Ex parte Brown

• Decision Date: 13 September 1996
• Citation: 686 So.2d 409
• Parties: Ex parte Raymond Eugene BROWN. (Re Raymond Eugene BROWN v. STATE). 1941150.
• Court: Alabama Supreme Court

Page 409

686 So.2d 409

Ex parte Raymond Eugene BROWN (Re Raymond Eugene BROWN v. STATE).

1941150.

Supreme Court of Alabama.

Sept. 13, 1996.

Rehearing Denied Nov. 22, 1996.

William R. Blanchard of Blanchard & Calloway, P.C., Montgomery, and Charles P. Hollifield, Montgomery, for Petitioner.

Jeff Sessions, Atty. Gen., and William D. Little, Asst. Atty. Gen., for Respondent.

COOK, Justice.

This Court granted Raymond Eugene Brown's petition for the writ of certiorari to review the judgment of the Court of Criminal Appeals affirming his conviction of capital murder and his sentence of death. See Brown v. State, 686 So.2d 385 (Ala.Cr.App.1995).

This is the third time this case has been before us. On May 13, 1988, Brown was convicted of two capital murders, based on the deaths of Linda LeMonte and her daughter, Sheila Smoke. After the sentencing hearing, the jury unanimously recommended death by electrocution. The trial court accepted the advisory verdict and sentenced Brown to death. In Brown v. State, 571 So.2d 345 (Ala.Cr.App.1990), the Court of Criminal Appeals reversed Brown's convictions and his sentence, holding that the trial court's refusal to individually voir dire potential jurors regarding possible prejudice from pretrial publicity had denied Brown the due process guaranteed under the United States Constitution. This Court granted the State's petition for the writ of certiorari to the Court of Criminal Appeals, but after hearing oral argument quashed the writ as improvidently granted. Brown v. State, 571 So.2d 353 (Ala.1990).

Subsequently, the State sought certiorari review in the United States Supreme Court. On June 10, 1991, that Court vacated the judgment of the Court of Criminal Appeals and remanded the cause for reconsideration in light of Mu'Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991) (addressing federal constitutional requirements as to voir dire on the issue of pretrial publicity). Alabama v. Brown, 501 U.S. 1201, 111 S.Ct. 2791, 115 L.Ed.2d 966 (1991). On July 26, 1991, the Court of Criminal Appeals reinstated its judgment reversing the conviction and sentence. Brown v. State, 586 So.2d 991 (Ala.Cr.App.1991). On April 10, 1992, this Court reversed that judgment, holding that the trial judge's general voir dire complied with the constitutional requirements articulated in Mu'Min. Brown v. State, 632 So.2d 14 (Ala.1992).

The Court of Criminal Appeals thereafter again remanded this cause to the trial court on the authority of Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), ¹ with directions that the State be required to justify its use of 20 of its 23 peremptory strikes to remove black veniremembers from the prospective jury panel. Brown v. State, 632 So.2d 17 (Ala.Cr.App.1992). The trial judge conducted a hearing in accordance with the remand order and, with the following order, concluded that the State's explanations were race-neutral:

"Brown was convicted in this court on March 29, 1988 and sentenced to death by electrocution for the double murder of a woman and her child after having previously being convicted of murder. Both the defendant and the victims were white and this case carried no racial overtones.

"The record in this case shows that the venire from which the jury was struck consisted of 74 persons, 9 of which (including 1 black person) were excused from service by this court, and 7 of which (including 2 black people) were struck for cause. Three black persons actually served on the trial jury in this case and one of the alternate jurors was also black. Of the state's strikes in this case 20 of 23 were black. Of the defense strikes 1 of 23 were black.

"After hearing and fully considering the legal arguments and factual data presented in this hearing, which the record shows, the Court finds that the State, through its Attorney General, Jimmy Evans, has articulated clear, cogent, and sound reasons for its peremptory strikes, all being racially neutral. In making this determination this court has specifically considered the demeanor of the sworn witness for the State, evidence at the hearing, and this court's knowledge of these proceedings as trial judge in this case.

"In addition, this Court notes for the record in this case, that in the opinion of this Court, this defendant in all respects received a fair trial in this matter.

"In conclusion, the Court finds that the reasons stated by the State in using its peremptory strikes were/are racially neutral, and permissible under the cases of Batson v. Kentucky, 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (1986), Ex parte Jackson, 516 So.2d 768 (Ala.1986); Ex parte Branch, 526 So.2d 609 (Ala.1987); and [Bui v. State, 627 So.2d 855 (Ala.1992) ]."

