Ex parte Bird

Decision Date06 December 1991
Citation594 So.2d 676
PartiesEx parte Terry BIRD. (Re Terry Bird v. State of Alabama). Ex parte Jacob WARNER. (Re Jacob Warner v. State of Alabama). 89-1061, 89-1062.
CourtAlabama Supreme Court

Jeffery C. Duffey, Montgomery, for petitioner Terry Bird.

Richard D. Shinbaum of Shinbaum, Thiemonge & Howell, Montgomery, for petitioner Jacob Warner.

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

James H. Evans, Atty. Gen., and Frances H. Smith, Asst. Atty. Gen., for respondent on rehearing.

ON APPLICATION FOR REHEARING

ADAMS, Justice.

The opinion of June 14, 1991, is withdrawn and the following is substituted therefor.

Terry Bird and Jacob Warner appealed convictions of capital murder. The Court of Criminal Appeals affirmed. See Bird v. State, [Ms. 3 Div. 938, Feb. 23, 1990] 594 So.2d 644 (Ala.Cr.App.1990), and Warner v. State, [Ms. 3 Div. 945, Feb. 23, 1990] 594 So.2d 664 (Ala.Cr.App.1990). This Court granted certiorari review to consider whether the defendants were denied their rights to a fair and impartial trial by the prosecution's use of peremptory strikes to eliminate black veniremembers from the jury, and whether Bird, a white defendant, has standing to challenge the prosecution's use of peremptory strikes. We answer both questions in the affirmative, and we reverse.

In the trial of these defendants' consolidated cases, the chief deputy district attorney for Montgomery County, Ellen Brooks, and Deputy District Attorney Bruce Maddox used 17 of their 20 peremptory strikes to eliminate 17 of the 19 black veniremembers. The defendant struck 1, thus leaving only 1 black veniremember to serve on the jury. Before the jury was sworn, both defendants moved to quash the jury panel on the ground that the State's use of its peremptory strikes violated the principles expressed in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which principles this Court had adopted in Ex parte Jackson, 516 So.2d 768 (Ala.1986), and had grounded on state law, including Ala. Const., art. I, §§ 1, 6, and 22. Ellen Brooks, under direct examination by Mr. Maddox, then proceeded to make a showing for the record as to the reasons for her strikes. A summary of her explanations appears in the opinion of the Court of Criminal Appeals in Warner v. State, supra. For convenience, the pertinent reasons are summarized below:

VENIREMEMBER NUMBER 93: She expressed reservations about the death penalty.

VENIREMEMBER NUMBER 83: She expressed reservations about the death penalty. "Her husband was employed by the ABC Board. The district attorney's office had recently prosecute[d] regarding the ABC Board."

VENIREMEMBER NUMBER 87: He expressed reservations about the death penalty. He also "had a paternity case with family court." Because he was 78 years old, he might be adversely affected by the length of the trial and the "gory" photographs it involved. 1

VENIREMEMBER NUMBER 1: He was a minister who indicated that he knew Warner and expressed reservations about the death penalty. One of his eyes did not seem to focus properly.

VENIREMEMBER NUMBER 75: She worked in a department store where a member of the district attorney's staff had formerly worked. The staff member indicated that Number 75 was suspected of shoplifting. She was 19 years old and one of the defendants was 22.

VENIREMEMBER NUMBER 31: He had been charged with possession of marijuana. He indicated that he "had heard of Mr. Shinbaum," attorney for Mr. Warner. 2

VENIREMEMBER NUMBER 113: She was a teacher and her husband was unemployed. She once had a student named Eloise Warner, the present name of defendant Warner's wife.

VENIREMEMBER NUMBER 97: He was 73 years old, did not raise his hand for the administration of the oath, and had difficulty hearing "low voices."

VENIREMEMBER NUMBER 27: She was 24 years old and lived in a high-crime area. She had a "negotiating a worthless instrument conviction" and did not respond to a question in general voir dire regarding misdemeanor convictions. Her last name was the same as that of an individual once prosecuted by the district attorney's office.

