Hart v. State
| Decision Date | 28 February 1992 |
| Docket Number | CR-89-722 |
| Citation | 612 So.2d 520 |
| Parties | Gary Davis HART II v. STATE. |
| Court | Alabama Court of Criminal Appeals |
The opinion previously issued in this case is hereby withdrawn and the following opinion substituted therefor.
The appellant, Gary Davis Hart II, was found guilty of murder made capital because it was committed during the course of a robbery in the first degree. See § 13A-5-40(a)(2), Code of Alabama 1975. The jury, by a vote of 11 to 1, recommended the death penalty. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.
The evidence presented at trial tended to show the following: On August 12, 1989, the appellant and his accomplice, who were each armed with a handgun, entered the rear door of the L & N Seafood restaurant in Mobile, Alabama. Standing near the rear door was the restaurant's bartender, Steve Mason. Upon entering the restaurant, the appellant grabbed Steve Mason by the shirt, prodded him in the back with a .38 caliber pistol, and announced "this is a hold up, take me to the safe." Mr. Mason led the appellant to the office where the victim, Todd Evans, was working. Mr. Mason then informed the victim that they were being robbed and that the appellant wanted money. The victim did not reply but met the demand for money with a look of surprise. The appellant then shouted, "This ain't no bullshit," and brought the pistol within two feet of the victim's head and fired. The bullet entered the left side of the victim's face, traveled through his brain, and then lodged under the scalp on the right side of his head.
Immediately following the shooting, Steve Mason retrieved a cash drawer from a filing cabinet in the victim's office and gave it to the appellant. The appellant and his partner then fled the scene on foot. They were spotted at a nearby hotel and after a brief chase were apprehended. During the chase, the appellant discarded a .38 caliber pistol, which was later identified as the murder weapon. At the time of the appellant's arrest, he was in possession of $499 in cash.
The appellant presents numerous issues on appeal, many of which were not raised by objection in the trial court. This fact alone will not bar our review of such issues in a case involving the death penalty: however, it will weigh against any claim of prejudice. Ex parte Kennedy, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). See also, Rule 45A, Ala.R.App.P.; Williams v. State, 601 So.2d 1062 (Ala.Cr.App.1991).
The appellant, relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), maintains that he was denied the right to a fair and impartial jury by the state's use of peremptory challenges to remove black veniremembers from the jury. The state and the defense counsel were each allowed 12 peremptory strikes. The state used three of its strikes to remove black veniremembers. Two black veniremembers sat on the jury. After the jury was selected the appellant made a Batson motion, claiming that the state struck 60% of the black veniremembers for racial, not neutral, reasons.
Immediately after the Batson motion was made, the state volunteered its reasons for striking black veniremembers. Once the prosecution responds to a Batson motion and offers race-neutral explanations for its peremptory challenges, the issue of whether a prima facie showing of intentional discrimination was made by the appellant becomes moot. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). This court has also concluded that where the trial court has made no express finding of a prima facie case of intentional discrimination, but the prosecution nonetheless explains its peremptory challenges, then such a finding will be implied and we will proceed directly to the evaluation of the prosecutor's explanations. Williams v. State, 548 So.2d 501 (Ala.Cr.App.1988), cert. denied, 489 U.S. 1028, 109 S.Ct. 1159, 103 L.Ed.2d 218 (1989); Currin v. State, 535 So.2d 221 (Ala.Cr.App.), cert. denied, 535 So.2d 225 (Ala.1988).
The state gave the following reasons for its peremptory strikes: Juror 150 "was struck because she was unemployed;" juror 121 was struck "because she was the wife of a minister;" and juror 146 was struck "because, first of all, he had an earring in his ear, secondly, ... during my questioning, [he was] hostile, ... and during the questioning of Mr. Pennington, totally inattentive."
Each of the grounds articulated by the prosecutor in justifying his peremptory strikes could be considered a reasonable and race-neutral explanation for the exercise of a peremptory challenge. The fact that a veniremember is unemployed may constitute a valid reason for the exercise of a peremptory strike. Stephens v. State, 580 So.2d 11 (Ala.Cr.App.1990), aff'd, 580 So.2d 26 (Ala.1991), cert. denied, 502 U.S. 859, 112 S.Ct. 176, 116 L.Ed.2d 138 (1991); Cowan v. State, 579 So.2d 13 (Ala.Cr.App.1990); Bedford v. State, 548 So.2d 1097 (Ala.Cr.App.1989). Because in this case the prosecutor equally applied the reason of being unemployed to both white and black veniremembers, we find such explanation to be race-neutral. A veniremember's demeanor may also form the basis for a valid race-neutral challenge. United States v. Lance, 853 F.2d 1177 (5th Cir.1988); United States v. Forbes, 816 F.2d 1006 (5th Cir.1987); McGahee v. State, 554 So.2d 454 (Ala.Cr.App.), aff'd, 554 So.2d 473 (Ala.1989). The fact that a veniremember is a minister or a minister's wife may be a valid race-neutral reason for striking that veniremember. In the instant case, where the appellant faces the death penalty, the fact that the veniremember is a minister or minister's wife is a legitimate reason to question that prospective juror's willingness to impose the death penalty. Cf. Currin v. State, 535 So.2d 221 (Ala.Cr.App.), cert. denied, 535 So.2d 225 (Ala.1988). However, we recognize that in some cases this reason may be suspect. Ex parte Bird, 594 So.2d 676 (Ala.1991); Jackson v. State, 557 So.2d 855 (Ala.Cr.App.1990).
