Davis v. State

• Decision Date: 20 October 1995
• Docket Number: CR-93-1364
• Parties: Jimmy DAVIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1148

718 So.2d 1148

Jimmy DAVIS v. STATE.

CR-93-1364.

Court of Criminal Appeals of Alabama.

Oct. 20, 1995.

Opinion on Return to

Remand July 3, 1996.

Opinion on Second Return

to Remand March 21, 1997.

Rehearing Denied May 23, 1997.

H. Wayne Love, Anniston; and Valerie Palmedo, Anniston, for appellant.

Jeff Sessions and Bill Pryor, attys. gen.; Clayton Crenshaw, asst. atty. gen.; and Tracy Daniel, deputy atty. gen., for appellee.

PATTERSON, Judge.

The appellant, Jimmy Davis, was indicted on May 17, 1993, in Calhoun County, for the capital offense of murder committed during a robbery in the first degree, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. A jury found him guilty as charged on December 10, 1993. A sentencing hearing was held before the jury, in accordance with §§ 13A-5-43 through -46, and the jury returned as advisory verdict recommending that the appellant be sentenced to death. The vote of the jury in arriving at the advisory verdict was 11 in favor of death and 1 in favor of life imprisonment without the possibility of parole. Thereafter, the trial court held another sentencing hearing and, on March 4, 1994, sentenced the appellant to death. The appellant raises five issues on appeal.

We note at the outset that the trial court has failed to comply with the requirements of § 13A-5-47(d), which provides as follows:

"Based upon the evidence presented at trial, the evidence presented during the sentence hearing, and the pre-sentence investigation report and any evidence submitted in connection with it, the trial court shall enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13A-5-49, each mitigating circumstance enumerated in Section 13A-5-51, and any additional mitigating circumstances offered pursuant to Section 13A-5-52. The trial court shall also enter written findings of facts summarizing the crime and the defendant's participation in it."

The record does not contain a sentencing order. The appellant calls this to our attention in his brief, and the attorney general moves that we remand the case to the trial court with instructions that it enter an appropriate sentencing order. We agree that the case must be remanded. The record reflects that the trial court addressed the requirements of § 13A-5-47(d) to some extent at the sentencing hearing; however, the record does not indicate whether the trial court considered the presentence report and there are no findings of fact summarizing the crime and the appellant's participation in it. While the trial court could satisfy the requirements by reading its sentencing order into the record at sentencing, the accepted and preferred practice in this state is to prepare a formal sentencing order encompassing all of the requirements of § 13A-5-47(d).

Without full knowledge of what the trial court did and what it considered in arriving at its sentence, we are unable to properly review its sentencing decision. Because of the lack of a sentencing order, we remand this cause to the trial court with directions that it prepare and enter such an order and, in doing so, that it fully comply with § 13A-5-47(d). The trial court is instructed to take all action necessary to permit the clerk of the circuit court to file with this court a return within 28 days from the release of this opinion.

We pretermit discussion of the remaining issues raised by the appellant until we have received the sentencing order.

REMANDED WITH DIRECTIONS.

All Judges concur.

On Return to Remand [July 3, 1996]

PATTERSON, Judge.

Jimmy Davis appeals from his conviction for capital murder and his subsequent sentence to death. In Davis v. State, 718 So.2d 1148 (Ala.Cr.App.1995), we remanded this case to the trial court for the preparation of a formal sentencing order. At that time, we pretermitted discussion of the issues raised on appeal. The trial court has since filed a sentencing order with this court, and we have returned to the issues raised on appeal. Because of intervening caselaw, however, we must remand this case to the trial court to enter additional findings of fact regarding its denial of Davis's Batson motion and, if necessary, to conduct a new hearing on the issue.

