Cliff v. State

• Decision Date: 24 February 1987
• Docket Number: 1 Div. 246
• Citation: 518 So.2d 786
• Parties: Steve CLIFF v. STATE
• Court: Alabama Court of Criminal Appeals

Page 786

518 So.2d 786

Steve CLIFF v. STATE

1 Div. 246.

Court of Criminal Appeals of Alabama.

Feb. 24, 1987.

On Return to Remand July 28, 1987.

Rehearing Denied Sept. 8, 1987.

Certiorari Denied Jan. 8, 1988 Alabama Supreme Court 86-1613.

Paul D. Brown, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Steve Cliff, was convicted of the offense of rape in the first degree in violation of § 13A-6-61, Code of Alabama 1975, and sentenced to life imprisonment in the penitentiary. He appeals, raising three issues.

Appellant contends that the trial court erred to reversal in denying his motion for a mistrial based upon the State's "purposeful, deliberate and systematic use of peremptory challenges to strike the trial jury venire to exclude young male members of the black minority race, in violation of the defendant's constitutional guarantee of trial by an impartial jury." He asserts that the prosecuting attorney used five of the State's eight strikes to strike all five black male jury veniremen from the venire. He relies upon the recent decision of the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The record shows the following:

"THE COURT: All right, for the record, I told Mr. Brown [defense counsel] that we could take this up prior to the--any testimony being taken and after the jury was selected. Now, what else would you like put in the record?

"MR. BROWN: Judge, initially I would like at this time to move for a mistrial based upon the State's use of their peremptory challenges, which once again reflects the invidious pattern of discrimination that is being practiced by the Mobile County District Attorney's office. In this trial, the Defendant, my client, Steve Cliff, is a young black male. It is my observation that in trials of young black males the District Attorney's office makes it a pattern and practice to strike from the jury--

"THE COURT: That is not true in every case, but let's talk about this case. What about this case?

"MR. BROWN: In this case, Judge, the State of Alabama has stricken all of the young black males from the jury venire.

"...

"MR. BROWN: Judge, on the State's first strike they struck number 31, which was Altory Mose, a young black male. For their second strike they struck number 34, Evelyn Nelson, a young--a middle aged black female. For their third strike they struck number 43, Eugene Moseley, a young black male. For their fourth strike they struck number 32, Arthur Lee Todd, a young black male. For their fifth strike they struck number 51, John Everett, middle aged black male. Those being all the black males on the jury venire ...

"THE COURT: ... the record should also reflect that there's a black victim and there's a black defendant. I think they have every right in the world to use their strikes as they choose, ...

"MR. BROWN: Or for an evidentiary hearing, Judge, or for--in the alternative for the District Attorney's office to offer an explanation as to why they so struck.

"THE COURT: They have no--they have no legal requirement to do that that I know of, but what is your motion?

"MR. BROWN: It's a motion for mistrial based upon the invidious pattern--

"THE COURT: Denied.

"MR. BROWN: --of discrimination.

"THE COURT: Denied. And again I say for the third time for the record, I think she's [referring to the prosecuting attorney] absolutely ridiculous in using strikes to strike blacks when there's a black victim, but if she chooses to do that, that's her right to do. And again I say for the record there's a black victim and there's a black defendant. But you have that in the record. ..."

We find that this issue has been properly preserved for our review. After a review of the facts, we are compelled to remand this cause pursuant to the holding of Batson v. Kentucky, supra; Griffith v. Kentucky, 476 U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); and our Supreme Court's similar ruling in Ex parte Jackson, 516 So.2d 768 (Ala.1986).

Accordingly, we remand this cause to the trial court with the instructions that if the court determines that the facts establish a prima facie case of purposeful discrimination under Batson, the court must give the prosecutor the opportunity to come forward with race-neutral explanations for her use of the peremptory strikes. If the prosecutor is unable to do so, then appellant is entitled to a new trial. See Ex parte Owens, [Ms. 85-1008, January 9, 1987] (Ala.1987); Ex parte Zackery, 521 So.2d 1 (Ala.1987); Ex parte Jackson, supra. In the event that the trial court rules that appellant is not entitled to a new trial, the court shall make written findings on this issue and forward those, along with a transcript of the hearing, to this court.