Having determined that the prosecutor's explanations for his strikes were on their face race-neutral, we now consider other relevant factors to determine whether those explanations are valid or are merely pretexts for discrimination. Batson, supra. In Ex parte Branch, 526 So.2d 609 (Ala.1987), our Supreme Court outlined other relevant factors, including the following: 1 The prosecutor's pattern of strikes against black members of this particular venire, the past conduct of this prosecutor in using peremptory challenges to strike black veniremembers, the type and manner of questions asked of those jurors who were struck, and any disparate treatment by the prosecution between white and black veniremembers.
In considering these factors, we find that the Mobile County district attorney's office has been involved in at least two cases which this court has reversed for Batson violations. 2 This fact alone, however, does not prove that the prosecutor's strikes were employed in a racially discriminatory manner. Mitchell v. State, 579 So.2d 45 (Ala.Cr.App.1991).
Few, if any, follow-up questions were asked of the venire, including those members who were peremptorily challenged by the state. However, follow-up questioning is not required in every case where a Batson challenge has been presented in order for the state to successfully meet its burden. United States v. Grandison, 885 F.2d 143 (4th Cir.1989), cert. denied, 495 U.S. 934, 110 S.Ct. 2178, 109 L.Ed.2d 507 (1989).
Finally, we must determine whether there was disparate treatment of white and black veniremembers. The record does reflect that the state used only 3 of its 12 strikes against black veniremembers and that 2 blacks were seated on the jury. Also, while the prosecutor was explaining his peremptory challenges, he noted that the challenges to jurors number 150 (unemployed) and 121 (minister's wife) were the same reasons given for striking white prospective jurors.
"It is within the sound discretion of the trial court to determine if the State's peremptory challenges of black jurors are motivated by intentional racial discrimination." Ex parte Lynn, 543 So.2d 709, 712 (Ala.1988), cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989). This court can only reverse the trial court's finding of no discrimination if that determination is clearly erroneous. Ex parte Branch, 526 So.2d 609 (Ala.1987). In the present case, the trial court determined that the State's reasons for its peremptory strikes were race-neutral. After considering the factors set forth above, we find that the ruling of the trial court was not "clearly erroneous."
The appellant also alleges that the trial court erred in denying him youthful offender status pursuant to § 15-19-1, Code of Alabama 1975. Section 15-19-1 provides, in pertinent part:
(Emphasis added.)
This section does not require a full, formal hearing. Clemmons v. State, 294...
To continue reading
Request your trial
-
Dobyne v. State
...publicity or actual prejudice is through voir dire examination of potential jurors.' " Hunt, 642 So.2d at 1044, quoting Hart v. State, 612 So.2d 520, 527 (Ala.Cr.App.), aff'd, 612 So.2d 536 (Ala.1992), cert. denied, 508 U.S. 953, 113 S.Ct. 2450, 124 L.Ed.2d 666 " 'The constitutional standar......
-
Woolf v. State
...there was no error, much less plain error, in the trial court's instruction.'), aff'd, 887 So.2d 998 (Ala.2004). See also Hart v. State, 612 So.2d 520, 528–29 (Ala.Crim.App.), aff'd, 612 So.2d 536 (Ala.1992) ; and DeRamus v. State, 565 So.2d 1167, 1170 (Ala.Crim.App.1990)." Morton v. State,......
-
Hunt v. State
...establish the existence of adverse publicity or actual prejudice is through voir dire examination of potential jurors." Hart v. State, 612 So.2d 520, 527 (Ala.Cr.App.), affirmed, 612 So.2d 536 (Ala.1992), cert. denied, 508 U.S. 953, 113 S.Ct. 2450, 124 L.Ed.2d 666 Here the total venire was ......
-
Blackmon v. State
...creating a presumption which relieved the State of its burden of proof on the element of intent.' 565 So.2d at 1170." Hart v. State, 612 So.2d 520, 529 (Ala. Crim.App.1992). See also McNabb v. State, 887 So.2d 929, 978-79 (Ala.Crim. We have reviewed the instruction in this case; the instruc......