Ex parte Trawick

Citation698 So.2d 162
PartiesEx parte Jack Harrison TRAWICK. (In re Jack Harrison Trawick v. State). 1951209.
Decision Date28 February 1997
CourtSupreme Court of Alabama

Randall S. Susskind of the Equal Justice Initiative of Alabama, Montgomery; and William K. DelGrosso, Birmingham, for Petitioner.

Bill Pryor, Atty. Gen., and Sandra J. Stewart and John Gibbs, Asst. Attys. Gen., for Respondent.

BUTTS, Justice.

Jack Harrison Trawick was convicted of the capital offense of murder committed during a first-degree kidnapping and was sentenced to death. See Ala.Code 1975, § 13A-5-40(a)(1). The Court of Criminal Appeals affirmed his conviction and sentence in Trawick v. State, 698 So.2d 151 (Ala.Cr.App.1995). This Court has granted his petition for the writ of certiorari; see Rule 39(c), Ala.R.App.P. We affirm.


The Court of Criminal Appeals stated the facts of this case in its opinion, and we will repeat only these pertinent details: Trawick abducted Stephanie Gach * from the parking lot of her apartment complex in Birmingham on October 9, 1992, after following her home from a local shopping mall. Trawick took Gach to an isolated area, where he beat her with a hammer, strangled her, stabbed her through the heart, and tossed her body off an embankment. Her body was found on October 10, 1992.

On October 26, 1996, while investigating reports of several attempted abductions of women, the Jefferson County Sheriff's Department interviewed Trawick as a suspect in relation to those reports. During a second interview, the police asked Trawick whether he had had any involvement with the murder of Stephanie Gach. In a third interview, conducted on October 29, 1996, Trawick indicated that he knew something about the murder and, in a fourth interview conducted on the same day, Trawick confessed to the crime; he was then arrested for it.

The grand jury indicted Trawick for the capital offense of murder committed during a first-degree kidnapping. After arraignment, he pleaded not guilty and not guilty by reason of mental disease or defect. After a trial, the jury found Trawick guilty of capital murder and by a vote of 10-2 recommended a sentence of death; the trial court sentenced him to death in accordance with this recommendation.

Although we have carefully reviewed the many issues Trawick raises in his brief, we will address only the primary issues and those issues that were not discussed in the opinion of the Court of Criminal Appeals.


Trawick first argues that the trial court committed several reversible errors during the process of jury selection. We note from the outset that Trawick did not object to these alleged errors at trial. We therefore review these issues only for plain error, i.e., error that is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Ex parte Taylor, 666 So.2d 73 (Ala.1995). The plain error standard applies only where a particularly egregious error occurred at trial and that error has or probably has substantially prejudiced the defendant. Taylor.

Trawick first argues that the State used its peremptory challenges to discriminate against female jurors, in violation of J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), and that the trial court erred by not requiring the State to articulate its reasons for its strikes of females. He points out that the State used 11 of its 14 peremptory strikes to remove women from Trawick's jury, resulting in a petit jury that was composed of 7 men and 5 women. He also argues that the prosecutor had a history of striking veniremembers based upon race. He thus concludes that his case should be remanded for a hearing on the State's reasons for striking women.

In J.E.B. v. Alabama, the United States Supreme Court extended the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to apply to gender discrimination in jury selection. A party making a Batson or J.E.B. challenge bears the burden of proving a prima facie case of discrimination and, in the absence of such proof, the prosecution is not required to state its reasons for its peremptory challenges. Ex parte Branch, 526 So.2d 609 (Ala.1987); Ex parte Bird, 594 So.2d 676 (Ala.1991). In Branch, this Court discussed a number of relevant factors a defendant could submit in attempting to establish a prima facie case of racial discrimination those factors are likewise applicable in the case of a defendant seeking to establish gender discrimination in the jury selection process. Those factors, stated in a manner applicable to gender discrimination, are as follows: (1) evidence that the jurors in question shared only the characteristic of gender and were in all other respects as heterogenous as the community as a whole; (2) a pattern of strikes against jurors of one gender on the particular venire; (3) the past conduct of the state's attorney in using peremptory challenges to strike members of one gender; (4) the type and manner of the state's questions and statements during voir dire; (5) the type and manner of questions directed to the challenged juror, including a lack of questions; (6) disparate treatment of members of the jury venire who had the same characteristics or who answered a question in the same manner or in a similar manner; and (7) separate examination of members of the venire. Additionally, the court may consider whether the State used all or most of its strikes against members of one gender.

