Freeman v. State

• Decision Date: 18 September 1992
• Docket Number: CR-90-279
• Citation: Freeman v. State, 651 So.2d 573 (Ala. Crim. App. 1992)
• Parties: David FREEMAN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 573

651 So.2d 573

David FREEMAN v.STATE.

CR-90-279.

Court of Criminal Appeals of Alabama.

Sept. 18, 1992.

Rehearing Denied Oct. 13, l992.

Allen Howell, Richard Shinbaum, Bryan A. Stevenson and Lajuana Davis, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Jean Therkelsen and Melissa Math, Asst. Attys.Gen., for appellee.

PATTERSON, Presiding Judge.

The appellant, David Freeman, was indicted on June 3, 1988, in a six-count indictment: Count I charged murder where two or more persons are murdered by one act or pursuant to one scheme or course of conduct ( § 13A-5-40(a)(10),Code of Alabama 1975), specifically the murder of M.G. and S.G.; Count II charged the murder of S.G. during a burglary in the first degree ( § 13A-5-40(a)(4)); Count III charged the murder of M.G. during a burglary in the first degree; Count IV charged the murder of S.G. during a robbery in the first degree ( § 13A-5-40(a)(2)); Count V charged the murder of M.G. during a robbery in the first degree; and Count VI charged the murder of M.G. during rape in the first degree or an attempt thereof ( § 13A-5-40(a)(3)).The appellant was arraigned on April 21, 1989, and pleaded not guilty and not guilty by reason of mental disease or defect.A jury found him guilty on August 20, 1989, of the capital offenses charged in all six counts of the indictment and, after a sentencing hearing, recommended, by an advisory verdict, punishment by death by a vote of 11 to 1.After a second sentencing hearing before the trial court, the trial court found the existence of two aggravating circumstances and four mitigating circumstances.It weighed the aggravating and mitigating circumstances, while taking into consideration all the evidence offered during the trial, all circumstances and evidence offered on behalf of and pertaining to the appellant, the presentence investigation report, and the recommendation of the jury, and on October 18, 1989, sentenced the appellant to death, thereby accepting the jury's recommendation.From this conviction and death sentence, Freeman appeals.

The state presented evidence tending to show that the appellant killed M.G. and her teenage daughter, S.G., by stabbing them numerous times with a knife and that after killing the victims, he fled the scene in an automobile belonging to M.G.There was considerable demonstrative evidence linking the appellant to the crime scene.Semen found in M. G.'s vagina and blood on a cloth at the scene were consistent with the appellant's blood type.

A comparison of bite marks on the appellant's arm when he was arrested with the victims' dental impressions revealed that the bite marks had been inflicted by S.G. Blood matching that of the women was found on the appellant's clothing and in the automobile that he had driven from the scene.A comparison of the shoe prints at the scene--one being on M.G.'s shirt--with the prints made with the appellant's shoes disclosed that the prints at the scene had been made by the appellant's shoes.The knife used to cut clothing from the victims' bodies and to stab the victims was discovered in the stolen automobile.A latent print lifted from the stolen automobile matched the appellant's fingerprint.A knife sheath that was found in the apartment where the appellant was staying at the time fit the knife found in the automobile.It is fair to say that the evidence of the appellant's guilt is overwhelming.Further, the appellant confessed to the killings, and his confession was admitted into evidence.The appellant did not testify at either the guilt or sentencing phase of his trial, and the witnesses he presented supported only his plea that he was not guilty by reason of mental disease or defect.

As 1 of his 18 issues, Freeman, who is white, contends that the prosecution's exercise of 9 of its 18 peremptory strikes to strike 9 of the 11 blacks on the venire was racially discriminatory.Defense counsel struck black veniremembers on his sixth and twelfth strikes.No black served on the appellant's jury.As the attorney general concedes, by virtue of Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411(1991), Freeman has standing to assert this issue.However, because no motion was made at trial pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), this issue must be reviewed under the "plain error"rule, A.R.App.P. 45A.

The attorney general, relying on Kuenzel v. State, 577 So.2d 474(Ala.Cr.App.1990), argues that the alleged error is not plain error because the appellant has failed to establish a prima facie case of purposeful discrimination.In Kuenzel, the court found that the appellant failed to present a prima facie case where the record showed that the prosecution had used 6 of its 15 strikes to excuse 6 of the 11 black veniremembers and that 2 blacks served on the jury.Id. at 485-86."For plain error to exist in the Batson context, the record must raise an inference that the state engaged in 'purposeful discrimination' in the exercise of its peremptory challenges."Guthrie v. State, 616 So.2d 913, 914(Ala.Cr.App.1992)(citingEx parte Watkins, 509 So.2d 1074(Ala.), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226(1987)).

We disagree with the attorney's general's contention and find Kuenzel, by its facts, to be distinguishable.The instant record is clearly sufficient to show that a prima facie case of purposeful discrimination could be made by the appellant.See, e.g., Ex parte Bankhead, 585 So.2d 112(Ala.1991)(wherein the court, under the plain error doctrine, implicitly found a prima facie case of discrimination where the prosecutor...