Ex Parte Walker

• Decision Date: 30 March 2007
• Docket Number: 1041931.
• Citation: 972 So.2d 737
• Parties: Ex parte James Earl WALKER. (In re James Earl Walker v. State of Alabama).
• Court: Alabama Supreme Court

972 So.2d 737

Ex parte James Earl WALKER (In re James Earl Walker v. State of Alabama).

1041931.

Supreme Court of Alabama.

March 30, 2007.^*

Rehearing Denied May 18, 2007.

Charles Decker, Dothan, for petitioner.

Troy King, atty. gen., and. Michael Nunnelley, asst. atty. gen., for respondent.

STUART, Justice.

James Earl Walker was convicted of murder made capital because the murder was committed during the course of a first-degree burglary. See § 13A-5-40(a)(4), Ala.Code 1975. After a jury, by a vote of 12-0, recommended that Walker be sentenced to death, the trial court conducted its independent sentencing hearing, made specific findings of fact, and sentenced Walker to death.

The Court of Criminal Appeals affirmed Walker's conviction but remanded the case for the trial court to correct various deficiencies in its sentencing order. Walker v. State, 932 So.2d 140 (Ala.Crim.App.2004), On return to remand, the Court of Criminal Appeals affirmed Walker's sentence of death. 932 So.2d at 160.

This Court granted certiorari review as to certain issues raised in Walker's petition concerning both the guilt phase and the sentencing phase of Walker's trial. We affirm.

Facts

The Court of Criminal Appeals provided a thorough recitation of the facts from the trial court's sentencing order, 932 So.2d at 145-46; therefore, we will provide only a summary of the evidence relevant to the issues before us.

The evidence tended to establish the following. In January 2000, Bessie Lee Thweatt, who was 87 years old, suffered multiple blunt-force injuries to her head, before she was fatally shot, at close range, in the head. The testimony indicated that Thweatt was alive during the infliction of the blunt-force-trauma injuries and that she suffered great pain before dying from the gunshot wound. Thweatt's body was found in her Houston County home, which had been ransacked.

Law-enforcement officers from the Houston County Sheriff's Department suspected Walker and Rex Allen Beckworth, residents of Etowah County, of the murder. Walker was arrested in Etowah County by Etowah County law-enforcement officers. During questioning in Etowah County by Houston County law-enforcement officers, Walker admitted to being outside Thweatt's house at the time of her murder. While Walker was being transported to Houston County from Etowah County, law-enforcement officers stopped at Thweatt's residence, and Walker gave a statement, which was videotaped, describing his version of the events on the night Thweatt was killed. According to Walker, he never entered Thweatt's house, and he ran from the area when he heard a gunshot.

Discussion

We will address only the grounds raised in Walker's petition upon which certiorari review was granted. We note that in his brief to this Court, Walker expands the grounds to include additional grounds as to which we did not grant certiorari review. We will address those additional grounds only if we notice plain error.

A. Alleged violation of Batson v. Kentucky.

First, Walker contends that the trial court erred in concluding that he did not present a prima facie case of a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and, consequently, in not requiring the State to provide race-neutral and gender-neutral reasons for its peremptory strikes. According to Walker, the trial court based its refusal to find a prima facie case of a Batson violation on the facts that Walker was a white male and three African-American females were seated on the jury.

The record reveals that the following occurred after the jury was selected:

"[Walker's counsel]: By my count, after jurors were taken off for cause, there was fifteen African-American members of the strike panel. The State has used the right of peremptory challenge to remove ten. We contend that [to be] a violation of the principles enunciated by the United States Supreme Court in Batson v. Kentucky and the Alabama Supreme Court in Ex parte Branch [, 526 So.2d 609 (Ala.1987),] and Ex parte Thomas [, 659 So.2d 3 (Ala.1994),] and other cases of similar import.

"THE COURT: Do you have any evidence you want to present in that regard?

"[Walker's counsel]: Nothing beyond the numerical disparity, Your Honor. "THE COURT: Let the record reflect that the defendant is a white male and that there are three African[-American] females on the jury. Any response from the State?

