oct. 17, 1997.
Certiorari Denied Jan. 23, 1998
Alabama Supreme Court 1970166.

Page 1331

Kimberly J. Dobbs-Ramey, Decatur, for appellant.

Bill Pryor, atty. gen., and J. Elizabeth Kellum, special deputy atty. gen., for appellee.

COBB, Judge.

Johnny Wayne Campbell appeals from his conviction for theft of property in the second degree, a violation of § 13A-8-4, Ala.Code 1975, and his sentence of life imprisonment as a habitual offender. The State's evidence tended to show the following. On April 20, 1994, Campbell stole a television from a Decatur home center store, hurriedly placed it in a vehicle, and rode away in the vehicle. Two witnesses reported the theft and gave the vehicle's license plate number to store personnel. The police were summoned. Later the same day, Campbell was found at the residence of Cornell Wiggins; Wiggins consented to a search of the house and the stolen television was recovered inside the house. Campbell was arrested and later confessed to taking the television. Campbell raises nine issues for this court's consideration.


Campbell argues that the trial court erred in denying his motion to set aside his conviction in which he alleged discrimination in the selection of the grand jury foreperson. The trial court denied the motion after the State argued that it was untimely filed. The trial court's denial was proper. Objections based on alleged defects in the commencement of proceedings, other than lack of subject matter jurisdiction or failure to charge an offense, must be raised before trial. Rule 15.2, Ala.R.Crim. P. The failure to present the objection in a timely fashion constitutes a waiver. Rule 15.2(c), Ala. R.Crim. P. Campbell's attempt to avoid the waiver on grounds that this court's decision in Pace v. State, [Ms. CR-93-740, Sept. 27, 1996] --- So.2d ---- (Ala.Cr.App.1996), was a drastic departure from established law, fails because Pace discussed 1993 decisions regarding proof of discrimination in the selection of grand jury forepersons. Lee v. State, 631 So.2d 1059 (Ala.Cr.App.1993); Locke v. State, 631 So.2d 1062 (Ala.Cr.App.1993). Further, Campbell cited these same precedents in his motion to set aside his conviction.

This claim must fail.


Campbell next argues that the trial court erred in denying his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion, which he made after the prosecution struck a black female from the venire. When Campbell made his Batson motion at trial, he stated only that he saw no reason for the State's strike except race and that the veniremember shared traits with others who were left on the jury. The trial court determined that Campbell failed to prove a prima facie case and denied the motion. We agree with the trial court.

A party making a Batson 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). In Branch, the Alabama Supreme Court discussed several factors a defendant could use in support of its Batson

Page 1332

challenge, including, for example, evidence that the jurors in question shared only the characteristic of race, a pattern of strikes, and the type and manner of the voir dire examination by the prosecution. Campbell offered virtually nothing. Campbell merely stated that the prosecutor used one of an unknown number of peremptory strikes against a black veniremember. There is no evidence in the record of the racial composition of the venire or the jury. Nor does the record show how the prosecutor used his remaining challenges.

Ex parte Branch, supra, held that the trial court's determination of whether a defendant established a prima facie case of discrimination is due great deference. In light of the record before us and the relevant caselaw, we find no abuse of discretion in the trial court's denial of Campbell's Batson motion.


Campbell argues that the trial court erred when it admitted his confession into evidence, because, he says, he was under the influence of crack cocaine when he confessed and was afraid of the officer to whom he confessed. Thus, he argues, his statement was involuntary. The State contends that it was properly admitted and that the trial court's denial of Campbell's motion was not contrary to the great weight of the evidence. We agree with the State.

" 'In determining whether a confession is voluntary, the trial court's finding of voluntariness need only be supported by a preponderance of the evidence. The trial court's decision will not be disturbed on appeal unless it is manifestly contrary to the great weight of the evidence. " 'The test for the voluntary nature of an extrajudicial confession or inculpatory statement is whether in light of all the surrounding circumstances, the statement was free from inducement, threat or promise, either expressed or implied, which would have produced in the mind of the accused any fear of harm or hope of favor.' "...'

"Whether a waiver of Miranda rights is knowingly and intelligently made depends on the facts of each case, considering the totality of the circumstances surrounding the interrogation, including the characteristics of the accused, the conditions of the interrogation, and the conduct of the law enforcement officials. The question whether a confession is knowing and voluntary is a question of law for the trial court, and the trial court's finding on that issue will not be reversed on appeal unless it is contrary to the great weight of the evidence or is manifestly wrong."

Harris v. State, 705 So.2d 542 (Ala.Cr.App.1997) (citations omitted).

In this case, the arresting officer, who had had previous contacts with Campbell, testified that he observed nothing that indicated that Campbell was under the influence of alcohol or any drug when he first spoke with him or when he questioned him one and one-half hours later at the police station. The officer also testified that he read Campbell his Miranda rights and that Campbell signed the rights form before he gave a statement. Finally, the officer stated that he did not threaten or coerce Campbell or offer him a reward for his statement.

Based on the evidence presented, we find that the trial court's finding that Campbell's statement was knowingly and voluntarily given was not contrary to the great weight of the evidence or...

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