Finch v. State, 5 Div. 76

Decision Date27 October 1987
Docket Number5 Div. 76
Citation518 So.2d 864
PartiesJonetta FINCH v. STATE.
CourtAlabama 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.

PATTERSON, Judge.

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.

I

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:

"Your Honor, for the sake of the record, we would like to object to the composition of the jury based on the exclusion of--based on the composition of the jury, the defense would like to object to the composition of the jury racially. We feel like that blacks have been excluded on a systematic basis.

"...

"We also ask that we be allowed to strike another jury."

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).

"The burden of persuasion is initially on the party alleging discriminatory use of peremptory challenges 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. See Batson, 476 U.S. at , 106 S.Ct. at 1721, citing Washington v. Davis, 426 U.S. 229, 239-42 [96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597] (1976). The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:

"1. Evidence that the 'jurors in question share[d] only this one characteristic--their membership in the group--and that in all other respects they [were] as heterogeneous as the community as a whole.' [People v.] Wheeler, 22 Cal.3d [258,] 280, 583 P.2d [748,] 764, 148 Cal Rptr. [890,] 905 [ (1978) ]. For instance 'it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions,' Wheeler, 22 Cal.3d at 280, 583 P.2d, at 764, 148 Cal.Rptr. at 905, n. 27, indicating that race was the deciding factor.

"2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors. Batson, 476 U.S. at , 106 S.Ct. at 1723.

"3. The past conduct of the offending attorney in using peremptory challenges to strike all blacks from the jury venire. Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) ].

"4. The type and manner of the offending attorney's questions and statements during voir dire, including nothing more than desultory voir dire. Batson, 476 U.S. at , 106 S.Ct. at 1723; Wheeler, 22 Cal.3d at 281, 583 P.2d at 764, 148 Cal.Rptr. at 905.

"5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions. Slappy v. State, 503 So.2d 350, 355 (Fla.Dist.Ct.App.1987); People v. Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr. 656 (1986); People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 764, 148 Cal.Rptr. 890 (1978).

"6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., in Slappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged. Slappy, 503 So.2d at 352 and 355.

"7. Disparate examination of members of the venire; e.g., in Slappy, a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors. Slappy, 503 So.2d at 355.

"8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury. Batson, 476 U.S. at , 106 S.Ct. at 1721; Washington v. Davis, 426 U.S. at 242 .

"9. The offending party used peremptory challenges to dismiss all or most black jurors, but did not use all of his peremptory challenges. See Slappy, 503 So.2d at 354, Turner, supra." (Footnore omitted.)

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):

"Other than the bare allegation of defense counsel, there is nothing in the record to indicate that the prosecutor struck the thirteen blacks from the jury panel on the basis of race. 'This court cannot find systematic exclusion of blacks based on a mere allusion.' People v. Peters, 144 Ill.App.3d 310, 98 Ill.Dec. 731, 494 N.E.2d 853, 862 (1986). 'While the Supreme Court declined "to formulate particular procedure[s] to be followed upon a defendant's timely objection to a prosecutor's challenges," Batson, U.S. at , 106 S.Ct. [at] 1724, we cannot read the opinion to require a prosecutor to explain his right of peremptory challenges upon a defendant's mere objection to a jury and unsubstantiated claims of discrimination.' Weekly v. State, 496 N.E.2d 29, 31 (Ind.1986) (general objection without reason; number and race of stricken jurors unknown). In Sashner v. State, 500 So.2d 1322 (Ala.Cr.App.1986), we held that 'the mere allegation that the prosecutor "used all her strikes to try to eliminate all of the blacks off the jury" does not constitute a prima facie showing of discriminatory selection of the venire.'

"The removal of blacks by the use of peremptory challenges does not, by itself, raise an inference of racial discrimination. Phillips v. State, 496 N.E.2d 87, 89 (Ind.1986).

" 'Under Batson, the prosecution must necessarily exercise its strikes to enable the defendant to make a prima facie showing that the strikes were used in a racially discriminatory fashion. Appellant's argument presumes that the state will act with this purpose. This argument misplaces the burden of proof. The Supreme Court clearly stated in Batson that, as in any equal protection case, the burden is on the party alleging the discriminatory action to prove the existence of a racially discriminatory purpose.

'There still exists, at least initially, a presumption that the state has exercised its peremptory challenges with a neutral purpose, though now it is a realistically rebuttable one. Batson does not require the state to provide a benign justification for peremptorily striking Blacks from a petit jury absent a prima facie showing by the defendant that the strikes were made solely on the basis of race.' Williams [v. State ], 712 S.W.2d [835,] 840-41 [ (Tex.Dist.Ct.App.1986) ]."

II

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:

"By means of using computer, posting payments without print out[,] I've taken approx. amount of 80,000.00 only to be determine[d] with figures provided by myself within a day or two. Over a period of a year. Beginning about January 1984. All in cash only."

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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