Ex parte Branch

Citation526 So.2d 609
PartiesEx parte Preston BRANCH. (In Re Preston Branch v. State of Alabama). 86-500.
Decision Date18 September 1987
CourtSupreme Court of Alabama

L. Dan Turberville, Birmingham, for petitioner.

Don Siegelman, Atty. Gen. and Beth Slate Poe, William D. Little, Asst. Attys. Gen., for respondent.

Bryan E. Morgan, Executive Director, Alabama Dist. Attys. Ass'n, amicus curiae on behalf of district attorneys in State of Ala.

MADDOX, Justice.

This petition for certiorari presents a case of first impression involving the State's use of its peremptory challenges to strike 6 of 7 blacks from the jury venire. The specific question presented is whether the State's explanations of the reasons for its exercise of the challenges were racially "neutral." In determining this question, we must review, in detail, the holding of the Supreme Court of the United States in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and our holding Because the Supreme Court of the United States did not "formulate particular procedures to be followed," and did not "instruct the [state and federal] courts how best to implement [the Batson ] holding," 1 and because the trial judge, in this case, did not have the benefit of any guidelines formulated by the Supreme Court of the United States in Batson, or by this Court in the case of Jackson, we do not, at this time, affirm or reverse the judgment of the Court of Criminal Appeals, but we remand the case to the Court of Criminal Appeals, with directions to remand it to the trial court for a new determination of the issue raised by the petitioner, based upon the guidelines we delineate in this opinion, and based upon the rule of law contained in Jackson.

in Ex parte Jackson, 516 So.2d 768 (Ala.1986).


The facts of this case are very ably set out in the opinion of the Court of Criminal Appeals, and while we could make reference to that opinion for the statement of facts, we believe that for a better presentation of the issue in this case, we should, and do, recite the facts, as found by the Court of Criminal Appeals in Branch v. State, 526 So.2d 605 (Ala.Crim.App.1986):

"The appellant, Preston Branch, was indicted and convicted for the offense of murder, as proscribed by § 13A-6-2, Code of Alabama 1975. He was subsequently sentenced to imprisonment for life.

"As his sole issue, Branch, who is black, contends that the trial court denied his motion for mistrial or for new trial on the assertion that the prosecutors' use of their peremptory strikes to remove members of his racial group from serving on the petit jury violated the Equal Protection Clause. We review the trial court's ruling with the guidelines of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), which was released just five days prior to Branch's trial. In Batson, the Supreme Court substantially changed the evidentiary burden, previously set forth in Swain v. Alabama, 380 U.S. 202 [85 S.Ct. 824, 13 L.Ed.2d 759] (1965), placed on a criminal defendant who asserts an equal protection claim based on the prosecutor's alleged racially discriminatory use of peremptory challenges. Fleming v. Kemp, 794 F.2d 1478, 1483 (11th Cir.1986).

"We must apply the principles of Batson to the particular circumstances of this case, which are as follows: On May 6, 1986, after voir dire examination of the petit jury venire and after the prosecution exercised its first three strikes to strike blacks, Branch's counsel interrupted,

" 'I believe based on my experience with this government prosecutor, Mr. Nelson, he had a record of using his preemptory [sic] challenges to rid the venire of blacks.

" 'I had one three weeks ago, he used all seven strikes to eliminate blacks. And in light of Batson v. Kentucky, I believe the defendant is being denied Fifth, Fourteenth and Sixth Amendment rights to right of a fair trial by this prosecutor, systematically exclusion of black people.'

"The trial court responded, 'Well, I have tried many cases with the two prosecutors, I can't agree that in my experience it is systematically excluding blacks.' In "Immediately after the jury rendered its verdict on May 8, defense counsel moved for a mistrial. Thereafter, the court examined the jury selection within the context of Batson. The parties stipulated that the prosecution exercised six of its seven strikes to exclude six of the seven blacks included on the venire. Then, the two prosecutors gave specific reasons for striking each particular venire person, which are summarized, as follows:

addition, the court required the prosecutors to make note of their reasons for their strikes and, if a conviction resulted from the trial, Branch's contention would be resolved in a motion for new trial. Defense counsel made no objection to this procedural arrangement.

" 'HARRIS: One of the prosecutors participated in a "bust" five months before, at a home close to Harris's residence, and saw Harris during the "bust"; he could not recall Harris's relationship to the person arrested, so he thought it best to strike him. Moreover, Harris was similar in age and physical appearance to Branch.

" 'MAYNOR: As an employee of Gold Kist, Maynor was not desirable as a juror because it is the prosecutors' general experience that Gold Kist's employees have not been attentive as jurors and a number of employees are being investigated for a variety of crimes.

" 'MEADOWS: Meadows's background as an unemployed, former student was not attractive, and she "appeared ... to have kind of a dumbfounded or bewildered look on her face, as if she didn't know why she was here, or what she was supposed to do."

" 'MONTGOMERY: Being a scientist, Montgomery's presence on the jury would have put too great a burden on the prosecution, considering the background of the case and "knowing the problems with one hundred percent mathematical aspects of a case like this"; the prosecutors did not want a "scientific application in the decision."

" 'PARMER: Parmer's general appearance was unkempt. Moreover, he worked in "credit management," and because the prosecutors were not able to question him about his specific job, they deemed it too risky to leave Parmer on the jury. Parmer appeared to be a gruff collector and the prosecution did not want a juror who would be at odds with anyone else on the jury.

" 'KELLEY: As a single female who was about the same age as Branch, Kelley "might feel as though she were a sister, or that type thing and have some pity on the person." Moreover, Kelley was observed frowning and the prosecutors did not want, on the jury, a person who was in a bad mood. Finally, her response to defense counsel was much more favorable than her response to the prosecutors.'

"After hearing these explanations, the court noted that it considered the prosecutors to be credible and that it trusted them when they stated things in their capacity of court officers. The court then reserved ruling on Branch's motion for mistrial.

"On May 23, another hearing was held on the Batson contention, as presented in Branch's 'motion for new trial or for mistrial.' After the court heard further argument, the court denied Branch's motion."

Because of our in-depth treatment of this issue, we quote additional portions of the record, which contains a transcript of what occurred relating to the peremptory challenge issue:

"MR. TURBERVILLE [defense counsel]: [Batson was] not talking about striking all blacks. [It talks] about striking any black member from jury duty because of race.

"... Batson very clearly says that [the State] must give a neutral reason or believable reason for striking. They used their first six strikes to strike blacks ... even an insurance adjustor, conservative-type biochemistry person, an old woman that--

"THE COURT: Before we get into the facts, [Mr. Turberville], read the third paragraph "MR. TURBERVILLE (reading): 'A defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. The defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor may not rebut a prima facie showing by stating that he challenged the jurors on the assumption that they would be partial to the defendant because of their shared race or by affirming his good faith in individual selections.'

[from Batson ].... I think that is very instructive.

"Judge, I believe that I met that test.... We pointed out it was a black defendant. I pointed out that their first three strikes had been black. I pointed out that just three weeks or so ago, I had a case with Mr. Rod Nelson where he used all of his peremptory strikes to eliminate blacks when it was a black defendant.

"THE COURT: All right. Out of perhaps more caution than anything else, I am going to require you State lawyers to explain why you selected these persons for peremptory strikes.

"MR. TURBERVILLE: Judge, may I make a motion here also?


"MR. TURBERVILLE: I think this is kind of like locking the barn door after the cows are out. Batson says that once I make that showing, and I did make that showing before the trial even started, during the selection of the jury and I asked you to do...

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