In view of our holding above, we pretermit discussion of the remaining issues raised.

REMANDED WITH INSTRUCTIONS.

All Judges concur.

On Return to Remand

PATTERSON, Judge.

This court directed the Circuit Court of Mobile County, Alabama, to conduct an evidentiary hearing to determine whether the facts establish a prima facie case of purposeful discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and, if so, to allow the prosecutor an opportunity to provide race-neutral explanations for the use of her peremptory strikes in selecting the jury which convicted appellant. On remand, the trial court fully complied with the order of this court. After holding an evidentiary hearing, the trial court issued a written order, in which it made the following findings of fact:

"The State presented the testimony of Teresa Tanner Pulliam, who, at the time of trial, served as an Assistant District Attorney and was the prosecutor responsible for the State's jury selection. Ms. Pulliam addressed the striking of those five potential black jurors struck by the State and, in the opinion of the Court, articulated a nondiscriminatory reason for their exclusion.

"The defendant was accused and convicted of the Rape of Ingrid Taylor, a seventeen year old black female.

"Ms. Pulliam testified that she had tried and convicted several black Prichard residents for the murder of Booker T. Williams, a black man from Prichard, and that the resulting sentiment within that community was not favorable to the prosecution. Consequently, three black veniremen listing Prichard as their place of residence were struck.

"A fourth black potential juror, as well as one of the Prichard residents, was struck because he did not work. Ms. Pulliam stated that she regularly struck anyone who was unemployed. She further elaborated that she wanted as jurors men who were in supervisory or white collar positions, and middle class women who worked, as opposed to women from an affluent Mobile suburb, 'a Spring Hill Woman.' Paul Brown, counsel for the defendant, struck five black women whom Ms. Pulliam testified she would have accepted as jurors.

"The fifth black venireman was struck because he was a man, Ms. Pulliam preferring working women as jurors, and because he was a salesman rather than a white collar worker. Two of the aforementioned Prichard residents were men, as well as laborers, and thus outside the parameters Ms. Pulliam sought.

"The duty of this Court is not to evaluate the prosecutor's subjective theory of jury selection. Rather, the sole question presently before the Court is whether the State satisfied its burden of proof and provided race neutral explanation for its peremptory strikes. The Court answers that question in the affirmative.

"After due consideration of all evidence, the Court finds as a proven fact that the exclusion of potential black jurors was not the product of racial discrimination. Rather, the prosecutor's use of peremptory strikes was based on the facts of this particular case and the characteristics, other than race, of those persons...."

At the hearing, the prosecutor testified under oath, and the trial court allowed defense counsel to cross-examine the witness. The prosecutor stated the following general criteria for striking the jury venire in this particular rape case:

"Generally in a rape case I normally have problems in judging whether I want men or women on it. Normally I prefer older white collar men, along with middle class employed women, as opposed to, in this particular case, as opposed to, say, a Spring Hill woman or--and again, I'm going to strike everybody off any jury who is unemployed and, again, in this particular case, the crime was committed in The City of Prichard. Frank Dees was the investigating officer, who knows virtually everybody in Prichard and was here in the courtroom with me at the time and I struck everybody from Prichard off the jury."

We agree with the trial court that the prosecution's exclusion of black venirepersons was not the product of racial discrimination. The prosecutor's use of her peremptory strikes was based on the facts of this particular case and the characteristics, other than race, of those persons challenged. We find no violation of appellant's constitutional rights in this cause.

Appellant contends the trial court erred in refusing to grant his motion for a psychiatric evaluation to determine whether he was competent to stand and whether he was insane at the time the offense was committed.

In support of appellant's motion for psychiatric evaluation, his trial attorney stated the following: "I am not a psychologist ... but based on my dealing with people, his responses were often inappropriate. Sometimes he would smile when a smile or a finding of humor was inappropriate. When I questioned him as to his inappropriate responses he became confused." Appellant's attorney further stated, "I was not able to be assisted by him in the details of this alleged offense and it's my impression from my observation of him that he is mentally incompetent and that he does have a mental problem,...