Clark v. State

• Decision Date: 28 February 1992
• Docket Number: 2 Div. 693
• Parties: Jesse Ellis CLARK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 309

621 So.2d 309

Jesse Ellis CLARK v. STATE.

2 Div. 693.

Court of Criminal Appeals of Alabama.

Feb. 28, 1992.

Rehearing Denied May 1, 1992.

Certiorari Quashed May 28, 1993

Alabama Supreme Court 1911304.

Thomas M. Goggans, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson, Asst. Atty. Gen., for the State.

ON RETURN TO REMAND

McMILLAN, Judge.

I

This cause was remanded to the trial court, 585 So.2d 249, in order for the prosecutor to come forward with race-neutral explanations for his peremptory strikes of black prospective jurors. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court was then to evaluate these reasons in accordance with Ex parte Branch, 526 So.2d 609, modified on rehearing (Ala.1987). The appellant in this case is white. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Ex parte Bird, 594 So.2d 676 (Ala.1991). See also Insley v. State, 591 So.2d 589 (Ala.Cr.App.1991).

In the present case, the trial court conducted an extensive hearing on the matter and has returned the following findings of fact and conclusions to this court:

"FINDINGS OF FACT:

"1. The trial of this case was conducted in November, 1988. On the morning the jury was stricken there were fifty-seven (57) veniremembers present from which to strike.

"2. The State of Alabama was entitled to twenty-three (23) strikes and the Defendant was entitled to twenty-two (22) strikes.

"3. Of the State's strikes, twenty (20) were black and three (3) were white.

"4. Of the Defendant's strikes, four (4) were black and eighteen (18) were white.

"5. The jury consisted of eight (8) white jurors and four (4) black jurors. There were two (2) alternates, both of whom were white.

"6. A transcript of the hearing was taken in which the State of Alabama by its Deputy District Attorney, Edgar W. Greene, explained the reasons for the State's strikes rather than simply repeat in this order the State's espoused reasons for each of its strikes, this Court will simply rely on the transcript for those underlying reasons. In summary, the State of Alabama's strikes were based on information received during voir dire examination and/or by investigation the State conducted regarding potential jurors' previous connection with law enforcement or their family members' connection with law enforcement or crime.

"The reasons given for the State's strikes were:

"1. General opposition to capital punishment;

"2. Connection with law enforcement or criminal activity by the veniremember or family member; or

"3. A combination of reason 1 and 2.

"CONCLUSIONS:

"A. The State of Alabama has given explanations for each peremptory strike it made of potential jurors, whether black or white.

"B. This Court finds that, based on the decisions in Ex parte Branch and Batson v. Kentucky and the line of cases decided by the Alabama Court of Criminal Appeals and the Alabama Supreme Court following those decisions, ... the explanations given by the State of Alabama are sufficiently race-neutral.

"C. This Court finds that the State of Alabama did not use its peremptory challenges in a discriminatory manner and that there has been no violation of the Defendant's rights to equal protection under the 14th Amendment to the United States Constitution or his rights to a jury venire comprised of a fair cross-section of the community under the 6th Amendment to the United States Constitution."

Statistically, approximately 50% of the venire was black, while only approximately 33% of the jury was black. Moreover, the record reveals that the prosecutor used his first 20 strikes against blacks and his remaining three strikes against whites. Because the statistics are indicative of a prejudicial use of peremptory strikes, Ex parte Bird, supra, further examination of the particular reasons given by the prosecutor for his strikes is required. The prosecutor gave the following reasons for his exercise of peremptory challenges against black veniremembers:

1. A black female was struck because she "was generally opposed to capital punishment" and was the sister of a former employee of the police department who was "discharged under allegations of sexual harassment complaints from inmates." The veniremember's brother had also been fired by the county from his employment as a school teacher. Members of the potential juror's family, and possibly the potential juror, were involved in "fraud check allegations concerning an estate of a family member, apparently a mother or aunt which [the prosecutor] personally had to investigate and was called upon to interview" several members of the family.

