Hodges v. State
Decision Date | 24 March 1995 |
Docket Number | CR-93-2146 |
Parties | Alton Jerome HODGES v. STATE. |
Court | Alabama Court of Criminal Appeals |
John A. Lentine, Birmingham, for appellant.
Jeff Sessions, Atty. Gen., and Jean Therkelsen, Deputy Atty. Gen., for appellee.
The appellant, Alton Jerome Hodges, was convicted of the possession of a controlled substance, a violation of § 13A-12-212(a)(1), Code of Alabama 1975. He was sentenced to one year and one day in the penitentiary.
The appellant contends that the trial court improperly overruled his motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, he maintains that the trial court improperly considered only the racial composition of the jury in determining that the defense failed to establish a prima facie case of discrimination, a practice now expressly disapproved by the Alabama Supreme Court in Ex parte Thomas, 659 So.2d 3 (Ala.1994).
The record reflects that after the jury was struck, the following transpired:
(R. 47-49.) The record does not reflect how many persons were on the venire.
It appears from the record that the trial court based its ruling that the appellant failed to establish a prima facie case of discrimination solely on the fact that five black persons remained on the jury. As noted, the Alabama Supreme Court has expressed disfavor with this reasoning in Ex parte Thomas, 659 So.2d 3 (Ala.1994).
Arnold v. State, 668 So.2d 109 (Ala.Cr.App.1995).
In Thomas, the Alabama Supreme Court addressed the question, "[M]ay a defendant make a prima facie case of discrimination by showing that the prosecutor used a large number of his peremptory challenges to engage in a pattern of striking blacks from the venire, even though a higher percentage of blacks ultimately sat on the jury than on the venire?" Thomas, 659 So.2d at 4. The Court held that in certain instances, a prima facie case of discrimination can be made by showing that the prosecution used a large number of its strikes to remove blacks, notwithstanding the fact that a larger percentage of blacks sat on the jury than sat on the venire. In reaching this conclusion, the Court expressly disapproved of the following statement in Harrell v. State, 571 So.2d 1270, 1271-72 (Ala.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736, (1991) ("Harrell II"): " '[w]hen the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created.' "
In Thomas the Court reasoned:
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