Grimsley v. State

• Decision Date: 19 January 1996
• Docket Number: CR-94-889
• Citation: 678 So.2d 1197
• Parties: Olin GRIMSLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1197

678 So.2d 1197

Olin GRIMSLEY v. STATE.

CR-94-889.

Court of Criminal Appeals of Alabama.

Jan. 19, 1996.

Rehearing Denied March 8, 1996.

Certiorari Denied May 17, 1996

Alabama Supreme Court 1951003.

David Utter, New Orleans, Louisiana, for Appellant.

Jeff Sessions, Atty. Gen., and Jean Therkelsen, Asst. Atty. Gen., for Appellee.

ON RETURN TO REMAND

TAYLOR, Presiding Judge.

The appellant, Olin Grimsley, was convicted of robbery in the first degree, a violation of § 13A-8-41, Code of Alabama 1975. The appellant was originally charged with murder made capital because the murder occurred during a robbery. A mistrial was declared when the jury was unable to reach a verdict. The appellant was then retried and was acquitted of the murder charge and was found guilty of robbery in the first degree. This court reversed his robbery conviction in Grimsley v. State, 632 So.2d 547 (Ala.Cr.App.1993), because the trial court had denied the appellant the right to fully cross-examine a state's witness. The appellant was tried again on the robbery charge and was again found guilty. He appealed to this court and we remanded this case so that the trial court could conduct a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), hearing after considering the Alabama Supreme Court's decision in Ex parte Thomas, 659 So.2d 3 (Ala.1994). Grimsley v. State, 678 So.2d 1194 (Ala.Cr.App.1995).

The trial court held a Batson hearing, found no violation of Batson, and filed a return to remand with this court.

"A defendant claiming a Batson violation must make a prima facie showing that the prosecution used its peremptory strikes in a discriminatory manner. Jackson v. State, 594 So.2d 1289 (Ala.Cr.App.1991). Only when the defendant establishes facts and circumstances that raise an inference of discrimination must the state give its reasons for its peremptory strikes. Carter v. State, 603 So.2d 1137 (Ala.Cr.App.1992)."

Stokes v. State, 648 So.2d 1179, 1180 (Ala.Cr.App.1994). The party against whom a successful Batson challenge is made must give a "legitimate reason" for striking the prospective jurors. Lane v. State, 625 So.2d 1178, 1181 (Ala.Cr.App.1993). The United States Supreme Court recently in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), defined what is a "legitimate reason." The Court stated:

"The Court of Appeals appears to have seized on our admonition in Batson that to rebut a prima facie case, the proponent of a strike 'must give a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges,' Batson, 476 U.S., at 98, n. 20, 106 S.Ct., at 1724, n. 20 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981)), and that the reason must be 'related to the particular case to be tried,' 476 U.S., at 98, 106 S.Ct., at 1724.... This warning was meant to refute the notion that a prosecutor could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith. What it means by a 'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection. See Hernandez [v. New York, 500 U.S. 352] at 359, [111 S.Ct. 1859] at 1866, [114 L.Ed.2d 395 (1991) ]; cf. Burdine, supra, at 255, 101 S.Ct., at 1094 ('The explanation provided must be legally sufficient to justify a judgment for the defendant ')."

--- U.S. at----, 115 S.Ct. at 1771. (Emphasis added.)

The appellant contends that the prosecution struck five black prospective jurors in violation of Batson. The prosecution contended that it struck three prospective jurors because those jurors had the same blood type as the appellant. The prosecution explained that the case involved extensive evidence concerning the blood type of the blood found on a partially smoked cigarette next to the victim's body. The prosecution also stated that all of the prospective jurors who had the same blood type as the appellant were struck. Another prospective black juror was struck because she was a nurse. The prosecutor contended that, because most of the evidence dealt with blood typing, the prosecution did not want someone trained in the medical field on the jury. Another juror was struck because she was a teacher. The prosecution explained that it did not want teachers on the jury because "someone trained as a teacher would have--would put significant importance [on] a person's IQ as to whether or not they could freely, knowingly, and voluntarily waive the Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] rights." These reasons related to the facts of the case, were not facially discriminatory, and did not violate Batson. Purkett v. Elem, supra.

