Ingram v. State

• Decision Date: 09 February 1996
• Docket Number: No. CR-94-1032.,CR-94-1032.
• Citation: 729 So.2d 883
• Parties: Gerald Homer INGRAM, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

729 So.2d 883

Gerald Homer INGRAM, Jr. v. STATE.

No. CR-94-1032.

Court of Criminal Appeals of Alabama.

February 9, 1996.

Opinion on Return to Remand May 8, 1998.

Rehearing Denied August 14, 1998.

Certiorari Denied February 19, 1999.

William H. Broome, Anniston, for appellant.

Jeff Sessions and Bill Pryor, attys. gen., and Robin Blevins, asst. atty. gen., for appellee.

Alabama Supreme Court 1972090.

LONG, Presiding Judge.

The appellant, Gerald Homer Ingram, Jr., was convicted of murder made capital for an intentional killing during the course of a robbery, see § 13A-5-40(a)(2), Code of Alabama 1975. The appellant was sentenced to life imprisonment without the possibility of parole.

The appellant contends that the trial court erred in denying his motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, the appellant maintains that in determining that the defense failed to establish a prima facie case of discrimination, the trial court relied solely on a comparison of the percentage of black persons on the jury with the percentage of black persons on the venire from which the jury was struck, 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:

"THE COURT: Okay, let the record show that Mrs. Turner has informed me that the striking process is completed and that the jury has been selected. Mr. Broome states he has a motion he wishes to be considered before the jury is seated. We are outside the presence of the jury panel. Okay, Mr. Broome?

"MR. BROOME [defense counsel]: Judge, we would make a motion that the jury panel that was selected is not, in fact, our panel. Under Batson and the line of cases that follows that the state has shown a systematic pattern of using the state's peremptory challenges to exclude otherwise qualified and unbiased persons from the jury solely because they were black. And we believe that the Supreme Court in a line of cases has said that that practice significantly gives the—keeps a black from having a significant opportunity to participate in civil life in the jury system as we know it in the United States. The venire was composed of 63 men and women of which, if my math's correct and we got them all down, 18 were black.

"THE COURT: Okay. Go through and point out the ones to me who are black.

"MR. BROOME: Have you got that?

"MR. ADAMS [defense counsel]: Judge, would it be easier if he calls out the way we kept up with it as the number of black strikes?

"THE COURT: Well, if you want to lay out a motion you're going to have to inform me which ones of the 63 were black and then—

"MR. BROOME: I can do that, Judge. Number eight was black. Thirty-nine—

"THE COURT: Just a minute.

"MR. BROOME: Do you want them by name or number?

"THE COURT: I would like them in order or else slow down one or the other.

"MR. BROOME: Number eight, F.B.

"THE COURT: Okay.

"MR. BROOME: Number 39, J.M.

"THE COURT: Okay.

"MR. BROOME: Number 58, R.T. Number 25, B.H. Number 35, G.M. Number 38, F.M. Number 53, J.S. Number 59, R.W. Number 44, E.P. Number 24, L.H. Number 11, A.B. Number 28, W.I. Number 62, J.W.

"Those were the ones, Your Honor, that the state struck, which would be a total of 13. There would be five that were not struck. Number three, L.B. Number six, C.B. Number 26, E.H. Number 41, J.O. Number 47, C.R. That would be 18, I believe, Your Honor. There was 13 struck and 5 on the jury panel they struck.

"It's my understanding that this county, and please correct me if I'm wrong, is approximately between 25 and 30 percent black. If that's wrong—

"MR. LEMLEY [assistant prosecutor]: It is my understanding it is between 24 and 27 percent black.

"MR. BROOME: I would concede to that, Your Honor, that approximately a little less than 30 percent of the venire were, in fact, black, 18 out of the 63, and that the state struck over 70 percent of the blacks that were on the jury panel. And it would be our contention it's for no other reason other than because of their race.

"Several of the blacks that were struck never answered any question whatsoever other than during their initial introduction when they stated their name and address and where they worked and where their spouse worked. And we would like for them to justify the strikes that they made of those 13 strikes.

"THE COURT: Mr. Field [prosecutor]? Mr. Hubbard [assistant prosecutor]? Either one of you?

