Harris v. State
Decision Date | 26 April 1988 |
Docket Number | 6 Div. 336 |
Citation | 545 So.2d 146 |
Parties | Robert Wesley HARRIS v. STATE. |
Court | Alabama Court of Criminal Appeals |
J. Louis Wilkinson and Virginia A. Vinson, Birmingham, for appellant.
Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.
Robert W. Harris was convicted for the capital offense involving robbery-murder and sentenced to life imprisonment without
the possibility of parole. Three issues are raised on this appeal from that conviction.
Harris argues that the State was guilty of racial discrimination in striking eight of the eleven prospective black jurors.
The prosecution used eight of its fifteen peremptory strikes to remove blacks from the jury venire. The State used seven peremptory strikes to remove whites from the jury. Without making a determination whether or not the defense had established a prima facie case of discrimination, the trial judge requested the State to explain its strikes.
The black venire persons struck and the prosecutor's stated reasons for striking them were:
At the conclusion of his individual explanations, the prosecutor stated that his strikes "are not based on race, they are not based on prejudice, they are not based on bias."
The trial judge found that the prosecutor had "given adequate reasons" and denied the defendant's "Batson motion."
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) "changed a defendant's burden of proof on the issue of the prosecution's using peremptory challenges to systematically exclude blacks from serving on the jury." Ex parte Jackson, 516 So.2d 768, 770 (Ala.1986). Batson, although a "clear break" with past precedent, Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986), made "no attempt to instruct these courts how best to implement our holding today." Batson, 476 U.S. at 99-100, n. 24, 106 S.Ct. at 1724, n. 24.
In this case, the trial judge made commendable and significant efforts to satisfy the Batson requirements. However, his attempts were hindered by the lack of any existing implementation procedures.
In Ex parte Branch, 526 So.2d 609 (Ala.1987), decided after this defendant's conviction, the Alabama Supreme Court stated, "In this opinion we will set forth our understanding of the Batson decision, and the procedures that we believe must be followed to implement it." Branch, 526 So.2d This case must be remanded for further findings by the trial court under the specific guidelines of Branch. Of all the black prospective jurors struck by the State, juror Hart raises the most concern. With regard to that juror, we make two observations. First, Branch, 526 So.2d at 623. Second, "Failure by a prosecutor to explain [or satisfactorily explain] every peremptory strike of black jurors is not necessarily fatal to the prosecutor's ability to rebut a prima facie case; likewise, explanation of most of the strikes on nonracial grounds does not necessarily rebut the inference created by Batson that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' " United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986). See also United States v. Forbes, 816 F.2d 1006, 1011 (5th Cir.1987).
at 616 (emphasis added). Although a "Branch hearing" will not automatically be required in every case in which a "Batson hearing" has been conducted, see Ex parte Shelton, 521 So.2d 1038 (Ala.1988); Avery v. State, 545 So.2d 123 (Ala.Cr.App.1988); Scales v. State, 539 So.2d 1069 (Ala.Cr.App.1988) (Bowen, P.J., dissenting), Branch commands that this Court proceed with an abundance of caution in that regard.
In remanding this cause we recognize that, in almost every case, the prosecution tendered racially neutral explanations for challenging black jurors. See United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987) ( ); United States v. Cartlidge, 808 F.2d 1064, 1070-71 (5th Cir.1987) ( ); United States v. Ratcliff, 806 F.2d 1253, 1256 (5th Cir.1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1625, 95 L.Ed.2d 199 (1987) ( ); United States v. Mathews, 803 F.2d 325 (7th Cir.1986), reversed on another ground, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) ( ); People v. Chambie, 189 Cal.App.3d 149, 234 Cal.Rptr. 308, 313 (1987) ( ); People v. Moss, 188 Cal.App.3d 268, 233 Cal.Rptr. 153, 160 (1986) (); People v. Peters, 144 Ill.App.3d 310, 98 Ill.Dec. 731, 739, 494 N.E.2d 853, 861 (1986) ( ); Phillips v. State, 496 N.E.2d 87, 89 (Ind.1986) ( ); Johnson v. State, 731 P.2d 993, 998-99 (Okla.Cr.1987), cert. denied, --- U.S. ----, 108 S.Ct. 35, 98 L.Ed.2d 167 (1987) ( ). But see People v. Trevino, 39 Cal.3d 667, 692, n. 25, 217 Cal.Rptr. 652, 666 n. 25, 704 P.2d 719, 733, n. 25 (1985) ().
However, courts "should bear in mind that the command of Batson is to eliminate, not merely to minimize, racial discrimination "It is important to emphasize, as we did in United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986), that under Batson, the striking of a single black juror for a racial reason violates the Equal Protection Clause, even where other black jurors are seated, and even when there are valid reasons for the striking of some black jurors." United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir.1987), vacated and remanded in part and reversed in part on another ground, 836 F.2d 1312 (11th Cir.1988).
in jury selection." David, 803 F.2d at 1571.
As in Branch, "[a]fter reviewing this cause, we cannot conclude that the trial judge's findings should be affirmed; neither can we conclude, at this time, that we should reverse." Branch, 526 So.2d at 627. From the record, this Court cannot adequately determine the existence of "the types of evidence that can be used to raise the inference of discrimination," Branch, 526 So.2d at 622 or "the types of evidence that can be used to overcome the presumption of discrimination and show neutrality." Branch, 526 So.2d at 623. The three black prospective jurors who were not removed by the State are not identified in the record. While it might be assumed that these three remained on the jury, the record contains no affirmative showing. The record does contain the allegation of defense coun...
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