Christianson v. State

• Decision Date: 12 June 1992
• Citation: 601 So.2d 512
• Parties: Michael CHRISTIANSON v. STATE. CR 91-292.
• Court: Alabama Court of Criminal Appeals

Page 512

601 So.2d 512

Michael CHRISTIANSON v. STATE.

CR 91-292.

Court of Criminal Appeals of Alabama.

June 12, 1992.

Charles Amos Thompson, Birmingham, for appellant.

James H. Evans, Atty. Gen., and J. Randall McNeill, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Michael Christianson, the appellant, was convicted of attempted murder and robbery in the first degree and was sentenced to life without parole as an habitual felony offender. Through appointed counsel, he raises three issues on this appeal from those convictions. In a pro se brief, the appellant raises seven additional issues.

I.

There was no violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The record does not reflect the number of blacks who served on the jury. However, there were 12 blacks on the 27-member jury venire. The State used five of its seven strikes to remove the five black females from that venire. The defense struck six white males. There is no indication of how the defense used its seventh strike. Therefore, there must have been either six or seven blacks on the jury. The voir dire is not contained in the record. While blacks constituted 44% of the venire, they composed either 50% or 58% of the jury.

One black was struck because she "felt [she] ha[d] seen" the appellant, although she could not remember where. R. 26-27. The other four blacks were struck because they were either single, unemployed, ¹ watched "soap operas," ² or a combination of these factors. The State struck white jurors with those same characteristics. There is no evidence of disparate treatment. The prosecutor did not strike anyone who owned a handgun, ³ and mentioned that he intentionally did not strike one black who was single based on that veniremember's ownership of a handgun. R. 38. The prosecutor stated: "The primary considerations are unemployed, single, plus for handgun [ownership], minus for soap opera. And the two specific people, the [white] lady who knew everybody and the [black] lady who knows the defendant's face." R. 41.

After the prosecutor stated his reasons, the trial judge found that "there appear to be commonalities among the white folks he struck and the black folks, based upon the reasons he just outlined. And as he said, you [defense counsel] reached some of the folks he might have struck. I am going to hold he did not strike any black juror for a racial reason...." R. 41.

The prosecutor's reasons, at least facially, are extremely weak. In Ex parte Bird, 594 So.2d 676, 682-83 (Ala.1991), the Alabama Supreme Court made the following observation:

"[W]e realize that in certain cases age may serve as a legitimate racially neutral reason for a peremptory strike.... However, the age rationale is highly suspect because of its inherent susceptibility to abuse.... A mere summary declaration that age was a factor in the decision to strike is, therefore, constitutionally deficient and warrants reversal." ⁴

We place "unemployment" and "single" in the same "highly suspect" category as "age."

However, in this case, there are other factors that defeat any showing of racial discrimination in the selection of the jury. There is no claim or evidence of disparate treatment, and there is evidence that the prosecutor struck every veniremember who was single, unemployed, or watched soap operas, regardless of race, unless there was a reason not to. Just as "disparate treatment furnishes strong evidence of discriminatory intent," Ex parte Bird, 594 So.2d at 681, comparable treatment tends to rebut the existence of discriminatory intent. See McGahee v. State, 554 So.2d 454, 462 (Ala.Cr.App.), affirmed, 554 So.2d 473 (Ala.1989) (although State's explanation for striking black veniremember was "somewhat weak," it was found "sufficient because the State struck a white juror for the same reason"); Ward v. State, 539 So.2d 407, 408 (Ala.Cr.App.1988) (wherein this court, citing Ex parte Branch, 526 So.2d 609 (Ala.1987), observed that "action in which non-black jurors have been challenged for the same or similar characteristics as black jurors who are struck has been deemed to be indicative of neutrality and is evidence which tends to overcome the presumption of discrimination"); Mathews v. State, 534 So.2d 1129, 1130 (Ala.Cr.App.1988) (State's striking both black and white veniremembers who were young and single did not, under particular facts, constitute a Batson violation); Smith v. State, 531 So.2d 1245, 1248 (Ala.Cr.App.1987) (no discriminatory intent evident from strikes of white females and black females "for ... similar reasons"); Funches v. State, 518 So.2d 781, 783 (Ala.Cr.App.1987) (no racial animus found when State struck both blacks and whites who were unemployed); Shelton v. State, 521 So.2d 1035, 1037-38 (Ala.Cr.App.1987) (same), cert. denied, 521 So.2d 1038 (Ala.1988).

