Ex parte Adkins

• Decision Date: 17 April 1992
• Citation: 600 So.2d 1067
• Parties: Ex parte Ricky Dale ADKINS. (Re Ricky Dale Adkins v. State). 1900654.
• Court: Alabama Supreme Court

Page 1067

600 So.2d 1067

Ex parte Ricky Dale ADKINS.

(Re Ricky Dale Adkins v. State).

1900654.

Supreme Court of Alabama.

April 17, 1992.

D. Michael Barrett, Birmingham, Talmadge H. Fambrough, Pell City, and Charlotta Norby, Atlanta, Ga., for petitioner.

Don Siegelman, Atty. Gen., and James H. Evans, Atty. Gen., and Gilda Branch Williams and William D. Little, Asst. Attys. Gen., for respondent.

PER CURIAM.

Ricky Dale Adkins was convicted of capital murder. After the guilt phase of the trial, the jury considered his punishment and recommended, by a 10-to-2 vote, that he be punished by death. The trial judge agreed and sentenced Adkins to death.

On direct appeal to the Court of Criminal Appeals, 600 So.2d 1054, Adkins raised five issues. As required by Ala.Code 1975, § 13A-5-53, the Court of Criminal Appeals also reviewed the propriety of Adkins's conviction and sentence of death. After doing so, the Court of Criminal Appeals affirmed his conviction and sentence of death.

This Court granted Adkins's petition for a writ of certiorari. Rule 39(c), Ala.R.App.P. In this Court, Adkins reargues some of the issues addressed by the Court of Criminal Appeals and also presents a number of new issues. We have reviewed the record, the opinion of the Court of Criminal Appeals, and the arguments presented in Adkins's petition and brief. After thoroughly considering the issues addressed by the Court of Criminal Appeals, we conclude that the Court of Criminal Appeals correctly decided each of the issues presented to that court.

The State argues that this Court should not address the issues that were not raised in the Court of Criminal Appeals. According to Rule 39(k), A.R.App.P., this Court can notice and review any "plain error or defect" in capital cases, without regard to whether the error was brought to the trial court's attention. ¹

"In reviewing a death penalty case, this Court may notice any plain error or defect in the proceeding under review, regardless of whether it was brought to the attention of the trial court. Ex parte Waldrop, 459 So.2d 959 (Ala.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1984). See also Rule [39(k) ], A.R.App.P. This Court may take appropriate appellate action whenever the error 'has or probably has adversely affected the substantial right of the [petitioner].' Rule [39(k) ], Ala.R.App.P. 'Plain error' arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceeding. United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981). See also Ex parte Womack, 435 So.2d 766 (Ala.1983), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983)."

Ex parte Bankhead, 585 So.2d 112, 117 (Ala.1991). Accordingly, this Court has reviewed the record for any plain error that would have seriously affected the fairness or integrity of the judicial proceedings. See Ex parte Lawhorn, 581 So.2d 1179 (Ala.1991) cert. denied, 502 U.S. 970, 112 S.Ct. 445, 116 L.Ed.2d 463 (1991). Of those issues, raised here by the defendant as based on "plain error," but which were not addressed by the Court of Criminal Appeals, we find only two that present any need for discussion.

I

WHETHER THE STATE IMPROPERLY EXERCISED ITS PEREMPTORY CHALLENGES BY STRIKING BLACK JURORS ON THE BASIS OF THEIR RACE.

Adkins, a white defendant, was charged with the murder of a white female. During jury selection, the State exercised 9 of its 24 peremptory strikes to remove 9 of 11 blacks from the jury. Adkins's lawyers struck one of the two remaining black jurors, and one black served on the jury. Adkins's lawyers never objected to the State's removal of blacks from Adkins's jury.

Recently, the United States Supreme Court held as follows:

"Invoking the Equal Protection Clause and federal statutory law, and relying upon well-established principles of standing, we hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race."