At trial, Trawick objected to the State's peremptory strikes, but objected solely on the basis of race, not gender. Trawick has offered no evidence that the female veniremembers shared only the characteristics of gender, that anything in the type or manner of the prosecutor's statements or questions during the extensive voir dire indicated an intent to discriminate against female jurors, that there was a lack of meaningful voir dire directed at the female jurors, or that female jurors and male jurors were treated differently. He has offered no evidence that the prosecutor had a history of using peremptory challenges in a manner that discriminated against veniremembers of either gender. Instead, Trawick has merely emphasized that the State used many of its strikes to remove women from the venire. Without more, we do not find that the number of strikes this prosecutor used to remove women from the venire is sufficient to establish a prima facie case of gender discrimination.

Trawick next argues that during voir dire, jurors W.M. and W.C. indicated they were prejudiced against Trawick and his case, and that they therefore should have been struck from the venire for cause. Trawick argues that both of these jurors had preconceived opinions based upon media accounts of the murder and that W.C. also indicated a bias against the insanity defense in general. During voir dire, Trawick moved to strike juror W.C., but did not object to juror W.M. He also failed to raise this issue as to either of the jurors before the Court of Criminal Appeals or in his certiorari petition. Trawick nevertheless argues that it was plain error for the trial court to deny his motion to strike W.C. for cause and for it not to strike juror W.M. sua sponte.

To justify a challenge for cause, there must be a proper statutory ground or some matter that imparts absolute bias or favor and leaves nothing to the discretion of the trial court. Clark v. State, 621 So.2d 309 (Ala.Cr.App.1992). This Court has held that once a juror indicates initially that he or she is biased or prejudiced, or has deep-seated impressions about a case, the juror should be removed for cause. Knop v. McCain, 561 So.2d 229 (Ala.1989). The test to be applied in determining whether a juror should be removed for cause is whether the juror can eliminate the influence of previous feelings and render a verdict according to the evidence and the law. Ex parte Taylor, supra. A juror need not be excused merely because he or she knows something of the case to be tried or has formed some opinions regarding the case. Kinder v. State, 515 So.2d 55 (Ala.Cr.App.1986). Even in cases where a potential juror has expressed some preconceived opinion as to the guilt of the accused, the juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based upon the evidence in the case. Kinder. In order to justify disqualification, a juror must have more than a bias or an opinion as to the guilt or innocence of the accused; the bias or opinion must be so fixed that the juror cannot lay it aside and render a verdict based on the evidence presented in court. Oryang v. State, 642 So.2d 979 (Ala.Cr.App.1993).

Trawick bases his argument as to juror W.M. on statements W.M. made during individual voir dire, after he had indicated in general voir dire that he "knew something" about Trawick's case. The statements in question are as follows:


"Q. [W.M.], you recall something about the litigation? ...

"A. Yes. [I read] in the paper about the confession.

"Q. Did you read the paper this morning?

"A. Yes, sir.

"Q. About the case?

"A. That's the most recent memory of it.

"Q. What details do you remember? You said the confession. Any other details?

"A. Tape over the mouth, stabbing of the heart, how he followed his--he saw his victim at Eastwood Mall and followed her to her apartment and forced her into the van with the toy gun.

"Q. Well, I asked everybody out there about the ultimate question to you, sir. Any verdict in the case, of course, cannot be tainted with what you might have read in the paper. That's not evidence, as you well know. The verdict should be the product and based only on the courtroom evidence and the law. Could you abide by those instructions and bring in a verdict based only on the in-court evidence?

"A. I guess I want to say I could but I am not really sure, you know. I...

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