Johnson v. State

• Decision Date: 08 July 1994
• Docket Number: CR-92-1181
• Citation: 648 So.2d 629
• Parties: Mark Len JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 629

648 So.2d 629

Mark Len JOHNSON v. STATE.

CR-92-1181.

Court of Criminal Appeals of Alabama.

July 8, 1994.

Rehearing Denied Sept. 9, 1994.

Ralph Liverman, Eutaw, and Hubbard Harvey, Sr., Demopolis, for appellant.

James H. Evans, Atty. Gen., and Steve Willoughby, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of capital murder for the offense of murder committed during a robbery in the first degree. See § 13A-5-40(a)(2), Code of Alabama 1975. Following a sentencing hearing, the jury returned an advisory verdict of life imprisonment without parole. Thereafter, following a separate sentencing hearing in front of the trial court, the appellant was sentenced to life in the penitentiary without the possibility of parole.

I

The appellant argues that the trial court erred in denying his objections to the prosecutor's strikes of black veniremembers, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). On appeal, the appellant specifically argues that the prosecutor's reason for striking veniremember number 1 was not race-neutral and that the prosecutor's reason for striking four of the potential jurors, i.e., their age, was not race-neutral.

The record in this case indicates that the appellant is a young black male and that the victim was an 82-year-old white female. The prosecutor used all of his 17 strikes to remove black veniremembers, while the defense used 1 of his 17 strikes to remove a black veniremember. The jury consisted of 10 blacks and 2 whites. The trial court stated that it believed the final jury was fair, in that the percentage of blacks on the jury panel was greater than the percentage of blacks residing in the community. However, the trial court stated that it would require the prosecutor to give reasons for his strikes in order to present a complete record. Thus, we must review those reasons. Jackson v. State, 594 So.2d 1289 (Ala.Cr.App.1991).

Although the appellant argues that four of the veniremembers were improperly struck because of their age, the record reveals that the prosecutor gave additional reasons for the strike of each of these veniremembers.

Specifically, as to the first of these potential jurors, the prosecutor stated that she had a reputation for failing to pay bills. The prosecutor stated that he had either sued the potential juror on that basis or had written a collection letter to her. He added that she was young, which he said he thought might cause her to sympathize with the appellant. See Siler v. State, 629 So.2d 33 (Ala.Cr.App.1993) (wherein veniremember was properly struck pursuant to prosecutor's belief that he had been prosecuted for passing bad checks); Childers v. State, 607 So.2d 350 (Ala.Cr.App.1992) (wherein a veniremember was properly struck where prosecutor stated that he was currently in the process of prosecuting the veniremember in a bad check case); Bryant v. State, 516 So.2d 938 (Ala.Cr.App.1987) (wherein potential juror was properly struck by prosecutor because the challenged juror had written bad checks).

The prosecutor stated that another potential juror who was struck on the basis of age was also struck because he was currently being investigated by the district attorney's office in relation to a sexual abuse case. Also, the prosecutor indicated that he had previously represented a party who had been sued by this potential juror's mother and that a verdict had been in favor of his client in that case. " 'A veniremember's involvement in or connection with criminal activity may serve as a race-neutral reason for the strike of that veniremember.' Naismith v. State, 615 So.2d 1323, 1325 (Ala.Cr.App.1993)." Reese v. City of Dothan, 642 So.2d 511 (Ala.Cr.App.1993). Furthermore, the fact that a prosecutor had represented a party adverse to the interest of a veniremember's relative has been held to be a race-neutral reason for striking the veniremember. See Green v. State, 571 So.2d 356, 357 (Ala.Cr.App.1990).

As to another female potential juror who was struck because she was young, the prosecutor indicated that the potential juror did not answer a particular question about law enforcement contained on a form that the potential jurors were asked to complete. The prosecutor stated that she answered "yes and no" to another question and that he had been told "by Johnny Hatter through Edd Billingsley [that] she engaged in an unlawful activity, specifically prostitution, in the recent past." Both Johnny Hatter and Edd Billingsley were witnesses for the State. Involvement by a potential juror in criminal activity has been held to be a race-neutral reason for striking that potential juror. Moreover, a veniremember's evasive or ambiguous answers to questions has been held to be a race-neutral reason for the strike of that veniremember. Mitchell v. State, 579 So.2d 45, 49 (Ala.Cr.App.1991), cert. denied, 596 So.2d 954 (Ala.1992).

