Jones v. State

• Decision Date: 30 September 1992
• Parties: Oliver JONES, Jr. v. STATE of Alabama. CR 91-531.
• Court: Alabama Court of Criminal Appeals

Page 466

611 So.2d 466

Oliver JONES, Jr. v. STATE of Alabama.

CR 91-531.

Court of Criminal Appeals of Alabama.

Sept. 30, 1992.

Rehearing Denied Nov. 13, 1992.

Certiorari Denied Jan. 29, 1993

Alabama Supreme Court 1920301.

Thomas D. Motley, Dothan, for appellant.

James H. Evans, Atty. Gen., and Jean Brown, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, Oliver Jones, Jr., was convicted of five felony offenses: three instances of bribery, for which he was sentenced to ten years' imprisonment in each case; trafficking in cocaine, for which he was fined $50,000 and was sentenced to life imprisonment; and the unlawful distribution of cocaine, for which he was sentenced to 15 years' imprisonment. This is a direct appeal from those convictions.

I.

The appellant, who is black, argues that the prosecutor was guilty of racial discrimination in the use of his peremptory strikes in selecting the jury in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Fifteen of the 42 members on the jury venire were black. The State used six of its 15 peremptory strikes against blacks. The record does not show how many blacks, if any, actually sat on the jury. Except for those instances where defense counsel objected, the voir dire of the venire is not contained in the record. In this case, we cannot conclude that "the sheer weight of statistics ... raises a strong inference of racial discrimination requiring clear and cogent explanations by the State in rebuttal." Ex parte Yelder, 603 So.2d 981 (Ala.1992). See also Harrell v. State, 571 So.2d 1270 (Ala.1990).

Without making any finding that the appellant had established a prima facie case of racial discrimination, the trial court, because "[t]here were strikes of blacks" (R. 18), required the prosecutor to state his reasons for striking the six black veniremembers. ¹ In response, the prosecutor gave the following reasons:

1. No. 4--"[T]he sheriff's office had problems with drug charges against him." R. 18. This involved "problems" with drugs and did not involve convictions. R. 22.

2. No. 5--"[S]he has a brother-in-law that came out of the voir dire that was convicted of marijuana." R. 18.

3. No. 11--"[T]he sheriff's office had trouble with misdemeanor convictions in her family." R. 19.

4. No. 21--"[H]er father has been charged with misdemeanor offenses in court here, the sheriff's office advises me." R. 19.

5. No. 33--"[O]n the sheriff's office he has many misdemeanor cases in court." R. 19.

6. No. 41--"[S]he has connections with the defendant, says she went to church with him and had known him all his life." R. 19-20.

The prosecutor obtained his information on the veniremembers from the sheriff's department. The prosecutor explained that "[w]e submit a list to the sheriff's department, and ask them if they know these individuals in the community where they live, and would they provide us information." R. 23.

In regard to veniremember No. 4, defense counsel complained because the prosecution failed to demonstrate that this "Carter" was the same Carter that had prior convictions involving drugs. The prosecutor responded that his information was that this veniremember had "drug problems" and not "convictions" so that the veniremember's failure to respond on voir dire when the venire was questioned about convictions was not significant.

With regard to veniremember No. 5, defense counsel stated that during voir dire this veniremember stated that the fact that her brother-in-law was on probation for a drug charge "wouldn't have anything to do with this case, that it wouldn't enter into it in any way." R. 24. In connection with No. 11, defense counsel objected because there was no showing of the degree of family relationship involved. R. 24. The appellant does not challenge the prosecutor's strike of veniremember No. 41.

The trial court denied the Batson objection, finding that the reasons given by the prosecutor were "race-neutral reasons." R. 26. "Where, as in this case, 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 and the trial court's ultimate decision on the Batson motion without any determination of whether the defendant met his burden of proving a prima facie case of discrimination." McLeod v. State, 581 So.2d 1144, 1154-55 (Ala.Cr.App.1990).

