Freeman v. State

• Citation: 651 So.2d 576
• Decision Date: 06 May 1994
• Docket Number: No. CR-90-0279,CR-90-0279
• Parties: David FREEMAN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 576

651 So.2d 576

David FREEMAN v. STATE.

No. CR-90-0279.

Court of Criminal Appeals of Alabama.

May 6, 1994.

Rehearing Denied July 29, 1994.

Certiorari Denied Dec. 9, 1994

Alabama Supreme Court 1931570.

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

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

On Return to Remand

PATTERSON, Judge.

Finding on original submission that the record in the instant case presented a prima facie case of purposeful discrimination by the state in the exercise of its peremptory jury challenges, we remanded this case to the trial court for the state to present its reasons for its peremptory strikes of black prospective jurors, as required by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987). Freeman v. State, 651 So.2d 573 (Ala.Cr.App.1992). We instructed the trial court to evaluate these reasons in accordance with the principles established in Ex parte Branch, and to make due return to this court of the proceedings below, including the court's specific findings of fact. The trial court has complied with our remand by conducting an evidentiary hearing at which the state was afforded an opportunity to provide reasons for its peremptory strikes and by filing its return, which includes a transcript of the proceedings below and its order setting out its findings of fact and conclusions of law.

The appellant, David Freeman, is white. As we recognized in our original opinion, a defendant in a criminal case has standing to request a Batson hearing whenever the state has exercised peremptory challenges so as to exclude members of a distinct racial group regardless of whether the defendant is a member of that distinct group. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Ex parte Bird, 594 So.2d 676 (Ala.1991); U.S. Const. amend. VI and XIV; Ala. Const. art. I, § 6. Thus, the appellant has standing to contest the state's use of peremptory strikes to eliminate blacks from his trial jury.

The trial of this case began on August 14, 1989, and after voir dire examination of the prospective jurors, conducted by the trial court, with the assistance of questions submitted by the parties, a jury was selected and empaneled. Eleven veniremembers, 5 of whom were black, were either excused or successfully challenged for cause, leaving a venire of 48 persons for selection purposes. Each side exercised 18 peremptory strikes. By agreement, the veniremember who was the object of the last strike of each party served as an alternate juror. Although there appears to be some confusion as to whether there were 10 or 11 blacks on the venire, we think the record supports the appellant's conclusion that there were 10. The state used 9 of its 18 strikes to remove blacks. The appellant struck 1 black. All the blacks in the venire were eliminated by peremptory strikes; therefore, the jury that tried this case was all white.

The record discloses that the district attorney ¹ exercised the peremptory strikes for the state with the assistance of his deputy. In the remand hearing held on January 27, 1993, the district attorney testified, under oath, that no one had been able to locate his trial notes relating to information about the veniremembers and his reasons for his peremptory strikes. He stated that he did not intentionally lose or destroy his notes. He further testified that he struck this jury several years before the hearing and that, at the time, he had no reason to believe that he would later be called upon to give his reasons for those strikes. He explained that he relied on the contemporaneous notes of his deputy district attorney to "reconstruct[ ] the striking of a general nature of the jury," and to gain "some understanding as to why the jurors were struck in the fashion that [they were]."

The district attorney candidly admitted at the remand hearing that he did not know every reason for striking the veniremembers, but he did claim to have "the general overview of how we wanted the jury struck." He then testified about the general characteristics that the state was seeking to avoid in the jurors, and he attempted to relate those characteristics to the facts of the case. He first explained that, because he anticipated that there would be testimony from psychiatric experts and because the appellant's sole defense was insanity, "[o]ne of the things we wanted particularly in voir dire and wanted to know particularly was what experience did each juror have with psychiatrists, insanity defense, mental problems--were they recovering from previous bouts of insanity, or something like that." In giving his reasons for having on his strike list a particular veniremember who was eventually struck by the defense and also his reasons for not striking another veniremember who served on the jury, he further explained his reasoning:

"Well, the way this case was tried and what I try to do from the outset was totally debunk insanity as a defense and to bring in--basically take the position in the jury that there is no way that any psychiatrist or psychologist can go back into a point of time and testify to a person's mental state....

"....

"... I was trying, first, to get people who had interaction with psychiatrists; secondly, those who had psychologists testify; thirdly, those who are kind of down the scale from those, all the way down.... [For example, t]he fact that someone went from their family to get counseling on how to deal with Alzheimer's disease or their parents as ranked against someone who had been treated by a psychiatrist for manic disorder, it just doesn't--the steam whistle on the boiler doesn't go off."

He also explained that another important concern was that the prosecution "certainly did not want a juror to serve that had an abiding feeling that they could not support the death penalty called for by the facts on religious or other grounds." A third area of concern, he stated, was that because "the nature of the offense itself was a serial killing of two women in a sexual nature[, the prosecution] certainly wanted anyone who had any kind of record of sexual abuse or involvement as a defendant or possible suspect or defendant in those kinds of cases ... struck from the jury." He also noted that the prosecution generally tries to strike veniremembers involved in prison ministries. He pointed out that the defense's pattern of striking affected the state's strikes, stating that the defense struck veniremembers who the state would otherwise have struck. In recognizing that he had more veniremembers on his strike list than he had strikes, he explained that he used a "plus and minus" system in striking. He testified that he would not have struck black veniremember J.D., who was the only black struck by the defense.

After the district attorney explained his probable reasons for striking the veniremembers, the appellant offered no evidence to refute those reasons or to show that they were a sham or pretext. The trial court expressed frustration with the fact that the appellant's cross-examination of the district attorney did not extend beyond a superficial examination about the notes used by the district attorney to refresh his recollection. Rather than relying upon rebuttal evidence, the appellant argued that the trial court should not accept the district attorney's reasons because, he argued, they were not race-neutral and because, he asserted, it was apparent from the district attorney's testimony that the reasons he gave at the hearing for striking veniremembers had been reconstructed from the notes of his deputy and from other material and thus were not his actual reasons for striking. He further pointed out that the district attorney failed to give any reason whatsoever for the striking of several of the black veniremembers and as to those veniremembers offered only a plea of good faith; that characteristics offered by the district attorney for justifying his strikes against blacks were shared by some whites who served on the jury; that some of his reasons for striking black veniremembers were group-based without any indication that those veniremembers shared the characteristics associated with that group; and that the Montgomery District Attorney's office has a history of discrimination in the selection of jurors.

The defense also introduced two exhibits. Exhibit 1 consisted of typewritten notes prepared by the staff of the attorney general's office and used by the district attorney, in testifying, to refresh his recollection of the reasons for his strikes. Most of the information offered in these notes is annotated with the page number of the transcript of the voir dire proceedings where that particular information can be found. Exhibit 2 consisted of the computer-generated information sheets on each potential juror, all dated August 14, 1989. On most of these sheets are handwritten notes of the deputy allegedly made at the time of trial and/or the notes that she had available to her. The remaining handwritten notes reflect all information pertaining to each veniremember that was disclosed in the voir dire questioning. These notes are accompanied by the page number of the trial transcript on which the noted information can be found. We consider it reasonable to assume that these notes were added to Exhibit 2 after our remand opinion. The notes on the computer-generated pages were not used by the district attorney during his testimony, but were one of the bases for making the typewritten notes constituting Exhibit 1.

After the evidentiary hearing, the trial court made its findings of fact and conclusions of law, as follows:

"This cause having come before the Court on remand from the Court of Criminal Appeals for this Court to conduct a factual inquiry into the jury selection...