"MR. FIELD: Yes, sir. I'm sure Your Honor is aware of the fact that once we're required to justify the strikes the appellate courts have indicated that they will not even consider whether or not Batson applied. And we feel very strongly about getting a favorable ruling as far as Batson is concerned before we're required to do anything else. And the reason for that is this: That there is a higher percentage of blacks left on this jury than was on the venire.

"Now, he can count up to 18. He ought to be able to count up to how many blacks are on that jury and how many whites are on that jury. And if my calculations are correct the percentage that's left on the jury is higher than the percentage that's on the total panel. So I don't see where he's got a Batson challenge.

"MR. HUBBARD: Also, Your Honor, the percentage of blacks that are on the jury is a higher percentage of blacks if you consider that there is a quarter—population quarter of a black population in Tuscaloosa County [sic]. There is a higher percentage on that jury than there are blacks in Tuscaloosa County as compared to the entire population.

"The defendant has failed, Your Honor, to make a prima facie showing that there was discrimination on the part of the state. Now, absent that, a showing on the part of the defendant, the state is not required to justify any of its strikes. And once the state begins to justify those strikes then, if Your Honor requires us to do that, that completely eliminates the appellate court from even looking at the question whether or not there was a prima facie case to begin with. So we strongly urge the court to find, as there is Judge, no discrimination has been shown on the part of the state. No prima facie case has been shown on the part of the state.

"We fully admit that we struck, I suppose, 12 or 13 blacks. We also struck some 12 or 13 whites. There are no black alternates on this particular jury so that there will be 5 blacks unquestionably that will sit on this panel and decide this boy's guilt or innocence, and that's going to be 5 out of 12. And the percentage, Your Honor, based on the knowledge that we have in Tuscaloosa County is extremely high as far as the ratio between the blacks and whites on this particular jury.

"It's almost as telling, Judge, to me that the defense struck absolutely no blacks on this jury. And I think it's important for the appellate court to note that the reason that there were no blacks struck on this particular jury in the state's opinion is simply so that they can bring forth this motion and indicate that the state had, in fact, practiced discrimination. And that's become the practice and it's an unfortunate practice in this particular situation. Few appellate courts have attempted to show that they want discrimination stopped, which it should be stopped, but it should not be used as a vehicle. Batson should not be used as a vehicle to allow this defendant or any other defendant an opportunity to slide out of a criminal case via the strategy of his defense team by saying that we won't strike any blacks, we know that there are some blacks that the state is going to have to strike and therefore we'll be able to raise this motion; we'll be able to convince the court that there was prima facie discrimination and therefore will require the state to have to give reasons; if we require them to have to give reasons for that then the appellate court cannot [sic] then look back and say, `Well, we're not going to decide whether or not there was prima facie discrimination or not because the trial judge required the state to give reasons and we're going to overlook whether or not there was prima facie discrimination.' That's the state of the law as I understand it at the present time.

"THE COURT: That's correct. All right. For the purposes of the record, of course, the record's clear. But to make sure it's abundantly clear the defendant in this case is white. He is not a member or any minority group, let alone a member of any minority group that is being questioned at this point. So we're not pursuing a Batson motion per se. If any right's being asserted Mr. Broome's asserting the 14th Amendment right of a juror. I have not run the percentages but from what you say you concede that Tuscaloosa County would be 25 percent black, roughly?

"MR. BROOME: Yes, sir.

"THE COURT: That 18 out of 63 jurors available for jury service are black. That's the panel from which we struck after, of course, two challenges for cause. That we have a jury composed of 12 principal jurors [and] two alternates that is comprised of five blacks, the remainder white or at least nonblack, I assume white. We had some—at least one other ethnic minority group available for jury service.

"MR. HUBBARD: He was struck, Judge.

"THE COURT: Okay. That of the 14 jurors five of the 12 principal jurors are black. That brings the percentages of black participation on this jury panel, and assuming you look at the principal jury panel almost 50 percent of the jury panel that has been selected with the two alternates, would exceed the general racial makeup of Tuscaloosa County would be about 30—roughly 34, 35 percent I guess and exceeds the racial makeup of the jury panel as a whole or at least does not— would not be any less than that. I don't see where there has been a prima facie showing of racial striking on the part of the state.

"In regard to Mr. Hubbard's remarks about defense tactics, I

...