Ex parte McWilliams

• Decision Date: 29 January 1993
• Citation: 640 So.2d 1015
• Parties: Ex parte James Edmund McWILLIAMS, Jr. (Re James Edmund McWilliams, Jr. v. State). 1911242.
• Court: Alabama Supreme Court

Page 1015

640 So.2d 1015

Ex parte James Edmund McWILLIAMS, Jr. (Re James Edmund McWilliams, Jr. v. State).

1911242.

Supreme Court of Alabama.

Jan. 29, 1993.

Oliver W. Loewy, Montgomery, for petitioner.

James H. Evans, Atty. Gen., Jean A. Therkelsen, Asst. Atty. Gen., and Sandra J. Stewart, Deputy Atty. Gen., for respondent.

INGRAM, Justice.

James Edmund McWilliams, Jr., was convicted by a Tuscaloosa County jury of three counts of capital murder and was sentenced to death. The Court of Criminal Appeals affirmed the conviction and sentence. See McWilliams v. State, 640 So.2d 982 (Ala.Crim.App.1991). This Court granted McWilliams's petition for the writ of certiorari. Rule 39(c), A.R.App.P.

In his petition to this Court, McWilliams presents 26 issues for review. He presented all but six of these issues to the Court of Criminal Appeals. That court issued a detailed and lengthy opinion, which provided a thorough treatment of each of the issues raised by McWilliams. We have thoroughly reviewed the record before us for error regarding the issues raised, as well as for plain error not raised. ¹ Except as set out in Part I below, we find no error by the Court of Criminal Appeals in affirming the conviction and sentence.

I.

McWilliams asserts that, in sentencing him to death, the trial court considered portions of victim impact statements wherein the victim's family expressed their characterizations and opinions about the crime, the defendant, and the appropriate sentence, and In Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the United States Supreme Court vacated a death sentence, holding that it violated the defendant's Eighth Amendment rights for the sentencer to consider victim impact statements in sentencing the defendant to death. The victim impact statements in that case contained the same types of information as were in the statements in the present case. In Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the Supreme Court partially overruled Booth. The Court in Payne held that the defendant's Eighth Amendment rights were not violated by the trial court's consideration of statements regarding the victims and the impact of their deaths upon the family members. The victim impact statements in Payne did not contain characterizations or opinions about the defendant, the crime, or the appropriate punishment. That portion of Booth that proscribed the trial court's consideration of that type of statement was, therefore, left intact by Payne.

that the court erred in doing so. After the jury recommended that McWilliams be sentenced to death, the trial court conducted a separate sentencing hearing in accordance with §§ 13A-5-47 through -52, Ala.Code 1975, and sentenced McWilliams to death. Before the sentencing hearing, the trial court ordered the preparation of a presentence report. That report contained victim impact statements prepared by the victim's family. The statements contained two types of information: 1) statements about the victim and the impact of her death upon the family members, and 2) characterizations and opinions of the defendant, the crime, and the appropriate punishment.

We conclude that McWilliams's Eighth Amendment rights were violated if the trial judge in this case considered the portions of the victim impact statements wherein the victim's family members offered their characterizations or opinions of the defendant, the crime, or the appropriate punishment. Because the record does not reveal whether the trial judge considered these statements in imposing the death sentence on McWilliams, this case must be remanded to the trial court for further proceedings.

On remand, the trial judge is directed to determine and make a written finding stating whether, in imposing the sentence upon James McWilliams, he considered the portions of the presentence report wherein Patricia Reynolds's family members stated their characterizations of McWilliams, the murder of Reynolds, or the appropriate sentence for McWilliams. If, and only if, the trial judge finds that he did consider those portions of the presentence report, then he is hereby directed to vacate McWilliams's death sentence and to hold another sentencing hearing consistent with this opinion.

II.

McWilliams asserts that the prosecution used its peremptory challenges to strike black veniremembers in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The venire from which McWilliams's jury was selected consisted of 68 members, of whom 17 were black. With 9 of its 16 peremptory strikes, the prosecution removed blacks from the venire. Ultimately, four blacks were selected to serve on the jury, and one black served as an alternate. The record shows that McWilliams did not object to the State's use of its peremptory strikes. Accordingly, no hearing was held pursuant to the procedure set out in Ex parte Branch, 526 So.2d 609 (Ala.1987).

