Harris v. State

• Decision Date: 18 April 1997
• Docket Number: CR-95-1774
• Citation: 705 So.2d 542
• Parties: Curtis HARRIS, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 542

705 So.2d 542

Curtis HARRIS, Jr. v. STATE.

CR-95-1774.

Court of Criminal Appeals of Alabama.

April 18, 1997.

Rehearing Denied June 20, 1997.

Certiorari Denied Oct. 24, 1997

Alabama Supreme Court 1961619.

Lindsey Mussleman Davis, Florence, for appellant.

Bill Pryor, atty. gen., and Elizabeth Kellum, special deputy atty. gen., for appellee.

LONG, Presiding Judge.

The appellant, Curtis Harris, Jr., was convicted of robbery in the first degree, a violation of § 13A-8-41, Ala.Code 1975, in a robbery involving a convenience store. After application of the enhancement provisions of § 13A-5-6(a)(4), he was sentenced to 20 years' imprisonment.

I.

The appellant contends that the trial court erred in refusing to require the state to disclose the identity of a confidential informant who initially identified the appellant as the offender depicted on the videotape of the convenience store robbery.

As a general rule, the state has the privilege of not producing the name of an informant if the informant is not an active participant in the illegal transaction that led to the charges against the accused. Sanders v. State, 629 So.2d 715 (Ala.Cr.App.1993); Self v. State, 420 So.2d 798, 800 (Ala.1982). See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). This privilege is subject to a balancing test, which weighs the defendant's need for disclosure against the public's interest in preserving the informant's anonymity. Roviaro, 353 U.S. at 59-62, 77 S.Ct. at 627-28. "[D]isclosure of the identity of an informant cannot be required where the legality [of the arrest] is established by evidence apart from the informer's communication." Pugh v. State, 493 So.2d 388, 391 (Ala.Cr.App.1985), aff'd, 493 So.2d 393 (Ala.1986), quoting 76 A.L.R.2d 262, 331 (1961).

The informant who identified the appellant was not a material witness, but was merely someone asked by police to view the videotape to determine if he recognized the offender. When the informant saw the videotape, he was able to identify the offender by his street name. The appellant was not arrested at that time. Instead, the investigating officer showed the videotape to another police officer, Officer Dexter Elliott, who had had previous contact with the appellant and who was able to positively identify the offender on the videotape as the appellant. Next, the robbery victim identified the appellant from a photographic lineup. Finally, the appellant gave an incriminating statement during an interview by police. At that point, the appellant was arrested.

Because the appellant has not asserted any defense that he could have used had he known the identity of the informant and because the informant was essentially an identification witness, was not a participant in the crime, and did not provide probable cause for the arrest, we find that the trial court did not err in allowing the state to withhold the informant's identity. See Harrell v. State, 555 So.2d 257 (Ala.Cr.App.), aff'd, 555 So.2d 263 (Ala.1989).

II.

The appellant contends that the state used its peremptory challenges against prospective jurors in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, the appellant argues that the state improperly used one of its peremptory strikes to remove one of two black females from the jury venire.

After the appellant's Batson objection, the trial court did not expressly find that a prima facie case of discrimination had been made, but simply requested that the state give reasons for its peremptory strike. Without objecting, the state offered explanations for its strike.

We note that, initially, the party alleging the discriminatory use of peremptory challenges bears the burden of establishing a prima facie case of discrimination. Ex parte Branch, 526 So.2d 609, 622 (Ala.1987). Once a prima facie case has been established, a presumption is created that the peremptory challenges were used to discriminate against black jurors. Ex parte Branch, 526 So.2d at 623. Where, as in this case, the trial court requires the opposing counsel to state reasons for the peremptory strikes without first requiring that a prima facie case of discrimination be established, this Court will review those reasons and the trial court's ultimate decision on the Batson motion without determining whether the moving party met its burden of proving a prima facie case of discrimination. McLeod v. State, 581 So.2d 1144 (Ala.Cr.App.1990). When the trial court has required a party to state reasons, that party must articulate a clear, specific, and legitimate reason for the challenge that relates to the particular case to be tried and that is nondiscriminatory. Ex parte Bird, 594 So.2d 676, 679 (Ala.1991), citing Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Once the responding party has articulated a race-neutral reason or explanation for eliminating the black jurors, the moving party can offer evidence showing that the reason or explanation was merely a sham or pretext. Ex parte Branch, 526 So.2d at 624. When the trial court has followed this procedure, its determination will be overturned only if that determination is clearly erroneous. Ex parte Branch, 526 So.2d at 625.

