Davis v. State

• Decision Date: 13 October 1989
• Docket Number: 4 Div. 384
• Parties: O'Neal DAVIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 309

555 So.2d 309

O'Neal DAVIS v. STATE.

4 Div. 384.

Court of Criminal Appeals of Alabama.

Oct. 13, 1989.

Rehearing Denied Nov. 17, 1989.

Kathleen M. Nemish, Dothan, for appellant.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

TYSON, Judge.

O'Neal Davis was indicted for possession of marijuana in the first degree in violation of § 13A-12-213, Code of Alabama 1975 (Supp.1988). The jury found the appellant "guilty ... as charged in the indictment," and the trial judge sentenced the appellant to four years' imprisonment in the State penitentiary.

Since the appellant does not challenge the sufficiency of the evidence, the facts pertaining to this case will be briefly stated.

On October 13, 1988, at approximately 8:30 p.m., Officers Stephen Hamm and Governor Jackson of the Dothan, Alabama, Police Department were conducting a surveillance of the First Baptist Church parking lot in Dothan, Alabama. The officers were watching the lot because it was known as a "high drug area." (R. 35).

The officers saw four men "huddled" close together by the church. When the officers approached the four men in their unmarked automobile, Officer Hamm saw the appellant passing something to one of the four men, Dodd Jones. Dodd Jones dropped the item to the ground.

Upon searching the ground with his flashlight, Officer Hamm discovered a plastic bag, which he identified as containing marijuana. Both the appellant and Dodd Jones were placed under arrest for possession of this substance.

Dodd Jones was charged with misdemeanor possession, and he pleaded guilty to that charge. The appellant was charged with felony possession of marijuana based on a prior conviction for a misdemeanor sale of marijuana. See Ala.Code § 13A-12-213(a) (1975) (Supp.1988). ¹

I

The appellant contends that the prosecutor's actions in striking all three black venirepersons from the jury venire constituted a Batson violation. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The United States Supreme Court made clear in Batson that the State denies the accused equal protection of the law when he is tried "before a jury from which members of his race have been purposefully excluded." Batson, 476 U.S. at 85, 106 S.Ct. at 1713, 90 L.Ed.2d at 79-80, quoting Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). In explaining this exposition, the Court stated:

"[A] defendant has no right to a 'petit jury composed in whole or in part of persons of his own race.' Strauder at 305. ... But the defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. [citations omitted] The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race [citation omitted], or on the false assumption that members of his race as a group are not qualified to serve as jurors. [citations omitted]"

Even before Batson, the policy of this State was to insure that an accused receive a fair trial, which at a minimum required that he be judged by his peers. See Ex Parte Branch, 526 So.2d 609, 618-19 (Ala.1987). Section 12-16-56, Code of Alabama 1975, was passed as law in 1978. That section states, in full, that "[a] citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin or economic status."

Our Constitution states "[t]hat the right of trial by jury shall remain inviolate." Ala. Const. art. I, § 11 (1901). See Ala. Const. art. I, §§ 1 & 6 (1901). Inviolate means "free from substantial impairment." Black's Law Dictionary 742 (5th ed. 1979). Clearly, selection of a jury by discriminatory means constitutes "substantial impairment," not only of the jury selection process but also of the entire judicial system. Further, striking members of a "cognizable group" without clearly and sufficiently enunciating race neutral reasons is synonymous with discrimination. See United States v. Chalan, 812 F.2d 1302, 1314 (10th Cir.1987) (racially-neutral reasons presented by the prosecutor to rebut a prima facie case must be "reasonably specific" and "bona fide"), citing People v. Hall, 35 Cal.3d 161, 672 P.2d 854, 858, 197 Cal.Rptr. 71, 75 (1983) (en banc).

The question then becomes: What race-neutral reasons given by the State are sufficient to rebut a prima facie showing of discrimination? The Supreme Court of Alabama in Ex parte Branch, 526 So.2d 609, 621-25 (Ala.1987), set out certain guidelines for the trial court to follow in determining what constitutes racially-neutral reasons. Basically, the trial judge, on a case-by-case basis, should consider "all relevant circumstances" in determining if the reasons expressed by the State are sufficient nondiscriminatory grounds. Branch, 526 So.2d at 622. A mere good faith assertion by the prosecutor is not enough. Id. at 623.

