Ex parte Dunaway

• Decision Date: 20 August 1999
• Citation: 746 So.2d 1042
• Parties: Ex parte Larry D. DUNAWAY, Jr. (In re Larry D. Dunaway, Jr. v. State of Alabama).
• Court: Alabama Supreme Court

746 So.2d 1042

Ex parte Larry D. DUNAWAY, Jr.

(In re Larry D. Dunaway, Jr. v. State of Alabama).

1980571.

Supreme Court of Alabama.

August 20, 1999.

Rehearing Denied October 22, 1999.

Paul W. Brunson, Jr., Clayton, for petitioner.

Bill Pryor, atty. gen., and Kathryn D. Anderson, asst. atty. gen., for respondent.

HOUSTON, Justice.

Larry D. Dunaway, Jr., was indicted on two counts of capital murder for the intentional killings of Tressa M. Patterson and James Anthony Bernard Patterson. The murder of Tressa Patterson was made capital because it occurred during the commission of arson in the first or second degree. See Ala.Code 1975, § 13A-5-40(a)(9). The murder of James Patterson was made capital because the victim was less than 14 years of age. See Ala.Code 1975, § 13A-5-40(a)(15). Dunaway was tried before a jury and was convicted of both capital offenses. During the sentencing phase of his trial, the jury recommended a sentence of death for the murder of James Patterson; it recommended a sentence of life imprisonment without parole for the murder of Tressa Patterson. The trial court followed the jury's recommendations and sentenced Dunaway to death by electrocution for the murder of James Patterson; it sentenced him to life imprisonment without parole for the murder of Tressa Patterson. The Court of Criminal Appeals affirmed Dunaway's convictions and sentences, and it overruled his application for rehearing. See Dunaway v. State, 746 So.2d 1021 (Ala.Crim.App. 1998), for a detailed statement of the relevant facts. This Court granted certiorari review, pursuant to Rule 39(c), Ala. R.App.P. We affirm.

Dunaway has presented a number of issues to this Court. Most of those issues were addressed, and correctly so, by the Court of Criminal Appeals in its opinion; we will not address those issues addressed by that court. However, two of the issues he presents here were not presented to the Court of Criminal Appeals. We will address those two issues: 1) Whether Dunaway is entitled to a new trial on the ground that the State improperly used its peremptory strikes to remove blacks from the venire, in violation of the holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),¹ and 2) whether the admission of the testimony of Lois Russaw, Felicia Russaw, and Teresa Russaw during the sentencing phase of the trial constituted reversible error.

Because the trial court sentenced Dunaway to life imprisonment without parole for the murder of Tressa Patterson, we do not review the conviction for that crime under the same "plain error" standard that we use to review the conviction and the death sentence imposed for the murder of James Patterson. See Ex parte Woodall, 730 So.2d 652 (Ala.1998). In Woodall, this Court stated:

"Because the defendant in this case was sentenced to death, we have complied with our obligation under Rule 39(k) and conducted a plain-error review. However, with respect to his attempted murder conviction, for which he received a sentence of less than death, we do not believe the defendant is entitled to benefit from our plain-error review.... [T]he defendant's sentence of imprisonment for his conviction of attempted murder does not implicate the same heightened degree of concern for reliability that attended his sentence of death for the capital conviction. It is well established that where a defendant receives only a prison sentence the plain-error doctrine is not applicable and an appellate court will not consider an alleged error that the defendant failed to preserve by making a proper and timely objection in the trial court."

730 So.2d at 665. Given this Court's holding in Woodall, we will not, in reviewing the propriety of Dunaway's conviction and sentence for the murder of Tressa Patterson, consider any issue that was not raised in the trial court and in the Court of Criminal Appeals.

We will review Dunaway's conviction and sentence for the murder of James Patterson, however, under the plain-error rule. Under that rule, this Court, on certiorari review, will "notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and [will] take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." Rule 39(k), Ala.R.App.P.; see, also, Ex parte Myers, 699 So.2d 1285, 1290 (Ala.1997). The defendant's failure to object at trial to an alleged error, while not precluding our review of that alleged error, will weigh against any claim of prejudice. Woodall, supra.

