K.S. v. Carr

Decision Date02 April 1993
Citation618 So.2d 707
PartiesK.S. v. John CARR, et al. John CARR and Lifeline Children Services, Inc. v. K.S. 1910836, 1910856.
CourtAlabama Supreme Court

Thomas W. Bowron II of Jones & Bowron, P.C., Birmingham, for appellant/cross-appellee.

A. Joe Peddy and James L. Stirling, Jr. of Smith, Spires & Peddy, Birmingham, for appellees/cross-appellants.

On Application for Rehearing

INGRAM, Justice.

The opinion released December 11, 1992, is withdrawn, and the following opinion is substituted therefor.

The plaintiff, K.S., appeals (case 1910836) from the trial court's denial of her "Batson" motion. The defendants, John Carr and Lifeline Children Services, Inc., cross-appeal (case 1910856), arguing that the trial court erred in denying their motion for a directed verdict.

This case presents the following issues: 1) whether the trial court erred in finding that Lifeline and Carr's use of their peremptory strikes was not racially motivated and therefore did not violate Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), and Thomas v. Diversified Contractors, Inc., 551 So.2d 343 (Ala.1989); 2) whether, assuming the trial court erred with regard to the Batson issue, this Court should address the challenge to the sufficiency of K.S.'s evidence; and 3) assuming we should address this issue, whether the trial court erred in denying Lifeline and Carr's motion for a directed verdict.

In 1987, K.S., a white, unmarried minor female, discovered that she was pregnant. She eventually entered into an agreement with Lifeline whereby she agreed to place her child with Lifeline for adoption. Lifeline, in turn, agreed that if K.S. placed her child for adoption then Lifeline would pay all of K.S.'s medical expenses related to her pregnancy and the birth of her child.

After the child's birth, Lifeline placed him in a foster home. K.S. later changed her mind and decided that she wanted to keep the child. Three days after notifying Lifeline of her decision, K.S. regained custody of the child. K.S. claims that during the three-day interval Lifeline wrongfully withheld the child from her in an attempt to force her to assume responsibility for the medical bills.

K.S. sued Lifeline and Carr, Lifeline's director, for damages, alleging the torts of Following discovery, the case proceeded to jury selection. The record shows that seven members of the venire were black. Lifeline used five of its six peremptory challenges to remove blacks from the venire. After the clerk called the names of the 12 veniremembers who had not been struck, K.S. moved for a mistrial, arguing that Lifeline and Carr had struck blacks from the venire in a racially discriminatory manner.

outrage and invasion of privacy. Lifeline and Carr initially filed a motion to dismiss, which was denied by the trial court. The trial court then granted their motion for summary judgment on the invasion of privacy count, but denied their motion with regard to the tort of outrage.

Without expressly finding that K.S. had established a prima facie case under Ex Parte Branch, 526 So.2d 609, 625 (Ala.1987), the trial court directed Lifeline and Carr to state their reasons for striking the black veniremembers. After hearing the explanations and the arguments of counsel, the trial judge held that Lifeline and Carr had not violated Batson. Accordingly, he denied K.S.'s motion for a mistrial.

The case proceeded to trial. At the conclusion of K.S.'s case, Lifeline and Carr moved for a directed verdict, and the court overruled the motion. Lifeline and Carr renewed their motion for a directed verdict at the close of all the evidence. The trial court again denied the motion and submitted the case to the jury, which returned a verdict in favor of Lifeline and Carr. No party filed post-trial motions, and the trial court entered a judgment based on the jury verdict.

K.S. appealed, and Lifeline and Carr cross-appealed.

I. The "Batson" Issue

We first note that K.S., a white female, does have standing to challenge the use of peremptory challenges to eliminate blacks from the venire in this civil action. In Thomas v. Diversified Contractors, Inc., 551 So.2d 343 (Ala.1989), we held that the Batson principle applies in civil as well as criminal cases. See also, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Moreover, the United States Supreme Court has held that white litigants, as well as black litigants, have standing to challenge the discriminatory use of peremptory challenges to remove blacks from the jury venire. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).

Lifeline and Carr argue that K.S.'s Batson motion was not timely. We disagree.

