Ex parte Bruner

• Decision Date: 30 August 1996
• Parties: Ex parte Anne BRUNER and James Bruner, individually and as administratrix and administrator of the Estate of James Holland Bruner, deceased. (Re Anne BRUNER and James Bruner, etc. v. Thomas H. CAWTHON, M.D., F.A.C.S., P.C., et al.). 1950451.
• Court: Alabama Supreme Court

Page 173

681 So.2d 173

Ex parte Anne BRUNER and James Bruner, individually and as administratrix and administrator of the Estate of James Holland Bruner, deceased.

(Re Anne BRUNER and James Bruner, etc. v. Thomas H. CAWTHON, M.D., F.A.C.S., P.C., et al.).

1950451.

Supreme Court of Alabama.

Aug. 30, 1996.

James H. Tipler of Tipler Law Firm, Andalusia, for petitioners.

Thomas H. Keene, Fred W. Tyson and N. Wayne Simms, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for respondent.

PER CURIAM.

The writ of certiorari is quashed as improvidently granted.

In quashing the writ, however, this Court disapproves the reliance of the Court of Civil Appeals on Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), and Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L.Ed.2d 834 (1995). Those federal cases do not control Alabama's peremptory challenge procedure, which is based on adequate and independent state law.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

SHORES, KENNEDY, INGRAM, and BUTTS, JJ., concur.

COOK, J., concurs specially.

HOOPER, C.J., and MADDOX, ALMON, and HOUSTON, JJ., concur in the result.

COOK, Justice (concurring specially).

I concur in the decision to quash the writ of certiorari as improvidently granted. However, I am compelled to disagree expressly with two views presented by Justice Maddox in his special concurrence regarding the procedures Alabama has developed to eliminate discrimination in petit jury selection. The first area of disagreement involves his premise that the procedure developed in this state is grounded on, and controlled by, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its federal court progeny. The second area is his conclusion that in Alabama the burden of proof of discrimination, which is on the opponent of the strike, is equivalent to the one currently required by the United States Supreme Court. I shall address each of these conclusions more fully in the following sections.

I. Origin of Alabama Discrimination Procedure

The first point on which I disagree with Justice Maddox is his premise that Batson forms the peremptory challenge framework

for Alabama--if not for every state in the country. According to this premise, Alabama's framework is based on federal law. Thus, Justice Maddox states that in Ex parte Bird, 594 So.2d 676 (Ala.1991), and Millette v. O'Neal Steel, Inc., 613 So.2d 1225 (Ala.1992), we were "merely attempting to follow the Batson standard set forth by the United States Supreme Court." 681 So.2d at 185

Justice Maddox's premise is consistent with the rationale of the Court of Civil Appeals, which refused to analyze the Bruners' claims of discrimination in the selection of their jury under the procedure this Court outlined in Millette. In particular, the Court of Civil Appeals stated: "Legally, the analysis used in Millette has been superseded. Since Millette was decided three years ago, the United States Supreme Court has [--in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)--] substantially altered what the proponent of a peremptory strike must do in order to survive a Batson challenge." Bruner v. Cawthon, 681 So.2d 161 (Ala.Civ.App.1995).

However, the rationale of the Court of Civil Appeals, like Justice Maddox's premise, incorrectly assumed that Alabama's peremptory challenge framework is a matter of federal law. Ignored is the fact that the movement to reform the rules relating to discrimination in jury selection was initially a state court movement. This fact was made clear in Batson itself, which was decided only after a number of state courts had already taken the initiative in ameliorating the harsh rule of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). ¹ More specifically, Batson explained that two United States Circuit Courts of Appeals had recently "[f]ollow[ed] the lead of a number of state courts construing their State's Constitution" to challenge as discriminatory peremptory strikes based on evidence supplied in the "particular case," rather than requiring, as did the federal standard, proof of "systematic exclusion of blacks." Batson, 476 U.S. at 82 n. 1, 106 S.Ct. at 1715 n. 1 (emphasis added). As examples, the Court cited People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978); State v. Neil, 457 So.2d 481 (Fla.1984); and Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Batson, 476 U.S. at 82 n. 1, 106 S.Ct. at 1715 n. 1.

Significantly, when this Court in Ex parte Jackson, 516 So.2d 768 (Ala.1986), first discussed the operation of Batson, it relied on the same state cases cited in Batson as cases on which to establish the principle under consideration. The extent of this reliance is illustrated by the following excerpt from Jackson:

"In the face of the harsh burden of Swain, several state courts have found that their state constitutions required a lesser burden on a defendant. See State v. Neil, 457 So.2d 481 (Fla.1984); People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739 (1981); State v.. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct.App.1980); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978).

"The Second Circuit in McCray v. Abrams, [750 F.2d 1113 (2d Cir.1984),] gave an excellent summary of the state court cases cited above and their analyses of their state constitutions. The California Supreme Court found that 'the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.' Wheeler, 22 Cal.3d at 276-77, 148 Cal.Rptr. at 903, 583 P.2d at 761-62. In Soares, supra, the Supreme Judicial Court of Massachusetts wrote:

" 'What we view art. 12 of the Declaration of Rights as proscribing is the use of peremptory challenges to exclude prospective jurors solely by virtue of their

membership in, or affiliation with, particular, defined groupings in the community. Were we to decline to so hold, we would leave the right to a jury drawn from a representative cross-section of the community wholly susceptible to nullification through the intentional use of peremptory challenges to exclude identifiable segments of that community.'

"377 Mass. at 486, 387 N.E.2d at 515.

"We particularly note the holding of the Florida Supreme Court in Neil, supra:

" 'Article I, section 16 of the Florida Constitution guarantees the right to an impartial jury. The right to peremptory challenges is not of constitutional dimension. The primary purpose of peremptory challenges is to aid and assist in the selection of an impartial jury. It was not intended that such challenges be used solely as a scalpel to excise a distinct racial group from a representative cross-section of society. It was not intended that such challenges be used to encroach upon the constitutional guarantee of an impartial jury. As did the New York, California, and Massachusetts courts, we find that adhering to the Swain test of evaluating the peremptory challenges impedes, rather than furthers, article I, section 16's guarantee. We therefore hold that the test set out in Swain is no longer to be used by this state's courts when confronted with the allegedly discriminatory use of peremptory challenges.'

"457 So.2d at 486.

"Although we know that the United States Supreme Court has not yet ruled on whether Batson v. Kentucky is to be applied retroactively, this Court does not need to await revelation from the federal judiciary when our own state constitution also guarantees to a criminal defendant the equal protection of the laws. Sections 1, 6, and 22, Ala. Const.1901, combine to guarantee equal protection of the laws. City of Hueytown v. Jiffy Chek Co., 342 So.2d 761 (Ala.1977)....

"The doctrine of equal protection of the laws requires that the guarantee of trial by an impartial jury not be illusory. The defendant Jackson was under the Swain burden when he attempted to show the prosecution's alleged discriminatory use of its peremptory strikes. This was too great a burden. Our state constitution requires that Jackson be entitled to test the prosecution's use of its peremptory strikes under a rule similar to the one set forth in Batson v. Kentucky:

" '[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group [citation omitted], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' [Citation omitted.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

" 'In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in...