We note at this point that Dunaway did not present his Batson issue to the Court of Criminal Appeals; therefore, we will not consider it in our review of his conviction and life sentence for the murder of Tressa Patterson. We will consider it in our plain-error review of his conviction and the death sentence imposed for the murder of James Patterson.

Dunaway, who is black, argues the following in support of his Batson challenge:

"First, the state struck a large number (11) of African-American jurors. Second, it had to use a tremendous proportion of its 13 strikes—85%—to remove so many black people. Third, these black jurors included both men and women and ran the gamut on age, [this fact] suggesting that the leading characteristic they share was their race. Fourth, while the state struck only two white jurors, the defense eliminated sizable numbers of both white and black veniremembers. Fifth, the prosecutor did not engage in intensive voir dire with the black veniremembers eliminated. Sixth, the Barbour County District Attorney's office has been found in the past to have practiced racial discrimination in jury selection."

Although the trial court made no initial finding that Dunaway had established a prima facie case of racial discrimination, it nevertheless allowed the State to provide its reasons for the strikes:

"All right. In this case, the Dunaway case, y'all anticipate a Batson challenge.

"The State and the defense make notes about the strikes, the order of the strikes, the reason for the strikes. Now, I don't mind standing here, and if y'all want to give a race-neutral reason for each strike, that will probably eliminate a hearing on the Batson challenge because [the reason for the strike will have been given at the time of the strike].

And I'll do whatever you wish, but that is one option."

The State agreed to give its reasons for striking jurors as they were removed. The State then used its 13 peremptory strikes, stating throughout the process its reasons for removing black jurors:

Juror 75

"J.Y. did not respond to any questions, and I had seen him talking in the vicinity of some of the State's witnesses. And, his age. He is young, and he is about the age of the witnesses."

Juror 31

"Judge, this was an individual that responded to the questions very evasively. I had a lot of problems how she was judging the facts. She knew some facts about the case, and is one that the defendant suggested as a very good challenge for cause. She also had a son that had been convicted, a drug charge on the child."

Juror 20

"Judge, that is Ms. C. She is the one that had a complaint about having to see the doctor and being out for an extended period of time. She did not want to sit on a capital-murder case. I was very much concerned about her serving, and the state of her health in the responses."

Juror 55

"Judge, this was her mental capacity. She had a hard time understanding what was being said to her. She was one of the jurors that we questioned as to whether or not she would be able to return a verdict and serve at all. She also had a complaint about her eyes, and she couldn't read, you know, as she stated earlier before we had the individual voir dire."

Juror 54

"Your Honor, the defendant, his age, and he had not responded to many questions until we got into the 12 at a time, and then when Ms. L.G. was responding to a number of questions he was showing reaction to every question she responded to in a positive agreeing way to—to every response that she had to her questions. He never, in fact, responded to any of the questions that I had. And it was certainly a response agreeing with every response that L.G. had in the series of 12 people."

Juror 48

"Judge, Mr. K. is a truck driver that didn't want to be here any of the time, and stated he would rather be anywhere else than here, and was very negative about serving on the jury at all. And that is number 48 that we strike."

Juror 56

"Number 56, I prosecuted him on a drug charge. I prosecuted a first cousin of his on a drug charge—of hers, I'm sorry. She is R.K."

Juror 78

"Judge, that was an individual that we had to go later and bring him in as a juror that didn't show up. And when I talked to the group he was very indecisive about—what his statement would be about being on the case, and trying the case at all. His age, too, and it was very difficult for him to have been here in the first place. That is the reason we strike number 78."

Juror 21

"Judge, she has been represented by Don McKinnon [one of Dunaway's lawyers] in the past, and she was unresponsive when asked about being represented by Don in the past."

Juror 76

"He responded that it was very difficult for him to be on this case. He didn't want to serve on this case, and that is the reason we struck him."

Juror 12

"She said she had a difficult time reading. She is the one that was complaining about wanting to get off the jury."

Dunaway presented no rebuttal evidence indicating that the State's reasons were pretextual. When the jury was seated, one of Dunaway's attorneys announced Dunaway's satisfaction with the jury. The jury was composed of six white jurors and six black jurors.

It is within the sound discretion of the trial court to determine if peremptory challenges of jurors were motivated by intentional racial discrimination. The trial court's findings in...