On the trial court's return to the remand, the Court of Criminal Appeals affirmed Brown's conviction and sentence of death. Brown v. State, 686 So.2d 385 (Ala.Cr.App.1995). We have reviewed all of the issues raised by Brown. We find that many of the issues raised in this Court were adequately addressed in the January 13, 1995, opinion of the Court of Criminal Appeals. We address the following issues:

I.

Brown challenges the trial court's holding that the State offered race-neutral reasons for using 20 of its peremptory strikes to remove blacks from the jury venire. This Court has written:

"In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that a prosecutor may not use the state's peremptory strikes to remove venirepersons of a defendant's race solely on the assumption that they would be biased toward the defendant merely because he is of the same race. Batson granted defendants the right to require the prosecutor to explain the reasons for the strikes if the defendant has established a prima facie case of discrimination."

Bui v. State, 627 So.2d 855, 856 (Ala.1992). The Court of Criminal Appeals, in affirming the trial court's findings and holding on this issue, stated, in part:

"In this Court's September 18, 1992 opinion, we held that a prima facie case of purposeful discrimination had been established by the defense based on the fact that the prosecution had used 20 of its 23 strikes to remove blacks from the jury and based on the history of the Montgomery County District Attorney's Office with regard to its use of peremptory strikes to remove blacks from the juries. The State urges this Court to reexamine its finding that the appellant established a prima facie case of discrimination.

"The State argues that its pattern of strikes does not provide strong evidence of discrimination. We disagree. Here, there were 24 blacks on the venire. Defense counsel struck one black and the State struck 20 of the 23 remaining blacks on the venire. Thus, the State used 87% of its strikes to remove blacks[,] leaving a jury that was 25% black.

" 'Statistical evidence may be used to establish a prima facie case of discrimination. In both Ex parte Bird, 594 So.2d 676 (Ala.1991), and Ex parte Yelder, 630 So.2d 107 (Ala.1992), the prosecution struck substantial numbers of black veniremembers. In Bird, the venire was 36% black. The State used 17 of its 20(85%) peremptory strikes to remove blacks, leaving a jury that was 8% black. In Yelder, the venire was 31% black. The State used 24 of its 32(75%) strikes to remove blacks, leaving a jury that was 16% black. With reference to both cases, the Alabama Supreme Court stated: "[T]he sheer weight of statistics such as these raises a strong inference of racial discrimination requiring clear and cogent explanations by the State in rebuttal." Ex parte Yelder, 630 So.2d at 109.'

Kidd v. State, 649 So.2d 1304 (Ala.Crim.App.1994). See also Ex parte Thomas, 659 So.2d 3 (Ala.1994).

"The State also argues that the fact that the State struck whites before it struck any blacks is evidence that its pattern of strikes was not discriminatory. This Court rejected this argument in Freeman v. State, 651 So.2d 576 (Ala.Crim.App.1994).

"The State further argues that it is the district attorney's staff, and not the district attorney himself, that has shown a history of discrimination in the use of peremptory strikes. This Court in Freeman also rejected the State's argument that the district attorney is not responsible 'for his staff's [observation of or] failure to observe the requirements of Batson and Branch.' Freeman, 651 So.2d at 587.

During the hearing on the Batson motion, the district attorney stated that his reasons for striking the jurors were based on [reconstruction] of the notes from when the jury was struck. The district attorney stated that before he strikes a jury, the jury list is divided by the individual characteristics of the potential jurors such as 'age, sex, and race.' (Record on Return to Remand (R.R.R.) 21.) In this particular case, the district attorney stated that he was trying to compose a jury 'tailored to what we were going to do to try to debunk the insanity defense.' (R.R.R. 22.) The district attorney stated that he wished to have persons on the jury who were older, mature, married, employed, and had children.

"The following are the reasons given by the district attorney for his strikes:

"Juror 7 (white male--age 60) was struck because he indicated that he was opposed to the death penalty and that religion was the most important thing in his life.

"Juror 145 (white female--age 44) was struck because she had been cited for traffic violations in 1987 and because her husband was a psychologist.

"Juror 127 (black female--age 20) was struck because she was single, young, and had no children. Her employment status was unclear. There was a question as to whether she worked at the Gayfers department store's warehouse. The district attorney had information that she worked at the Alabama [Alcoholic] Beverage Control Board warehouse and several investigations had been conducted there. The district attorney felt that 'if she had...