Jackson v. State

• Decision Date: 15 November 1991
• Citation: 594 So.2d 1289
• Parties: Joseph JACKSON v. STATE. CR 90-1004.
• Court: Alabama Court of Criminal Appeals

Page 1289

594 So.2d 1289

Joseph JACKSON v. STATE.

CR 90-1004.

Court of Criminal Appeals of Alabama.

Nov. 15, 1991.

Rehearing Denied Dec. 27, 1991.

Certiorari Denied Feb. 28, 1992

Alabama Supreme Court 1910527.

Anthony D. Riley, Tuscumbia, for appellant.

James H. Evans, Atty. Gen. and Jack W. Willis, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, Joseph Jackson, was charged in a two-count indictment with first degree rape and first degree kidnapping. A jury convicted him on both counts. He was sentenced to life imprisonment on each conviction, with the sentences to run consecutively. He was also ordered to pay $740 in restitution to the victim and $10,000 to the Crime Victims' Compensation Fund.

I

Defense counsel made a timely motion alleging a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He asserted that "[t]here were nine black jurors and the State has excluded six of them, which was right at fifty percent of their strikes for no apparent race-neutral reasons." R. 70. The prosecutor responded that he did not "think stating that alone is sufficient to make out a prima facie case for meaningful discrimination." He also noted that the appellant is white, rather than a member of a minority group. R. 70. Nevertheless, without waiting for the trial judge to rule whether the appellant had established a prima facie case of discrimination, the prosecutor offered explanations for each of his strikes. The prosecutor then stated that there were two black persons sitting on the jury and concluded by asserting that all of his strikes were for race-neutral reasons. R. 70-73.

The trial judge asked if there was "[a]nything else," and defense counsel did not respond to the prosecutor's statement of his reasons for striking the veniremembers. The trial judge then stated: "The Court finds that the defendant is of the Caucasian race and a prima facie showing of discrimination has not been shown. And the district attorney has given race-neutral reasons for the strikes and your motion is denied." R. 73.

The appellant was tried in January 1991. On April 1, 1991, the United States Supreme Court held that "a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race." Powers v. Ohio, 499 U.S. 400, ----, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411 (1991). Powers unquestionably establishes that a white defendant has standing to challenge the prosecutor's use of peremptory strikes to remove blacks from the jury venire. See Ex parte Bird and Warner, 594 So.2d 676, 685-686 (Ala.1991); Ex parte Bankhead, 585 So.2d 112 (Ala.1991). Powers, like Batson, is to be applied retroactively to cases pending on direct appeal. Cf. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986); Ex parte Jackson, 516 So.2d 768, 772 (Ala.1986).

A defendant claiming a Batson violation bears the initial burden of making a prima facie showing that the prosecution has used its peremptory strikes in a racially discriminatory manner. See Batson, 476 U.S. at 96-97, 106 S.Ct. at 1723; Ex parte Branch, 526 So.2d 609, 622 (Ala.1987). To make such a showing, a defendant must establish relevant facts and circumstances that "raise an inference that the prosecutor used [his peremptory strikes] to exclude ... veniremen from the petit jury on account of their race." Batson, 476 U.S. at 96, 106 S.Ct. at 1723. ¹ Until the defendant meets this burden, the prosecution is under no obligation to offer explanations for its peremptory strikes. See Harrell v. State, 555 So.2d 263, 268 (Ala.1989); Robinson v. State, 545 So.2d 828, 832 (Ala.Cr.App.1989). However, once a prima facie case of discrimination is established, the burden shifts to the prosecution, which must justify its removal of black veniremembers by articulating specific, race-neutral explanations that "are related to the particular case to be tried." Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24.

In this case, as noted above, the prosecutor stated his reasons for his strikes prior to the trial court's finding that the appellant had not established a prima facie case of discrimination. We note that one court has stated:

"As a practical matter, [ascertaining whether a defendant has established a prima facie case under Batson ] requires the trial court to consider the State's explanation of the manner in which it employed its challenges prior to making a final determination as to whether a prima facie case exists."

