Cox v. State

• Decision Date: 13 November 1992
• Citation: 629 So.2d 664
• Parties: Tony Andre COX v. STATE. CR 91-497.
• Court: Alabama Court of Criminal Appeals

Page 664

629 So.2d 664

Tony Andre COX v. STATE.

CR 91-497.

Court of Criminal Appeals of Alabama.

Nov. 13, 1992.

Rehearing Denied Jan. 22, 1993.

William J. Brower, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Jean Brown, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, Tony Andre Cox, was convicted of robbery in the first degree and was sentenced to 20 years' imprisonment. He raises two issues on this appeal from that conviction.

I.

We find a clear violation of the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The proceedings concerning this matter that appear in the record on appeal are as follows:

"MR. BROWER [defense counsel]: Your Honor, we would move to quash the jury and move for a mistrial in that the prosecution excluded black jurors based solely on the race in state's peremptory challenges [sic]. That the defendant is a black male and a member of a racial minority. A denial of the fourteenth amendment, equal protection policies of the Alabama and United States Constitutions, and the defendant cannot be sure of a fair and impartial trial by his peers.

"THE COURT: In what way was the--show me a prima facie case that they did discriminate or exercise their peremptory challenges in a discriminatory fashion.

"MR. BROWER: A number of the prospective jurors were black and were excluded. I feel like the fact that they had excluded black jurors is--

"THE COURT: The state excluded three and you excluded two. In what way did the state exercise their challenges in a discriminatory fashion?

"MR. BROWER: Just that it doesn't reflect the racial make-up of the community, Your Honor.

"THE COURT: Well, it just so happens that there were nine blacks on the jury venire out of twenty-seven, which makes a third remaining. There are four out of twelve or possibly thirteen which would maintain that same percentage identically. So it has not, the manner in which the challenges were exercised has not diluted the percentage of blacks versus whites on the jury. We go through this, and to be very frank, I don't know what is a prima facie case any more.

"MR. BROWER: I don't either.

"THE COURT: I wish I knew, but I don't know what is prima facie any more. I struggle with this. As a matter of fact, I just got a brief back from the state on one that I tried and I required the state to state their reasons without even a prima facie case. But seems like each time I read a decision on Batson it changes, and I don't know what the rules are.

"Certainly I understand the reason for the state striking number seventy-nine because that was one that possibly was a challenge for cause. However, he stated he would listen to the evidence and this was one that stated he had a bias against the testimony of a police officer. I have no problem with the state striking that particular juror.

"As far as number forty-three, what was the reason for striking number forty-three.

"MS. MONTGOMERY [prosecutor]: All right. Your Honor, I make these exceptions after your ruling, I believe which is to go ahead and put these on the record.

"THE COURT: Yeah, let's put them on the record because I have no idea what a prima facie case is.

"MS. MONTGOMERY: All right. Number forty-three was Doris Cook. She was single, and when she indicated she was familiar with the area because of friends, teaches, meetings. That particular area has a lot of crime in that particular area and she, I felt, would probably have a different opinion since she says she goes over there to visit friends and different meetings. And for that reason you would think that she would be not really wary of the kind of neighborhood and area this is and would not be one of the jurors that you would think would be sympathetic to the state's position. That was the reason for striking number forty-three.

"Number forty-six, main reason for him being struck was that he was single. I try and do all single jurors, which was also one of the reasons why number forty-three.

"THE COURT: On Andre Richmond [Richmond v. State, 590 So.2d 384 (Ala.Cr.App.1991) ], Judge Bowen just reversed me on Andre Richmond because Lisa Paul excluded jurors because they were single. And even though every one of her strikes were single he said that was not race neutral. So I need to have more than that. I don't understand it either, but go ahead.

"MS. MONTGOMERY: Was that, I don't know if this was the same particular case on Andre Richmond, but you are correct.

"THE COURT: Application for rehearing, I don't know what is going to happen on that, but he did reverse it on the basis that it was not [a] race neutral basis even though all jurors that were struck were single.

"MS. MONTGOMERY: In addition, his appearance is that he is very young. Closer probably to the age of the defendant in this case than that of the victim.

"THE COURT: Where does he live? He lives in North Birmingham apparently.

"MS. MONTGOMERY: His job on the totem pole of jobs, he was on landscape for Medical Center East. He indicated he lived in Tarrant.