Powers v. Ohio, 499 U.S. 400, ----, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411, 419 (1991). The Court stated:

"The discriminatory use of peremptory challenges by the prosecution causes a criminal defendant cognizable injury, and the defendant has a concrete interest in challenging the practice. ... This is not because the individual jurors dismissed by the prosecution may have been predisposed to favor the defendant; if that were true, the jurors might have been excused for cause. Rather, it is because racial discrimination in the selection of jurors 'casts doubt on the integrity of the judicial process,' ... and places the fairness of a criminal proceeding in doubt."

Id., 499 U.S. at ----, 111 S.Ct. at 1371, 113 L.Ed.2d at 425 (citations omitted). Consequently, this Court must review the question whether the State's exercise of its peremptory strikes was racially discriminatory.

In Ex parte Bankhead, supra, this Court, relying on Powers, remanded a case in which the death penalty had been imposed on a white defendant. Bankhead's attorney had not objected to the State's use of its peremptory strikes to remove 8 of 10 black venire members. This Court held that the "plain error" doctrine required it to address the Batson issue and, on rehearing after Powers was decided and relying on the mandate of Powers, held that the case was due to be remanded to the circuit court for a hearing on this issue. 585 So.2d at 117. The same holding is required here.

II.

WHETHER THE TRIAL COURT'S "REASONABLE DOUBT" INSTRUCTION TO THE JURY SATISFIED THE REQUIREMENTS OF DUE PROCESS.

Adkins also argues that the trial judge improperly instructed the jury at the close of the evidence. Specifically, Adkins contends that the trial judge's explanation of the phrase "beyond a reasonable doubt" allowed the jury to find Adkins guilty based on a lower degree of proof than that required by the due process clauses of the United States Constitution and the Alabama Constitution. Adkins also argues that the trial judge improperly referred to the same explanation of "beyond a reasonable doubt" during the sentencing phase of the trial.

The United States Supreme Court has stated:

"Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of guilt with utmost certainty."

In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368, 375 (1970). ² A trial judge's error in explaining the "beyond a reasonable doubt" standard could "adversely affect[ ] the substantial rights" of a defendant, Rule 39(k), A.R.App.P., or "affect the fairness or integrity of the judicial proceeding." Ex parte Bankhead, supra. Accordingly, this Court must determine whether the trial judge's explanation of the phrase "beyond a reasonable doubt" satisfied the requirements of the Due Process Clause.

In explaining the phrase "beyond a reasonable doubt," the trial judge instructed the jury as follows:

"In considering the evidence, there are certain rules of law that guide you as to the evidence that has been offered. The State of Alabama has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the case. The defendant is not required to prove his innocence. So we use the term, and you have heard it over and over again. What is reasonable doubt? 'A reasonable doubt' is one of those terms that many times you make more confusing by trying to explain what it is. You all have common sense. You have all heard the term 'reasonable.' But in this context, 'reasonable doubt' as used in a lawsuit has been defined to us through the law. Let me give you a few things that the law says about 'reasonable doubt.'

"A reasonable doubt is a fair doubt based on reason and common sense and arising from the state of the evidence. While it is rarely possible to prove anything to an absolute certainty, a reasonable doubt is not a mere guess or surmise. A reasonable doubt may arise not only from the evidence produced, but also from a lack of the evidence. The burden is upon the State to prove the defendant guilty beyond a reasonable doubt of every essential element of the offense charged. We will get to the elements in just a minute. A defendant has a right to rely upon the failure of the prosecution to establish such proof. A defendant may also rely on the evidence brought out on cross-examination of any of the State's witnesses.

"The phrase 'reasonable doubt'--it may be helpful to say that a reasonable doubt is the doubt which would justify acquittal. It must be an actual and substantial doubt, and not a mere possible doubt.

"If after considering all of the evidence in this case, you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt, and it would be your duty to convict the defendant. The reasonable doubt which entitles an accused to an acquittal is not a mere fanciful, vague, conjectural or speculative doubt, but a reasonable substantial doubt arising from the evidence and remaining after a careful consideration of the testimony such as reasonable, fairminded and conscientious persons would entertain under all the circumstances. Now, you will observe that the State is not required to convince you of the defendant's guilt beyond all doubt, but simply beyond a reasonable doubt and to a moral certainty. If, after comparing and considering all of the evidence of this case, your...