State v. Antwine, 743 S.W.2d 51, 64 (Mo.1987) (en banc), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988) (emphasis added). In that same case, the Missouri Supreme Court went on to direct Missouri trial judges "to consider the prosecutor's explanations as part of the process of determining whether a defendant has established a prima facie case of racially discriminatory use of peremptory challenges." Antwine, 743 S.W.2d at 64. At least one jurisdiction has expressly refused to follow this approach, State v. Goode, 107 N.M. 298, 301, 756 P.2d 578, 581 (N.M.App.), cert. denied, 107 N.M. 308, 756 P.2d 1203 (1988), and two other jurisdictions have implicitly done so. See People v. Granillo, 197 Cal.App.3d 110, 115, 242 Cal.Rptr. 639, 641 (1987) (discussing California's prohibition on racially discriminatory use of peremptory challenges which was formulated prior to Batson ); Green v. State, 572 So.2d 543, 545-46 (Fla.App.1990), review denied, 581 So.2d 164 (Fla.1991). The courts in Goode, Granillo, and Green adhered to the position that the defendant must establish his prima facie case before the prosecution is obligated to justify its peremptory strikes. In fact, Florida's Second District Court of Appeal indicated that even an insufficient reason advanced by the prosecution did not require a reversal by that court because the defendant had failed to establish a prima facie case at trial. Green, 572 So.2d at 546-47.

In Ex parte Bird and Warner, 594 So.2d at 680, the Alabama Supreme Court, discussing the establishment of a prima facie case under Batson, held that "the State's failure to articulate a legitimate reason for one or more strikes may constitute one of the 'facts and ... other relevant circumstances [that will] raise an inference' of discrimination." (Emphasis added.) Although the court cited Antwine to support that proposition, we do not read Ex parte Bird and Warner as a directive to Alabama trial courts to require the prosecutor, in all instances, to state his reasons for his strikes prior to the trial court's making a determination as to whether the defendant has established a prima facie case of discrimination. However, Bird and Warner does mean that where, as here, the prosecutor volunteers his reasons prior to the trial court's determination on the defendant's establishment of a prima facie case, the trial court is to consider those reasons in making that determination. This interpretation necessarily requires this Court to review those reasons in reviewing the trial court's decision on the Batson motion. See Cowan v. State, 579 So.2d 13, 18-19 (Ala.Cr.App.1990), where this Court reviewed the sufficiency of the prosecutor's reasons after commenting that the "trial court found not only that the appellant had failed to present a prima facie case of racial discrimination, but also that the State had given race-neutral reasons for striking each black venire person." Cf. McLeod v. State, 581 So.2d 1144, 1154-55 (Ala.Cr.App.1990) (where the "trial court requires the prosecutor to state his reasons for his peremptory strikes without first requiring the defendant to establish a prima facie case of discrimination, this Court will review the reasons given by the prosecutor"); Thomas v. State, 555 So.2d 320, 322 (Ala.Cr.App.1989) ("since the prosecutor's reasons for striking [black veniremembers] are on the record, we shall review the sufficiency of her explanations"); Currin v. State, 535 So.2d 221, 223 (Ala.Cr.App.), cert. denied, 535 So.2d 225 (Ala.1988) (where the trial court did not make a determination as to whether the defendant had established a prima facie case, but the prosecutor's reasons were of record, this Court reviewed the sufficiency of the reasons).

Reviewing the prosecutor's reasons for his peremptory strikes in the present case, we find two of those reasons to be insufficient.

The prosecutor stated that he struck veniremember Number 33 because

"it was shown through voir dire that she was acquainted with and lived close to an individual named Weeda Tompkins. We are in the process of extraditing him to the State of Alabama, and the extradition has happened within the last few days. And due to the knowledge of this person, she might be prejudiced against the State in a case of this nature, and we struck her for that reason." R. 71.

A veniremember's involvement in criminal activity or his kinship to or close friendship with another who is involved in criminal activity "can ... constitute a sufficiently race-neutral reason for the exercise of a peremptory challenge." Stephens v. State, 580 So.2d 11, 19 (Ala.Cr.App.1990), affirmed, 580 So.2d 26 (Ala.), cert. denied, 502 U.S. 859, 112 S.Ct. 176, 116 L.Ed.2d 138 (1991). However, the voir dire answers of Number 33 do not support the use of this reason in this case.

After Number 33 indicated that she did not know two individuals named by the prosecutor, the following occurred:

"Mr. Alverson [prosecutor]: What about a person known as Weeda Tompkins?

"[Number 33]: Oh, okay, they used to live down the street.

"Mr. Alverson: Down the street from you--on Columbia?

"[Number 33]: Yes.

"Mr. Alverson: When would have been the last time you would have seen him?

"[Number 33]: It's been a long time.

"Mr. Alverson: Would it be safe to say it would have been within the last...