McWilliams argues that this case should be remanded for the trial court to afford the prosecution an opportunity to present race-neutral reasons for its strikes. We find, however, that McWilliams has not made a prima facie showing that the State used its peremptory strikes in violation of Batson.

McWilliams cites several of the factors set out in Ex parte Branch that are relevant in determining whether a prima facie showing of discrimination has been made. Significantly, he argues that the State's use of its peremptory challenges evinces a pattern of strikes against black jurors on the venire. Ex parte Branch, 526 So.2d at 623. In support of this contention, McWilliams cites Bui v. State, 627 So.2d 849 (Ala.Crim.App.1992) The Court of Criminal Appeals remanded the case to the trial court for a hearing with regard to the State's use of its peremptory challenges. Bui v. State, 627 So.2d 849. On remand, the trial court held that the State had not violated Batson in the use of its peremptory strikes. On return to remand, the Court of Criminal Appeals held that the record did establish a discriminatory use of peremptory challenges by the State. Bui v. State, 627 So.2d 849. Holding that the trial court's conclusion was not clearly erroneous, we reversed the judgment of the Court of Criminal Appeals and remanded the case for the reinstatement of Bui's conviction and sentence. Ex parte Bui, 627 So.2d 855.

                rev'd, Ex parte Bui, 627 So.2d 855 (Ala.1992).  After Bui's conviction and sentence had been affirmed by the Court of Criminal Appeals and by this Court, the United States Supreme Court remanded the case for our further consideration in light of Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).  Bui challenged the State's use of 6 of its 13 peremptory strikes to remove blacks from the venire. 2  The venire in that case consisted of either 13 or 15 qualified blacks. 3  Bui v. State, 627 So.2d 849 (Ala.Crim.App.1992)
                

McWilliams emphasizes that in the present case the State used its peremptory strikes to remove 53% of the qualified blacks from the venire, while in Bui the Court of Criminal Appeals remanded the case for a hearing although the State had struck only 46% percent of the qualified blacks from the venire. In Bui, 34% of the venire were blacks, and the jury consisted of only one black, or 8% of the empaneled jury. In the present case, however, 25% of the venire consisted of blacks, and 33% of the empaneled jury were blacks. In Harrell v. State, 571 So.2d 1270, 1271-72 (Ala.1990), we stated:

"[A] defendant cannot prove a prima facie case of purposeful discrimination solely from the fact that the prosecutor struck one or more blacks from his jury. A defendant must offer some evidence in addition to the striking of blacks that would raise an inference of discrimination. When the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created. Logically, if statistical evidence may be used to establish a prima facie case of discrimination, by showing discriminatory impact [citation omitted], then it should also be available to show the absence of a discriminatory purpose."

Other than by conclusory statements in his brief, McWilliams has made no attempt to show that the State exercised its peremptory strikes in violation of Batson, and our review of the record discloses no such violation. Accordingly, we find no error in the State's use of its peremptory challenges.

III.

McWilliams next argues that in its closing argument the State made adverse comments upon McWilliams's choice not to testify. Specifically, McWilliams complains of the following portion of the district attorney's closing argument:

"You know, one thing I do note that neither of the defense attorneys have talked about in the evidence or really dwelt on: they did not talk about that gun in that car right beside the man underneath the armrest, loaded, up in Ohio. And they did not talk about the bullets in his pocket; and they did not talk about the bullets down in the floorboard of the car--the ones he said he was biting on. He said he knew those were there, but he didn't know about the gun being there. Why did he have bullets in his pocket if he didn't know anything about any of this? There is no good reason, explanation, that indicates anything other than guilt in this case. There is no other explanation for it, and you have not heard an explanation; the It is the law in Alabama that in all criminal prosecutions, the accused shall not be compelled to give evidence against himself. Ala. Const.1901, Art. I, § 6. That privilege is also protected under § 12-21-220, which provides:

evidence doesn't show any other explanation for it."

"On the trial of all indictments, complaints or other criminal proceedings, the person on trial shall, at his own request, but not otherwise,...