Floyd v. State

• Decision Date: 13 October 1987
• Docket Number: 4 Div. 802
• Citation: 539 So.2d 357
• Parties: Rodney FLOYD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 357

539 So.2d 357

Rodney FLOYD v. STATE.

4 Div. 802.

Court of Criminal Appeals of Alabama.

Oct. 13, 1987.

On Return to Remand May 24, 1988.

Rehearing Denied June 28, 1988.

Certiorari Denied Feb. 22, 1989

Alabama Supreme Court 87-1201.

V. Lee Pelfrey, Troy, for appellant.

Don Siegelman, Atty. Gen., and J. Elizabeth Kellum, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Rodney Floyd, was convicted of the offense of rape in the first degree, in violation of § 13A-6-61, Code of Alabama 1975, and sentenced to thirty-five years' imprisonment in the penitentiary. Appellant raises ten issues.

Appellant contends that the trial court erred to reversal in denying his motion to quash the jury panel based upon the state's "purposeful striking of Blacks from the venire of prospective jurors." He asserts that the prosecuting attorney expressly admitted that race was a factor in striking Blacks from the venire of prospective jurors.

The record shows the following:

"MR. PELFREY: I make a motion to quash the selection of this jury and challenge the State of Alabama as to their strikes--of the 13 strikes with the exception of the 7th strike, the 8th strike, the 11th and 12th strikes [, all] strikes were black prospective jurors on the venire, and only four of their strikes were of white prospective jurors.

"THE COURT: How many strikes did each side have?

"MR. PELFREY: 13, your Honor.

"MR. LeMAISTRE: Judge, we strike jurors based on information that we have on age--. You know, race enters in but we don't strike all black veniremen. We have never shown a history of striking black people in any particular class of case. And the people that were struck in this particular case were struck for reasons other than race. And we just deny that we have attempted to systematically exclude black people from this venire or any other venire.

"We had 13 strikes. Had we chosen to do so we could have excluded all blacks from the jury. There are at this point two blacks that will serve and two alternates with possibility of service.

"THE COURT: You have two on it plus two alternates?

"MR. LeMAISTRE: One alternate. There on this jury that [is] black.

"THE COURT: Okay. Overrule your motion."

We find that this issue has been properly preserved for our review. After a review of the facts, we are constrained to remand this cause pursuant to the holding of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Accordingly, this case is remanded to the trial court with instructions that the court give the prosecutor the opportunity to come forward with explanations for his use of the peremptory strikes. If the court determines that the strikes were not race-neutral, then appellant is entitled to a new trial. Ex parte Owens, 531 So.2d 21 (Ala.1987). In the event that the trial court rules that appellant is not entitled to a new trial, the court shall make written findings on this issue and forward those, along with a transcript of the hearing, to this court.

In view of the holding above, we pretermit discussion of the remaining issues raised.

On original appeal, we remanded this case, in accordance with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the trial court with instruction that the court give the prosecutor the opportunity to come forward with explanations for his use of peremptory strikes. ¹

Originally, we found that, after special qualifications by the trial judge, there remained 12 black persons on the jury venire. Each side had 13 strikes. The prosecutor utilized his strikes in striking nine blacks from the venire, with the last black stricken being used as an alternate, who did not serve during deliberations. Appellant struck one black from the venire. The jury consisted of two black members and ten white members.

In accordance with our instruction, the lower court conducted a hearing wherein the prosecutor gave the following explanations for the utilization of his peremptory strikes in striking the nine black venirepersons:

Henry Efford:

"My record, Judge, reflects that my first strike was Henry Efford who was a black male, age twenty-five at that time, residing at Route 1, Box 399, Louisville. That was the State's first Strike.

"We struck Mr. Efford for several reasons: one of which, we had recently, prior to that date, prosecuted a defendant named Efford in the Bullock County Circuit Court, and I did not know whether this person was related or not, and chose not to allow a person by that name to serve on this jury, and took a strike to exclude him. Also, as this Court is aware, but for the sake of the appeal that will follow this ruling, perhaps this particular case, State versus Rodney Floyd, dealt with a situation of a crime where it was alleged that an approximately twenty-year-old black male raped an elderly lady in the neighborhood of seventy or seventy-five years old at the time. It was my thinking that I did not want any young people serving on this jury, and it was my objective to strike whatever young people I could from that venire.