"THE COURT: Okay. That would be north of North Birmingham, wouldn't it?

"MS. MONTGOMERY: But that job being one of the ones that is probably more of a blue collar worker and single and young were my reasons for striking Mr. Craig.

"THE COURT: All right. I don't have any problem with either of those two strikes. And like I said, seventy-nine I think was very obvious due to the responses that he gave on voir dire. So I'll allow the strikes to stand. And, of course, you have an exception thereto. We'll see what happens if it gets down to Montgomery." R. 5-12.

In Richmond v. State, 590 So.2d 384 (Ala.Cr.App.1991), this Court reversed the trial court on the ground that "[t]he prosecutrix's reason for striking venire member number 234 was based on conjecture and assumed bias and prejudice on the part of that member." 590 So.2d at 386.

"Implicit in the prosecutrix's reason is the allegation of racial conflict between the black and white officers of the Birmingham Police Department. According to the prosecutrix's assumption, the venire member was tainted by that racial conflict because she was the wife of a black police officer. Quite obviously, this was not a race-neutral reason for the exercise of the peremptory strike."

Richmond, 590 So.2d at 386.

In Richmond, although we did not specifically predicate error on the prosecutrix's striking of one black veniremember because she was "single," this Court did make the following observation:

"In consideration of the opinion of the Alabama Supreme Court in [Ex parte Bird, 594 So.2d 676] (Ala.1991), this Court considers the rationale that the venire member is 'single' a 'highly suspect' justification for the exercise of a peremptory strike. In this regard the 'single' rationale is similar to a strike based on 'age.'

" '[W]e realize that in certain cases age may serve as a legitimate racially neutral reason for a peremptory strike. See Harrell [v. State], 555 So.2d at 268 n. 1 [ (Ala.1989) ]. However, the age rationale is highly suspect because of its inherent susceptibility to abuse. Batson, 476 U.S. at 106 (Marshall, J., concurring) ("[a]ny prosecutor can easily" ground a challenge upon an allegation that a "juror had a son about the same age as the defendant"). A mere summary declaration that age was a factor in the decision to strike is, therefore, constitutionally deficient and warrants reversal. Owens v. state, 531 So.2d 22, 26 (Ala.Cr.App.1987).'

[Ex parte Bird, 594 So.2d at 682-83]." Richmond, 590 So.2d at 385 (emphasis added).

Where the challenged party's explanations for its strikes are a part of the record, those explanations must be reviewed by the appellate courts regardless of the manner in which they came to be in the record. The Alabama Supreme Court has "h[e]ld that in reviewing allegations that the prosecution has exercised its peremptory challenges in a racially discriminatory manner, the reviewing court's inquiry, whether the State's explanations are offered voluntarily or by order of the trial judge, shall not be restricted by the mutable and often overlapping boundaries inherent within a Batson-analysis framework, but, rather, shall focus solely upon the 'propriety of the ultimate finding of discrimination vel non.' " Ex parte Huntley, 627 So.2d 1013, 1016 (Ala.1992) (specially overruling the holding in Reese v. State, 549 So.2d 148 (Ala.Cr.App.1989), that where the trial court expressly determines that no inference of discrimination exists, a reviewing court should not examine the State's explanations for its challenges). If any of the explanations advanced by a prosecutor are deemed to be insufficient, the defendant's conviction will be reversed, even if the defendant did not establish a prima facie case. See Huntley v. State, 627 So.2d 1011 (Ala.Cr.App.1991), affirmed, 627 So.2d 1013 (Ala.1992); Jackson v. State, 594 So.2d 1289, 1292-94 (Ala.Cr.App.1991).

Here, the trial court could have determined that the appellant had failed to present a prima facie case of discrimination and could not have required the prosecutrix to state her reasons for her strikes of black veniremembers. See Long v. State, 615 So.2d 114 (Ala.Cr.App.1992) ¹.

The explanations for the strikes must be "clear, specific, and legitimate," "relate[d] to the particular case to be tried," and "nondiscriminatory." Ex parte Branch, 526 So.2d 609, 623 (Ala.1987) (emphasis omitted). In Hernandez v. New York, 500 U.S. 352, ----, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991), the Court further elaborated on the required explanation: "A neutral explanation in the context [of Batson ] means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral."

The reasons stated by the prosecutor "need...