Finch v. State, 5 Div. 76
Decision Date | 27 October 1987 |
Docket Number | 5 Div. 76 |
Citation | 518 So.2d 864 |
Parties | Jonetta FINCH v. STATE. |
Court | Alabama Court of Criminal Appeals |
Oscar W. Adams III, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and J. Elizabeth Kellum, Asst. Atty. Gen., for appellee.
The appellant, Jonetta Finch, was indicted for theft of property in the first degree, as proscribed by § 13A-8-3, Code of Alabama 1975; more specifically, the theft by deception of $15,000, the property of the City of Roanoke. A jury found Finch guilty, as charged, and she was sentenced to eight years' imprisonment and ordered to pay $86,300 in restitution.
Finch, who is black, first contends that the trial court erred in denying her motion to dismiss the selected petit jury on the ground that the prosecution used its peremptory strikes to remove members of her racial group from the jury, in violation of the Equal Protection Clause. In presenting his motion, defense counsel stated the following:
In applying the principle of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), we are aided by the following guidelines set forth in Ex parte Branch, [Ms. 86-500, September 18, 1987] (Ala.1987).
In the present case, Finch has failed to establish a prima facie case of discrimination. We have no evidence before us to raise the inference of discrimination; rather we have counsel's mere assertion that they "feel like that blacks have been excluded on a systematic basis." We have no evidence of a pattern of strikes against blacks, past conduct of the prosecutor in exercising strikes, or any characteristics of the venirepersons excluded from jury service. Moreover, the record does not contain a transcription of each attorney's voir dire questions. In fact, the record does not disclose how many blacks were on the venire; how many remained on the jury; and how many were excluded by prosecutorial strikes. While Finch's counsel asserts, in brief, that the prosecution struck all blacks from the jury, and counsel attached an affidavit to that effect, we cannot consider any matter not shown on the record. Ex parte Beck, 485 So.2d 1207 (Ala.1985); Ex parte Olson, 472 So.2d 437 (Ala.1985).
We find apropos the following discussion in Swain v. State, 504 So.2d 347, 350-51 (Ala.Cr.App.1986):
In presenting evidence that Finch obtained funds from the City Utilities Board by misusing her position as assistant clerk, the prosecution introduced Finch's oral confession to stealing the money and her following written confession:
This confession was signed by Finch and witnessed by Henry Bonner, Mayor of the City of Roanoke, and W.E. Montgomery, Jr., Chairman of the Utilities Board.
Finch contends that the trial court erred in denying her motion to suppress her confession 1 because, she argues, her confession was given without the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, compliance with the procedural safeguards of Miranda is not necessary unless the confession is a product of "custodial interrogation" or "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444, 86 S.Ct. at 1612 (footnote omitted). "It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a 'degree associated with formal arrest.' " Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam )). The Supreme Court reiterated the reasons for the Miranda safeguard in Minnesota v. Murphy, 465 U.S. 420,...
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