In support of their argument, Lifeline and Carr cite McGruder v. State, 560 So.2d 1137 (Ala.Crim.App.1989). In that case, the defendant made a Batson motion after the members of the venire that had been struck had been dismissed from the courtroom. 560 So.2d at 1142. In explaining its approval of the trial court's holding that the defendant's Batson motion was untimely, the Court of Criminal Appeals stated, "It is the release of the unselected members of the venire and the problems and difficulties created thereby which truly govern the timeliness of a Batson motion." Id. at 1143.

After thoroughly reviewing the record, we find no support for Lifeline and Carr's contention that K.S.'s motion was made after the venire had been dismissed. Accordingly, we conclude that the Batson motion was timely.

Lifeline and Carr also assert that K.S. failed to present a clear record containing sufficient evidence of the race of the veniremembers. We disagree and conclude that the record, taken as a whole, sufficiently establishes the race of the veniremembers who were struck as well as the race of those who were not.

The record shows that seven members of the venire were black and that the remaining members were not. In denying K.S.'s motion, the trial judge stated, "[T]here were seven blacks on this [venire]. Five were struck by the defendants." We recognize that the record does not name the two black veniremembers who were not struck. However, Lifeline and Carr discuss in their brief the striking of five black We now turn to the issue of whether Lifeline and Carr provided sufficiently race-neutral explanations for using five of their six peremptory challenges to remove blacks from the venire.

veniremembers. Moreover, they discuss, by name, the two blacks who were not struck.

We note that, initially, the party alleging discriminatory use of peremptory challenges bears the burden of establishing a prima facie case of discrimination. Ex parte Branch, 526 So.2d 609, 622 (Ala.1987). After a prima facie case has been established, there is a presumption that the peremptory challenges were used to discriminate against black jurors. Ex parte Branch, 526 So.2d at 623. The responding party then must articulate a clear, specific, and legitimate reason for the challenge that relates to the particular case to be tried and that is nondiscriminatory. Ex parte Bird, 594 So.2d 676, 679 (Ala.1991), quoting Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Once the responding party has articulated a race-neutral reason or explanation for eliminating the black jurors, the moving party can offer evidence showing that the reason or explanation is merely a sham or pretext. Ex parte Branch, 526 So.2d at 624. When the trial court has followed this procedure, its determination will be overturned only if that determination is clearly erroneous. Ex parte Branch, 526 So.2d at 625.

In reviewing a decision of the Court of Criminal Appeals, we stated:

"[T]he reviewing court's inquiry, whether the [challenged party's] explanations are offered voluntarily or by order of the trial judge, shall not be restricted by the mutable and often overlapping boundaries inherent within a Batson-analysis framework, but, rather, shall focus solely upon the 'propriety of the ultimate finding of discrimination vel non.' "

Huntley v. State, [Ms. 1910530, September 18, 1992] --- So.2d ---- (Ala.1992) (quoting Merrill v. Southern Methodist University, 806 F.2d 600, 605 (5th Cir.1986). Accordingly, we will review the relevant portions of the record in determining whether the trial court's ultimate determination that the reasons given for the strikes were race-neutral was clearly erroneous.

Counsel for Lifeline and Carr stated that they struck black veniremember B.K. because he was single, had no children, and was "not on the work force." The record shows, however, that white veniremembers M.G. and C.F. were also single. Moreover, it appears from the record that white veniremembers M.G., C.F., L.H., and C.M. were also childless. Additionally, white veniremember L.C. stated during voir dire that she was unemployed.

We further note that B.K. was asked only one specific question on voir dire. That is, Lifeline and Carr asked B.K. if he would find for them if the evidence showed that they were not liable. B.K. responded in the affirmative.

Among the factors we consider in determining whether a proffered explanation is a sham or pretext is whether "persons with the same or similar characteristics as the challenged juror were not struck." Branch, 526 So.2d at 624. Even if the fact that B.K. was single, had no children, and was not in the work force could be viewed as a valid basis for excluding him from the jury, the fact that whites who shared some of the same characteristics were not excluded leads us to conclude that the proffered explanation was a sham or pretext.

Lifeline and Carr's counsel stated that they struck black veniremember B.F. because she had no children and was a nurse at Cooper Green Hospital. The record shows, however, that B.F. stated that she had three children. Moreover, while B.F. was in the health care profession, sh...

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