Accordingly, we will review the relevant portions of the record to determine whether the trial court's determination was clearly erroneous.

The appellant was accused of robbing a convenience store by striking the cashier in the head with a bottle, reaching into the cash register, and taking $65 after the cashier moved away from the register. The prosecutor stated that he exercised a peremptory challenge against the juror in question because she had worked as a cashier. The prosecutor further explained that he had struck all cashiers or former cashiers on the venire because he believed "they would hold the victim to a higher standard and believe what [she] did in response and her actions were not appropriate as a cashier." (R. 123-25.)

Where the prosecutor is required to explain a peremptory strike, he or she must offer " 'a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. However, this showing need not rise to the level of a challenge for cause.' " McLeod, 581 So.2d at 1155, quoting Ex parte Branch, 526 So.2d at 623.

In this case, the prosecutor articulated a race-neutral reason for striking the black female juror. The record indicates that the prosecutor struck a white juror for substantially the same reason. Evidence of similar treatment overcomes the presumption of discrimination. Weaver v. State, 678 So.2d 260, 272 (Ala.Cr.App.1995), rev'd on other grounds, 678 So.2d 284 (Ala.1996). Once a race-neutral explanation for the strike was given, the burden then shifted to the appellant to offer evidence showing that the reasons or explanations were merely shams or pretextual. The appellant offered no such evidence. (R. 125.) The trial court's decision was not clearly erroneous.

III.

The appellant contends that the trial court erred in denying his motion to suppress the statement he made to the police because, he says, it was not given knowingly, voluntarily, and intelligently.

"In determining whether a confession is voluntary, the trial court's finding of voluntariness need only be supported by a preponderance of the evidence. Seawright v. State, 479 So.2d 1362, 1367 (Ala.Cr.App.1985). The trial court's decision will not be disturbed on appeal unless it is manifestly contrary to the great weight of the evidence. ' "The test for the voluntary nature of an extrajudicial confession or inculpatory statement is whether in light of all the surrounding circumstances, the statement was free from inducement, threat or promise, either expressed or implied, which would have produced in the mind of the accused any fear of harm or hope of favor." ' Seawright, 479 So.2d at 1367, citing Rogers v. State, 365 So.2d 322 (Ala.Cr.App.), cert. denied, 365 So.2d 334 (Ala.1978)."

Dixon v. State, 588 So.2d 903, 907 (Ala.1991), cert. denied 502 U.S. 1044, 112 S.Ct. 904, 116 L.Ed.2d 805 (1992).

Whether a waiver of Miranda rights is knowingly and intelligently made depends on the facts of each case, considering the totality of the circumstances surrounding the interrogation, including the characteristics of the accused, the conditions of the interrogation, and the conduct of the law enforcement officials. Staten v. State, 547 So.2d 603 (Ala.Cr.App.1988), rev'd on other grounds, 547 So.2d 607 (Ala.1989); Moore v. State, 415 So.2d 1210 (Ala.Cr.App.1982), cert. denied, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982). The question whether a confession is knowing and voluntary is a question of law for the trial court, and the trial court's finding on that issue will not be reversed on appeal unless it is contrary to the great weight of the evidence or is manifestly wrong. Staten; Hubbard v. State, 500 So.2d 1204 (Ala.Cr.App.), aff'd, 500 So.2d 1231 (Ala.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780 (1987).

The appellant's contention that he was coerced by the police to confess and that he did not fully understand the situation because he was not sober at the time of interrogation is unpersuasive. The record establishes the voluntariness of his statement. His Miranda warnings were thoroughly covered, and he signed a waiver of rights form. Officer Gary Walker testified that no promise or threat was made to obtain the appellant's statement. He further stated that the appellant did not appear to be under the influence of alcohol or any other substance during questioning and that the appellant had been playing basketball with a group of young men when he agreed to come to the police station.

The trial court found as follows:

"The evidence that has been offered in these hearings, while in conflict...