The State intentionally left one black on the jury who was single but who owned a handgun. The prosecutor's failure to exercise a challenge for that juror demonstrates that he was acting in conformity with his previously-explained "rating system" for jurors. If counsel states that he has a plan or strategy for striking jurors, then "the challenges exercised must be consistent with that strategy." Patton, The Discriminatory Use of Peremptory Challenges in Civil Litigation: Practice, Procedure, and Review, 19 Tex.Tech.L.Rev. 921, 973 (1988). Here, all of the State's peremptory strikes were consistent with the prosecutor's rating system. There is no evidence that this system was a " 'convenient talisman[ ] transforming Batson's protection against racial discrimination in jury selection into an illusion and the Batson hearing into an empty ceremony.' " Ex parte Bird, 594 So.2d at 682, (quoting C.E.J. v. State, 788 S.W.2d 849, 857 (Tex.App.1990).

In addition, either 50% or 58% of the jury members were black.

"A defendant must offer some evidence in addition to the striking of blacks that would raise an inference of discrimination. When the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created. Logically, if statistical evidence may be used to establish a prima facie case of discrimination, by showing a discriminatory impact, ... then it should also be available to show the absence of a discriminatory purpose."

Harrell v. State, 571 So.2d 1270, 1271-72 (Ala.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991).

"To be sure, the fact that a larger percentage of black veniremembers eventually is seated on a jury raises less suspicion than if a smaller representation is seated and affords less support for a prima facie case of discrimination.... In fact, a large representation might afford the defendant no support at all and could even weaken his prima facie case should he be able to establish one on other grounds."

Ex parte Bird, 594 So.2d at 680-81.

The appellant's claim of racial discrimination was based only on the number of black veniremembers removed by the State. Under the reasoning in Harrell and in Ex parte Bird, the appellant did not present a prima facie case of discrimination. However, the trial judge listened to the State's reasons for its strikes and did not overrule the Batson objection on the ground that no prima facie case had been made. In other cases, we have reviewed the sufficiency of the State's reasons when they are of record and the trial court's ruling is not based on the failure to establish a prima facie case. See, e.g., Jackson v. State, 594 So.2d 1289 (Ala.Cr.App.1991); Currin v. State, 535 So.2d 221 (Ala.Cr.App.), cert. denied, 535 So.2d 225 (Ala.1988).

Thus, while the State's reasons here are subject to appellate scrutiny, the scrutiny is less exacting than it would be if the appellant had made a strong prima facie showing of discrimination. As the Alabama Supreme Court stated in Ex parte Bird, "a 'weak prima facie case may be rebutted more readily than a strong one.' " 594 So.2d at 680 (quoting Gamble v. State, 257 Ga. 325, 357 S.E.2d 792, 795 (1987) (emphasis by Bird court deleted)). "In fact a large representation [of blacks on the jury] might afford the defendant no support at all and could even weaken his prima facie case should he be able to establish one on other grounds." Ex parte Bird, 594 So.2d at 681.

Because the prosecutor used a neutral plan or rating system in striking this jury, because the plan took into account various factors that the prosecutor consistently applied without regard to race, and because at least six black jurors actually served on this jury, we conclude that no violation of Batson was shown.

"We appreciate that it is impossible to know what is in the mind of another person, and that it is possible that, in stating his reasons for striking a black member of the venire, a prosecutor may give a reason that is not the true reason, but we are convinced that the trial judges in our system are in a much better position than appellate judges to decide whether the truth has been stated." Scales v. State, 539 So.2d 1074, 1075 (Ala.1988). It is evident that the trial judge here believed the prosecutor's explanations and found them to be free of racial motivation. This finding is not clearly erroneous and must be upheld.

II

The appellant's two concurrent sentences to life imprisonment without the possibility of parole do not violate the Eighth Amendment's prohibition against cruel and unusual punishment. See Brooks v. State, 456 So.2d 1142, 1144 (Ala.Cr.App.1984); Lidge v. State, 419 So.2d 610, 613-14 (Ala.Cr.App.), cert. denied, 419 So.2d 616 (Ala.1982); Seritt v. Alabama, 731 F.2d 728 (11th Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 433 (1984). See generally Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).

The appellant admits that before sentencing he received notice of the three...