2. A black female was struck who indicated that "she was generally opposed to capital punishment." Moreover, a family member had been prosecuted, and the veniremember responded that she had had drug and alcohol problems either with herself, a friend, or a family member. She also indicated that she was single and unemployed.

3. A black male was struck who was "opposed to capital punishment." The prosecutor further stated, "There was quite some testimony concerning his position. As I understand it, I even had him down as being struck for cause. But in reviewing the notes here, he was not. He apparently was rehabilitated by the defense." The potential juror also had criminal arrests and convictions.

4. A black female was struck as being "generally opposed to capital punishment."

5. A black male was struck because he "had an arrest record that [the prosecution] felt was excessive based on the people before [them]." The prosecutor indicated that the potential juror had 10 traffic arrests and a misdemeanor conviction. The prosecutor further indicated that the potential juror answered no questions concerning capital punishment at all.

6. A black male was struck who had "19 traffic arrests" and because he was unemployed and near the age of the defendant. However, the prosecutor stated that this potential juror was struck "based on his contacts with law enforcement with his excessive arrests."

7. A black male was struck as being "generally opposed to capital punishment." Moreover, "[t]he victim's family objected to him because he was a competitor of one of the brothers in business. They didn't feel they had a good relationship."

8. A black female was struck as being "generally opposed to capital punishment."

9. A black female was struck as being "generally opposed to capital punishment" and because she responded affirmatively to the question as to whether any potential jurors had been involved with drugs and alcohol either personally, through a friend or through a family member. The prosecutor further stated that she was also struck concerning "reference to crimes and offenses."

10. A black female was struck because she had been arrested and charged with larceny and carrying a concealed weapon. The prosecutor stated that because "[t]his case involved firearms," she was struck.

11. A black male was struck because he had been arrested and charged with homicide in 1978. The prosecutor stated that he had attempted to remove this potential juror from the panel for that reason, but was unable to do so. The prosecutor stated that apparently there was no conviction on the previous homicide charge or "[a]t least we couldn't establish it."

12. A black male was struck because of his record, which contained four or five DUI convictions.

13. A black male was struck because he had 17 traffic arrests and because he lived in an area known as crack city which is "a very high crime area for our community." Moreover, the prosecutor stated that he "had an original very bad impression of him when [the parties] went through the general voir dire and did not feel, just on first impression, that he was somebody [the prosecutor] wanted on the jury." The prosecutor stated, "[i]n looking at his address and knowing his traffic arrests and his contacts with law enforcement and knowing also that he had a kinsman that was prosecuted for robbery, [kinsman's name], as the father of people who live on the same street or near the same street, I think they live on Roosevelt and he lives on the street around the corner, but a family member has been connected with and charged in criminal offenses."

14. A black male was struck as being "generally opposed to capital punishment." Moreover, the prosecutor indicated that there were some recommendations from law enforcement against him serving as a juror "based on his poor reputation." Furthermore, the potential juror indicated that he knew the victim's ex-wife in some manner.

15. A black male was struck because he was a truck driver and the prosecutor indicated that the State "had just finished a case involving a truck driver who had run over an individual here in Selma, which gathered a tremendous amount of publicity." The prosecutor further stated that he had a "very poor reaction to [the potential juror] when we went through voir dire and did not want him on the jury." The prosecutor further stated that he was concerned about a previous prosecution against a member of the potential juror's family for burglary-rape.

16. A black female was struck because she stated that either she or a family member had been charged with or arrested for a serious criminal offense. The prosecutor stated that he knew of someone with the potential juror's last name, "who [the prosecutor] personally prosecuted and felt this was in fact a connection."

17. A black female was struck because her son had been prosecuted.

18. A black female was struck because she indicated that she was "totally undecided" about capital punishment and "[f]or that reason, [the prosecution] removed her from the jury panel." The prosecutor further noted that the potential juror lived in a high crime area which caused him some concern, "[b]ut the main reason for her removal was her lack of position concerning capital punishment."

19. A black male...