"[Prosecutor]: Judge all they have given you is the numbers. The Defendant is white. He has not come forward with any questionnaires that we didn't ask questions on the ones we struck. We have reasons. Just numbers is not enough. You asked for evidence.

"THE COURT: Do you have anything else?

"[Walker's counsel]: Nothing further.

"THE COURT: Okay. Generally, it has been my practice to make the State go forward. The Defendant, as I said, is a white male and there are three African-American females on this jury. The Court finds that the Defendant has failed to prove a prima facie case."

This Court has stated:

"The burden of persuasion is initially on the party alleging discriminatory use of a peremptory challenge to establish a prima facie case of discrimination. In determining whether there is a prima facie case, the court is to consider `all relevant circumstances' which could lead to an inference of discrimination."

Ex parte Branch, 526 So.2d 609, 622 (Ala. 1987). An objection based on numbers alone, however, does not support the finding of a prima face case of discrimination and is not sufficient to shift the burden to the other party to explain its peremptory strikes. Ex parte Trawick, 698 So.2d 162 (Ala.1997).

Here, the trial court did not err in holding that Walker did not present a prima facie case of discriminatory use of peremptory strikes by the State. Walker's objection was based totally on the number of African-Americans the State struck from the jury. When the trial court asked for facts or evidence to support the objection, Walker was unable to provide any. The trial court properly concluded that Walker had not presented a prima facie case of discriminatory use of peremptory strikes.

Moreover, Walker does not establish a conflict between the trial court's holding that he did not present a prima facie case and the holding of the United States Supreme Court in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). In Powers, the United States Supreme Court stated: "A criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same races." 499 U.S. at 402, 111 S.Ct. 1364. Walker argues that the trial court's statements on the record that Walker was white and that three African-American females were ultimately seated on the jury provides evidence indicating that the trial court based its ruling on an improper ground. We disagree. Our reading of the statements in the context of the record leads us to conclude that the trial court, in light of the fact that Walker offered no evidence to support his objection, was merely trying to establish a few facts in the record to reflect the makeup of the jury. Thus, Walker has not established a conflict between the trial court's ruling and the Supreme Court's holding in Powers.

Lastly, Walker asks this Court to review the record and conclude that plain error occurred because, he says, the record evidences that the State engaged in a discriminatory use of its peremptory strikes. Although he did not object on this basis in the trial court, he now argues that the State" failed to strike prospective male and white jurors for the same reasons it used to strike prospective female and African-American jurors. To support his argument, Walker points out what he says is evidence of disparate treatment of venire-members during the voir dire.

Plain error is

"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."

Ex parte Trawick, 698 So.2d at 167.

Moreover,

"`"[for plain error to exist in, the Batson context, the record must raise an inference that the state [or the defendant] engaged in `purposeful discrimination' in the exercise of its peremptory challenges, See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987)."'"

Smith v. State, 756 So.2d 892, 915 (Ala. Crim.App.1998), aff'd, 756 So.2d 957 (Ala. 2000) (quoting Rieber v. State, 663 So.2d 985, 991 (Ala.Crim.App.1994), quoting in turn other cases).

We find no plain error in regard to this issue. When the. State exercised its peremptory strikes, it had before it both the jurors' answers to questions on voir dire and their answers to the juror questionnaire as a basis for its peremptory strikes.¹ The questionnaires were not included in the appellate record. See Rule 10(a)(6), Ala. R.App. P. However, pursuant to Rule 18.2(b), Ala. R.Crim. P., we requested the circuit court to forward to us the relevant juror questionnaires to allow us to determine if the record supports an inference that the State engaged in purposeful discrimination in its exercise of its peremptory strikes. See Blackmon v. State, [Ms. CR-01-2126, August 25, 2006] ___ So.2d ___, ___ (Ala.Crim.App.2005) (opinion on application for rehearing) (in which the Court of Criminal Appeals requested the circuit clerk, pursuant to Rule 18.2(b), Ala. R.Crim. P., to forward to it juror questionnaires and then conducted a plain-error review of an alleged Batson violation).

We have carefully reviewed the record and the relevant juror questionnaires to determine whether an inference can be drawn that the State engaged in purposeful discrimination...