I

The appellant first contends that there was insufficient evidence to support his conviction for first degree robbery. He argues that the trial court erred in denying his motion for a directed verdict and for a new trial.

"In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis of guilt, but whether a jury might reasonably so conclude."

Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1987).

The state's evidence tended to show that on May 22, 1990, the body of Ella Foy Riley was found in her house in Abbeville. A "Newport" brand cigarette, partially smoked, was found near the victim's body. The victim's pocketbook along with her Social Security card, a check made out to her, her checkbook, and some keys, were found on Marvin Turner Road, approximately six miles from the victim's house. The victim's neighbor, Pamela DeLoach, testified that she had seen a grey car, with two black male occupants, parked by the back door of the victim's house around 10:00 p.m. on the night of May 21. DeLoach described one of the men as having a heavy build and the other as having a medium build. The appellant matched the description of one of the men. A few minutes after she noticed them, the two black males sped away in the car. The neighbor subsequently identified codefendant Willie McNair's car as the car she saw that night parked in front of Riley's house.

Bessie Mae Sanders testified that she saw the appellant and Willie McNair together after 9:30 p.m. on May 21. The appellant testified that McNair picked him up in his car around 5:00 p.m. and that they smoked crack cocaine and drank beer. He stated that McNair took him home around 9:00 p.m. Sanders testified that the appellant commonly smoked "Newport" brand cigarettes and that, on the night of May 21, he had a pack of that brand of cigarettes in his pocket. Sanders also testified that she saw the appellant the morning of May 22 and that he had blood on his shirt.

William H. Landrum, a forensic serologist with the Alabama Department of Forensic Sciences, tested the saliva found on the cigarette near the victim's body. His analysis revealed that the saliva on the cigarette was consistent with the appellant's blood type, in that it was from a type "A" secretor.

There was more than sufficient evidence presented for the case to be submitted to the jury. The trial court properly denied the appellant's motion for a directed verdict and submitted this case to the jury.

The appellant also argues that the trial court erred by denying his motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict. Having determined that this case was correctly submitted to the jury, this issue is moot. The trial court correctly denied the motion for a new trial and the motion for a judgment notwithstanding the verdict.

II

The appellant also contends that the trial court erred in not setting aside his conviction because, he says, the prosecution intentionally violated the attorney-client privilege.

When the appellant first appealed his conviction for robbery he argued that the state violated the attorney-client privilege by obtaining a statement he made to an investigator for a prospective defense counsel who was never retained to represent the appellant. The facts and circumstances surrounding this statement were addressed in depth by this court in Grimsley, where we stated:

"[I]n this case, the prosecution's action is not ground for reversal because there has been no showing that the investigator fell within the umbrella of the attorney-client privilege.

"In Alabama, the attorney-client privilege 'applies to communications made by a person to an attorney with a view to retaining him even though it turns out that such person does not retain the attorney or that the attorney declines the offered retainer.' C. Gamble, McElroy's Alabama Evidence § 390.03 (4th ed. 1991). See also Ala.Code 1975, § 12-21-161. 'Communications to the clerk of an attorney, in the belief that he is acting in such capacity, have the same privileged status as communications made to the attorney himself.' McElroy's, § 390.02. Information acquired by an attorney while acting in a nonlegal capacity, such as an investigator, is not protected by the attorney-client privilege.

"In this case, however, we have a communication made by the appellant to an investigator who was employed by the paralegal, who worked for the attorney and who also had his own investigating firm. Under existing Alabama law, 'both statutory and decisional, the only representative held within the scope of the privilege [is] the attorney's clerk.' Advisory Committee's Notes to Rule 502(a)(4), Proposed A.R.Evid., as published in Southern Reporter Advance Sheets, 615 So.2d, No. 2, May 13, 1993 [adopted January 1, 1996]. See Hawes v. State, 88 Ala. 37, 68, 7 So. 302, 313 (1890) ('It is ......