Under the circumstances presented here, the prosecutor's strike of veniremember no. 4 on the ground that the sheriff's department had had "drug problems" with that person was racially neutral. In Walker v. State, 611 So.2d 1133 (Ala.Cr.App.1992), this court made the following observations:

"The most troubling reasons for the state's strikes are that a veniremember's relative had a recorded criminal history (such as arrests, prosecutions, or convictions) and that he or she did not respond when asked on voir dire whether a relative had been prosecuted for a felony. While these reasons are, under some circumstances, valid race-neutral reasons for a strike, see, e.g., Powell v. State, [Ms. 91-143, May 29, 1992] So.2d (Ala.Cr.App.1992); Lynn v. State, 543 So.2d 704 (Ala.Cr.App.1987), aff'd, 543 So.2d 709 (Ala.1988), cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989); under other circumstances, they may be a sham or pretext for discrimination, see Ex parte Bird, 594 So.2d 676, 683 (Ala.1991). In Bird, the Alabama Supreme Court held that 'the failure of the State to engage in any meaningful voir dire on a subject of alleged concern is evidence that the explanation is a sham and a pretext for discrimination' and that 'if the prosecut[or] thinks that a veniremember may be related to a former defendant, [he] must ask the veniremember.' Id. (Citations omitted; emphasis added). The Bird court also noted that 'a simple question directed to the veniremember could have dispelled any doubt about a possible relationship.' Id. (Emphasis added). A 'prosecutor's self-imposed ignorance [should not] preclude a Batson claim.' Id. (quoting, Note, Batson v. Kentucky and the Prosecutorial Peremptory Challenge: Arbitrary and Capricious Equal Protection, 74 Va.L.Rev. 811, 827 (1988)). Compare Smith v. State, 590 So.2d 388, 390 (Ala.Cr.App.1991) (wherein the court, in holding that the defendant may not cross-examine jurors or go behind the prosecutor's information to determine if such information was true, stated that a 'prosecutor may strike from mistake, as long as the assumptions involved are based on an honest belief and are racially neutral').

"Based on this rationale, even assuming that the reasons given by prosecutor for his strikes of venirepersons nos. 117, 126, 34, 36, 35, and 98 based on their alleged relationship to alleged relatives with alleged recorded criminal history or on their failure to answer the related question on voir dire are true, we cannot conclude that those reasons are race neutral or facially valid. None of these veniremembers responded affirmatively when asked if any of their family members had been prosecuted for committing a felony (nor did any white veniremembers. The prosecutor never sought to confirm or refute his assumptions with further questioning. Thus, we conclude that the voir dire examination is void of meaningful questions directed to the black veniremembers in regard to the particular reasons given for striking them.

"A prosecutor cannot simply presume, without further questioning to 'dispel any doubt,' that a veniremember, who is under oath, did not answer a question truthfully merely because the prosecutor has hearsay evidence to the contrary. [emphasis added] See Bird. See also Harrell v. State, 571 So.2d 1270, 1272 (Ala.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991) (wherein the court noted that '[t]he record fails to show that any of the five blacks responded to the prosecutor's questions in such a way as to give insight into why they were stricken'); Guthrie v. State, 598 So.2d 1013 (Ala.Cr.App.1991), cert. denied, 598 So.2d 1020 (Ala.1992) (trial court's ruling reversed for a total lack of voir dire questioning to support proffered reasons, some of which were based on alleged relationships with persons charged or convicted of crimes); Jackson v. State, 557 So.2d 855, 856 (Ala.Cr.App.1990) (trial court's ruling reversed where prosecutor failed to ask questions on voir dire 'relating to the explanation he gave for his strikes of any black veniremember'); Avery v. State, 545 So.2d 123, 127 (Ala.Cr.App.1988) (in addressing the reason that there had been other defendants in prior cases with the same last name, the court observed that the 'prosecutor could have resolved her suspicions by asking a few simple questions on voir dire,' and that the [Ex parte] Branch court found that 'intuitive judgment or suspicion by the prosecutor is insufficient to rebut the presumption of discrimination,' 526 So.2d at 623); Floyd v. State, 539 So.2d 357, 362 (Ala.Cr.App.1987) (mere suspicion of relationship between venireperson and previously prosecuted defendant with same surname was held insufficient; prosecutor could have easily ascertained what relationship, if any, existed by asking a simple question on voir dire); Acres v. State, 548 So.2d at 473 [Ala.Cr.App.1987] (striking of veniremember on belief that prosecutor's records showed her to have a conviction not upheld where a review of the records did not support this conclusion; a question on voir dire could have clarified this discrepancy).

"Here, the trial court had 'nothing on which to make the required "sincere and reasonable effort to evaluate the evidence and explanations based on the circumstances as [it knew] them," ' Bird, 594 So.2d at 683 (quoting Branch, 526 So.2d at 624), except the prosecutor's unsupported assertion that each veniremember struck was related to someone...