The last veniremember struck on the basis of age was also struck because she gave no answer to question number 31 on the juror form, concerning her attitude toward law enforcement, and because the prosecutor stated that "there were other blacks I wanted to keep; therefore, there were some I had to strike." Without examining the validity of the latter of these reasons, we conclude that the evasiveness of the veniremember's response to the question concerning her attitude toward law enforcement served as a race-neutral reason for striking her. Mitchell v. State, supra. As long as one reason given by the prosecutor for the strike of a potential juror is sufficiently race-neutral, a determination concerning any other reason given need not be made. Smith v. State, 620 So.2d 732, 733 (Ala.Cr.App.1992). See also Davis v. State, 555 So.2d 309 (Ala.Cr.App.1989).

The appellant takes particular exception to the prosecutor's strike of a potential juror on information that the potential juror was prejudiced against whites. The record indicates that the prosecutor gave the following reason for the strike of this potential juror:

"I was advised by Chris Vaughan, the police chief of Cuba, and by Chief Cleveland Brown, the police chief of York, [that] they did not believe he would convict a black for killing a white. They felt he was prejudiced and might be okay on a drug case. They did not think he would be suitable to be on this type of case because of his prejudice. And they did not feel he would under any circumstances convict a black. And Chief Cleveland Brown, I might add, is the black police chief of York. And this was his statement to Mr. Billingsley, who related it to me. Under those circumstances I felt it would be foolish to leave him on there."

In a recent decision, the United States Supreme Court stated:

"Parties still may remove jurors who they feel might be less acceptable than others on the panel; [race and] gender simply may not serve as a proxy for bias. Parties may also exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis' review. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-442[, 105 S.Ct. 3249, 3253-55, 87 L.Ed.2d 313] (1985); Clarke v. Jeter, 486 U.S. 456, 461[, 108 S.Ct. 1910, 1914, 100 L.Ed.2d 465] (1988). Even strikes based on characteristics that are disproportionally associated with one gender [or race] could be appropriate absent a showing of pretext....

"If conducted properly, voir dire can inform litigants about potential jurors making reliance upon stereotypical and pejorative notions about the particular gender or race both unnecessary and unwise. Voir dire provides a means of discovering actual or implied basis and a firmer basis upon which the parties may exercise their peremptory challenges intelligently....

"... Then when an explanation is required, it need not rise to the level of a 'for cause' challenge; rather, it merely must be based on a juror characteristic other than gender [or race], and the proffered explanation may not be pretextual."

J.E.B. v. Alabama, 511 U.S. 127, ----, 114 S.Ct. 1419, 1429-30, 128 L.Ed.2d 89 (1994).

Although the idea that a particular race is prejudiced against another race may be the result of stereotyping, in the present case there was no showing of pretext, in that this reason was based on specific information from specific individuals. Moreover, one of the individuals who accused the potential juror of bias was of the same race as the potential juror, cf. Ex parte Bui, 627 So.2d 855 (Ala.1992) (Adams, J., concurring specially), and this may indicate the lack of racial motivation.

The record reveals that, after the prosecutor presented all of his reasons for his strikes, the trial court denied the appellant's Batson motion, stating:

"Once again, the panel as I understand it is predominately black, which is 10 to 2 and more than the community makeup of black and white in the community. The reasons given by the State I find to be valid reasons to strike one black over other blacks that would be remaining on the panel, especially in view of the fact the defense struck 16 of 17 whites in the case. I don't find this is a proper Batson case. Therefore, I deny your challenge."

A trial court is in a better position to determine if peremptory challenges of jurors were motivated by intentional discrimination. The court's findings in this regard are to be afforded great deference and its judgment will not be reversed on appeal absent clear error. Ex parte Lynn, 543 So.2d 709 (Ala.1988), cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989).

In order for a prosecutor's explanations for his peremptory challenges to be held to be legally proper, they must satisfy the following requirements:

"The explanations for the strikes must be 'clear, specific, and legitimate,' 'relate[d] to the particular case to be tried,' and 'nondiscriminatory.' Ex parte Branch, 526 So.2d 609, 623 (Ala.1987) (emphasis...