The record shows the following with regard to Davis's Batson motion. After the jury was struck and out of the presence of the jury, Davis moved to quash the petit jury, arguing that the prosecutor violated Batson by allegedly exercising peremptory challenges in a racially discriminatory fashion. In his attempt to establish a prima facie case, Davis noted that the prosecutor used 9 of 14 peremptory challenges to remove blacks from the jury. (Davis conceded that he also struck one black veniremember.) Davis made no further arguments or allegations in support of his motion. A colloquy followed, during which the trial court, the prosecutor, and the defense reviewed the statistical composition of the jury. It was noted that four blacks and eight whites had been selected to sit on the petit jury, and that both alternate jurors were white. It was further noted that, although blacks comprised 33 1/3% of the petit jury (excluding alternates), they comprised 12.59% of the jury venire and less than 20% of the population of the county at large. At the conclusion of the colloquy, the trial court noted the grounds of the motion, reviewed the statistical evidence presented, and held that Davis had failed to present a prima facie case under Batson.

These facts show that, in considering Davis's motion, the trial court placed great weight on the fact that the petit jury contained a higher percentage of blacks than both the jury venire and the county at large. Its doing so is understandable, because at the time of the trial in this case, there was considerable confusion in Alabama regarding the law as it pertained to the use of statistical evidence to rebut evidence of a prima facie case of racial discrimination under Batson. See Ex parte Thomas, 659 So.2d 3 (Ala.1994), and cases cited therein. Thomas was decided shortly after Davis was convicted. In Thomas, the Alabama Supreme Court held that the fact that a greater percentage of blacks sat on the petit jury than was on the jury venire does not, as a matter of law, defeat a Batson challenge that is supported only by allegations regarding the prosecutor's pattern of strikes. Thomas further held that "such a statistical showing [by the prosecutor] weakens a prima facie case." Id., at 8 (emphasis added) (citing Ex parte Bird, 594 So.2d 676 (Ala.1991)). As noted above, the trial court appears to have relied heavily on the statistical showing; however, certain statements by the trial court at the hearing suggest that it may have also considered other unspecified factors in its ruling.

Because the trial court placed great weight on the statistical evidence presented at Davis's Batson hearing, even though it appears that this may not have been the sole basis of his ruling, we find that a remand is necessary. See Grimsley v. State, 678 So.2d 1194 (Ala.Cr.App.1995); Hodges v. State, 673 So.2d 783 (Ala.Cr.App.1995); Wood v. State, 705 So.2d 514 (Ala.Cr.App.1995); Cobb v. State, 678 So.2d 247 (Ala.Cr.App.1995). On remand, we instruct the trial court to enter specific findings regarding whether, in denying Davis's Batson motion, it considered any factors other that the statistical evidence discussed in the colloquy. For example, we direct the trial court to the following factors enumerated in Ex parte Branch, 526 So.2d 609 (Ala.1987):

"1. Evidence that the 'jurors in question share[d] only the one characteristic--their membership in the group and that in all other respects they [were] as heterogeneous as the community as a whole.' People v. Wheeler, 22 Cal.3d 258, 280, 583 P.2d 748, 764, 148 Cal.Rptr. 890, 905 (1978)....

"2. A pattern of strikes against black jurors on the particular venire....

"3. The past conduct of the state's attorney in using peremptory challenges to strike all blacks from the jury venire....

"4. The type and manner of the state's attorney's questions and statements during voir dire, including nothing more than a desultory voir dire....

"5. The type and manner of the state's attorney's questions directed to the challenged juror[s], including a lack of questions, or a lack of meaningful questions....

"6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner....

"7. Disparate examination of members of the venire....

"8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury....

"9. The state used peremptory challenges to dismiss all or most black jurors...."

Id., at 622-23 (citations omitted). Because of the nature of this particular case, and to aid our review of the trial court's ruling, we request that the trial court make specific findings as to each factor it considered in denying Davis's motion, and its conclusions regarding each factor considered.

In the event that the trial court finds that its ruling was based entirely on the "sophisticated numbers game" subsequently disapproved in Thomas, then the trial court must conduct a new Batson hearing. At that hearing, if such a hearing is necessary, the trial court shall

"consider 'all relevant circumstances' that could show discrimination or the lack of discriminatory intent. Branch. The fact that the jury is composed of a high percentage of the group that is alleged to have been excluded is only one factor that the court should consider when determining whether a prima facie case of discrimination has been established. Thomas. If the court finds that the appellant established a prima facie case of discrimination, then the court should require the state to give reasons for striking the blacks from the venire and proceed as directed by Branch. If ...