"As I've already stated, Mr. Efford was twenty-five at the time of the trial of this case, and we struck him for the additional reason of his youth, or what the State determined to be his youth at that time."

Velma Efford:

"The second strike we took was a black female by the name of Velma Efford. She at the time of this trial was twenty-six years old. She, I believe, was the sister of our first strike as they have the same address, Route 1, Box 99, Louisville, or, perhaps, they are husband and wife. Again, the juror's last name is the same as a criminal defendant that I have prosecuted previously in Bullock County. Again, she fell into the age range that we were attempting to exclude from this case."

Christine G. Whigham:

"My third strike, I believe the record will reflect, was Christine G. Whigham, a black female, who at the time of the trial was twenty-six years old. She resided at Route 1, Box 321, Clayton, Alabama.

"We chose to strike Ms. Whigham because, again, she fell within the age framework that we would prefer not to have sit in judgment on a case with the facts that the State versus Rodney Floyd had in it, an additional factor that did not relate to the first two strikes that I took but did relate to Ms. Whigham and several others who I did get in to. We also did not feel that we would want to put a juror who knew the defendant in the position of judging the case although I'm sure the record may reflect that your Honor questioned potential jurors as to whether that knowledge or knowing the defendant would bias or prejudice them in any way or whether they could make a decision based on the facts and put that aside, and I feel certain that each of these people we struck responded in the affirmative.

"It is still the State's position that this type of case, of most serious nature, could be best judged by totally objective people that didn't have any potential bias one way or the other, and we sought to eliminate persons who knew the defendant in this case."

Orlando Rumph:

"Our fourth strike was Orlando Rumph who at the time of this trial was twenty-three. His address was Route 1, Box 131, Clayton. Again, he fell into the age category that I chose to exclude as much as possible in this particular case, and he also on voir dire admitted knowing the defendant, and for that reason we--for that additional reason we chose to strike him.

"Now, back to my third strike which was Ms. Whigham. I believe I related this, but just for clarification, she did state during voir dire questions that she did know the defendant, Rodney Floyd."

Malcolm Hamilton:

"My fifth strike was Malcolm Hamilton. At the time of this trial he was thirty years of age residing at Oak Avenue in Clayton. Mr. Hamilton, again, fell into the age category that we--that I was attempting to exclude from jury service in this particular case based on the type case, and the facts of the case."

Essie C. Knight:

"The sixth strike that I took was Ms. Essie C. Knight. She was thirty-nine years of age at the time of the trial of this case, and on voir dire questioning stated that she knew the defendant, and for that reason we chose to exclude her from jury service by use of a peremptory strike on her."

Linda J. Lowe:

"My ninth strike was Linda J. Lowe. She is a black female who at the time of this trial was aged twenty-nine, living at Route 1, Box 63, Clio. Ms. Lowe was within the age range that we were or I was trying to exclude from the jurors in the trial of this case. On voir dire questioning she also stated she knew the defendant, Rodney Floyd, that being a second reason that we chose to strike Ms. Lowe."

Angela Govan:

"My tenth strike is number fifteen, Ms. Angela Govan....

"Ms. Govan is a black female who at the time of this trial was aged twenty-one and resided at P.O. Box 24 in Clio. She, again, fell into the age range that we were attempting to exclude from service on this jury."

Emanuel McCauley:

"My thirteenth strike, who served as an alternate but did not participate in the rendering of a verdict in this case, was Emanuel McCauley, who at the time of this trial was thirty years old, living at Route 2, Box 145, Clayton. He fell within the age range that the State was attempting to exclude from participation in the trial of this case, and also on voir dire questioning stated that he knew the defendant, and he was struck for that reason also."

On return to remand, the lower court found the following:

"1. That this Court does not necessarily find that a case of purposeful discrimination was established by the Defendant as the strike list affirmatively shows that not all blacks were removed from the jury as they could have been. This Court however, does not make a finding on this as the instructions from the Court of Criminal Appeals seem to require that the Prosecutor must give race-neutral reasons for his strikes without this Court...