Ford v. State
Decision Date | 30 September 1993 |
Citation | 628 So.2d 1068 |
Parties | Glenn FORD v. STATE. CR 92-1245. |
Court | Alabama Court of Criminal Appeals |
Jeffrey Crabtree, Daphne, for appellant.
James H. Evans, Atty. Gen., and Steve Willoughby, Asst. Atty. Gen., for appellee.
Glenn Ford, the appellant, was convicted of burglary in the third degree and was sentenced to 15 years' imprisonment. He raises five issues on this direct appeal from that conviction.
The appellant claims that the venire panel from which his jury was selected did not represent a fair cross-section of the community. He complains that only 3 of the 29 persons on the panel, or 10.34%, were black, whereas the black population of Baldwin County is "somewhere between 10 and 16%." R. 25. As in Johnson v. State, 502 So.2d 877, 880 (Ala.Cr.App.1987), the appellant "makes no claim as to proportionality on the master list, but only as to the venire in his case."
The appellant misapprehends the nature of the fair cross-section requirement of the Sixth Amendment. In order to establish a violation of this requirement, the appellant has the burden of proving a systematic exclusion of blacks resulting in their under-representation on the jury rolls. See Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); Robinson v. State, 560 So.2d 1130, 1132 (Ala.Cr.App.1989). The appellant presented no evidence of systematic exclusion and concedes in his brief that "[i]n the instant case, no specific allegation of systematic exclusion can be made." Brief of Appellant at 7.
" "
Johnson v. State, 502 So.2d at 880 (quoting Smith v. State, 364 So.2d 1, 11 (Ala.Cr.App.1978)). The appellant has demonstrated no violation of the Sixth Amendment fair cross-section requirement. See DeFries v. State, 597 So.2d 742, 750 (Ala.Cr.App.1992); White v. State, 587 So.2d 1218, 1221 (Ala.Cr.App.1990), affirmed, 587 So.2d 1236 (Ala.1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d 142 (1992); Brundage v. State, 585 So.2d 238, 239 (Ala.Cr.App.1991); Childs v. State, 574 So.2d 1023, 1024 (Ala.Cr.App.1990).
The appellant claims that the prosecutor's peremptory strike of veniremember W.L., a black man, was racially motivated and that it therefore violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
When the veniremembers were asked on voir dire whether any of them were acquainted with the appellant, W.L. answered that he had known the appellant for R. 17. The prosecution challenged W.L. for cause and the court denied the challenge, commenting that the assistant district attorney could use W.L.'s answer "as a matter of information ... in striking the jury." R. 23. The prosecutor then used one of his peremptory strikes to eliminate W.L. from the jury. W.L. was the only black person struck by the State.
Without determining whether the appellant had established a prima facie case of discrimination under Batson and Ex parte Branch, 526 So.2d 609 (Ala.1987), the trial court ruled that W.L.'s acquaintance with the appellant "was a sufficiently race neutral reason for striking him." R. 30. That ruling was clearly correct. See Ex parte Lynn, 543 So.2d 709, 711 (Ala.1988), cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989); Wilsher v. State, 611 So.2d 1175, 1182 (Ala.Cr.App.1992); Knight v. State, 622 So.2d 426 (Ala.Cr.App.1992); Strother v. State, 587 So.2d 1243, 1247 (Ala.Cr.App.1991).
A prosecutor's explanation for his exercise of a peremptory strike "need not rise to the level of a challenge for cause." Ex parte Branch, 526 So.2d at 623. Contrary to the appellant's argument, "[i]t was ... unnecessary in this case for the prosecution to establish that [W.L.'s] acquaintance with the appellant ... was 'such that it would result in probable prejudice.' " Wilsher v. State, 611 So.2d at 1182.
After the jury had been struck and the clerk had announced the names of those veniremembers who had been chosen for jury service, Juror J.H. asked to approach the bench. He told the trial judge that he knew the appellant's wife "real well" and would feel "a little awkward" about serving on the jury. R. 27. The assistant district attorney suggested that Juror J.H. be excused since "[w]e have an alternate that's been selected [and] [w]e can proceed without having to reselect a jury," R. 27. Defense counsel objected and the following occurred:
The test for determining whether a juror who is acquainted with someone involved in the litigation should be excused for cause is whether the juror's acquaintance with that person would result in "probable prejudice." Vaughn v. Griffith, 565 So.2d 75, 77 (Ala.1990), cert. denied, 498 U.S. 1097, 111 S.Ct. 987, 112 L.Ed.2d 1072 (1991); Village Toyota Co. v. Stewart, 433 So.2d 1150, 1156 (Ala.1983).
Black Belt Wood Co. v. Sessions, 514 So.2d 1249, 1255 (Ala.1986) (quoting Alabama Power Co. v. Henderson, 342 So.2d 323, 327 (Ala.1976)).
Morrison v. State, 601 So.2d 165, 168 (Ala.Cr.App.1992).
Here, the trial court did not specifically ask Juror J.H. whether his acquaintance with the appellant's wife would affect his ability to be impartial as a juror. Nevertheless, "[b]road discretion is vested with the trial court in determining whether or not to sustain challenges for cause." Ex parte Nettles, 435 So.2d 151, 154 (Ala.1983).
Carter v. State, 420 So.2d 292, 295-96 (Ala.Cr.App.1982). See Dinkins v. State, 584 So.2d 932, 933 (Ala.Cr.App.1991) ( ); Woods v. State, 568 So.2d 331, 332-33 (Ala.Cr.App.1990) (...
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