The Fifth Circuit Court of Appeals provided some additional guidelines which may assist the trial judge in making his decision. United States v. Campbell, 766 F.2d 26 (1st Cir.1985). Although Campbell pre-dates Batson, it is not inconsistent with the latter decision. That court stated as follows:

"In order to rebut a defendant's showing, the prosecutor need not show a reason rising to the level of cause. There are a number of bases on which a party may believe, not unreasonably, that a prospective juror may have some slight bias that would not support a challenge for cause but that would make excusing him or her desirable. Such reasons, if they appear to be genuine, should be accepted by the court, which will bear the responsibility of assessing the genuineness of the prosecutor's response and of being alert to reasons that are pretextual."

Campbell, 766 F.2d at 28, quoting McCray v. Adams, 750 F.2d 1113, 1132 (2d Cir.1984).

The Supreme Court in Batson placed great confidence in the trial judges of our country to remedy the evil of discrimination in the striking of our juries. Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. The decisions of this court have reaffirmed that confidence. See Ex parte Scales, 539 So.2d 1074 (Ala.Crim.App.1988). The trial judge deals with the prosecutors and defense attorneys in his county on a regular basis and, in most cases, can better determine if the striking of potential jurors was discriminatory.

This State's Supreme Court acknowledged this fact in Branch, where it enunciated the "clearly erroneous" standard for a reviewing court on a Batson challenge. Branch, 526 So.2d at 625. "[A] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Powell v. State, 548 So.2d 590 (Ala.Cr.App.1988), quoting Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985). See also Williams v. State, 534 So.2d 372, 376 (Ala.Cr.App.1988) ("[t]he trial judge is in the best position to determine whether the appellant here established a prima facie case of racial discrimination").

The appellant, a black male, in the case sub judice claims that he was unconstitutionally denied a fair trial as required by Batson because the prosecutor struck all three black veniremen. The trial judge denied the appellant's motion after requiring the prosecutor to set out his reasons for the three strikes. The relevant part of the record as it pertains to the prosecutor's grounds is set out as follows:

"THE COURT: What says the State?

"MR. AMOS: Your Honor, the State says that we did in fact strike three blacks from the jury panel.

"We struck number eighty-two. He stated in open court that he knew one of the witnesses subpoenaed for the defense in this case. And I felt like that the situation, I believe this witness was there at the time, although he said he would not give more weight to that witness, I felt like it would be to the State's best interest to strike him.

"Number seventy-three, after discussing with the police officers, Sheriff's Department, Kay Barbaree indicated that the son had some problems. Ray Owens said the son had some serious legal problems facing him in the near future. And since Ray Owens, he didn't come out and say what it was, but since he was working in the narcotics, and this case is a possession case, I felt like it would be in the best interest of the State to strike that individual.

"Seventy-two is the Sheriff's Department, Jerry Hunt, who is the head of the investigation, indicates that this individual does not have the best reputation and would be prejudiced against the State because of some dealings he's had in the past.

"THE COURT: Can you specify upon the dealings?

"MR. AMOS: Jerry Hunt did not specify, your Honor. Basically, I think what they're afraid of is being sued. I don't know what it was. He would not say what it was, but I got the impression that this individual, although it does not appear to be a conviction, he'd been involved in things that were shady at least. And that's the reason he didn't want to say what it was because there were no convictions.

"THE COURT: What says the Defendant?

"MS. CROOK: Judge, I don't feel that those reasons are reason enough to cause my client to be tried before a jury that is not a jury of his peers. There are no blacks left on the jury at all, and just because Kay Barbaree and Ray Owens don't think that they would be good prosecution witnesses--jurors, or Jerry Hunt, I don't think that's enough."

(R. 21-23.) (Emphasis added.)

The trial judge agreed that the grounds stated for juror number 82 were proper, but he ordered the prosecutor to collect additional information on jurors 72 and 73.

The following day the proceedings pertaining to the Batson challenge continued as follows:

"MR. AMOS: I'd like to show the Court for the Court's benefit a list of information we have on jurors, and I think we...