VENIREMEMBER NUMBER 37: She "had a disorderly conduct charge." On the written questionnaire, she "clearly and forcefully stated" that she knew none of the "attorneys or the defendants or their families," but did not indicate whether she knew the victim.

VENIREMEMBER NUMBER 45: She was married to an assistant basketball coach who was employed by Alabama State University. The University had been under investigation by the White Collar Crime Unit. The district attorney's office had recently prosecuted someone connected with the University.

VENIREMEMBER NUMBER 96: He was 28 years old, "single, and self-employed as a private duty nurse." Moreover, personal observation of him [indicated] that he had tendencies of being homosexual." The case involved some evidence of homosexual activity and the prosecutrix thought that he might know some of the witnesses.

VENIREMEMBER NUMBER 33: She had once served on a jury in a criminal case that was subsequently dismissed. She had "difficulty in talking" and seemed to be unfamiliar with the term "shoplifting."

VENIREMEMBER NUMBER 26: She lived in a "high crime" area. Her last name was the same as that of an individual once prosecuted by the district attorney's office.

VENIREMEMBER NUMBER 76: She was 26 years old, lived in an apartment in a "high-crime" area, and worked as a cashier.

The trial judge, after cross-examination of Ms. Brooks by defense counsel, expressed some concern over the challenges of Veniremembers 26 and 45. Ultimately, however, he concluded that to grant the defendants' motion to quash the jury panel placed "too great of a burden on the State in explaining its reasons" for its challenges. He, therefore, denied the motion on the grounds that the prosecution's explanations were sufficiently race-neutral and that Bird lacked standing to challenge the exclusion of black veniremembers.

We take this opportunity to underscore the rule and policies that we announced in Jackson and Ex parte Branch, 526 So.2d 609 (Ala.1987). In doing so, we examine the State's explanations for its strikes in light of our rule regarding the defendant's burden of production in presenting a prima facie case--especially as it is affected by the interplay of the various factors that we enumerated in Branch. In Branch, we explained:

"The burden of persuasion is initially on the party alleging discriminatory use of peremptory challenges to establish a prima facie case of discrimination. In determining whether there is a prima facie case, the court is to consider 'all relevant circumstances' which could lead to an inference of discrimination. See Batson, 476 U.S. at 93, 106 S.Ct. at 1721, citing Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:

"1. Evidence that the 'jurors in question share[d] only this 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 at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905 [ (1978) ]. For instance 'it may be significant that the persons challenged, although all black, include both men and women and are [of] a variety of ages, occupations, and social or economic conditions,' Wheeler, 22 Cal.3d at 280, 583 P.2d at 764[, n. 27], 148 Cal.Rptr. at 905, n. 27, indicating that race was the deciding factor.

"2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

"3. The past conduct of the state's attorney in using peremptory challenges to strike all blacks from the jury venire. Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) ].

"4. The type and manner of the state's attorney's questions and statements during voir dire, including nothing more than desultory voir dire. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Wheeler, 22 Cal.3d at 281, 583 P.2d at 764, 148 Cal.Rptr. at 905.

"5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions. Slappy v. State, 503 So.2d 350, 355 (Fla.Dist.Ct.App.1987); People v. Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr. 656 (1986); People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 764, 148 Cal.Rptr. 890 (1978).

"6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., in Slappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged. Slappy, 503 So.2d at 352 and 355.

"7. Disparate examination of members of the venire; e.g., in Slappy, a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors. Slappy, 503 So.2d at 355.

"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. Batson, 476 U.S. at 93, 106 S.Ct. at 1721; Washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2049.

"9. The state used peremptory challenges to dismiss all or most black jurors. See Slappy, 503 So.2d at 354, Turner, supra.

"After a prima facie case is established, there is a presumption that the peremptory challenges were used to discriminate against black jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. The state then has the burden of articulating a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory. Batson, 476 U.S. at 97, 106 S.Ct. at 1723."

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