Lemley v. State, 6 Div. 25

• Citation: 599 So.2d 64
• Decision Date: 17 January 1992
• Docket Number: 6 Div. 25
• Parties: Mark Norman Pete LEMLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 64

599 So.2d 64

60 USLW 2543

Mark Norman Pete LEMLEY v. STATE.

6 Div. 25.

Court of Criminal Appeals of Alabama.

Jan. 17, 1992.

Rehearing Denied Feb. 28, 1992.

Certiorari Denied June 12, 1992

Alabama Supreme Court 1910989.

Michael G. Trucks, Fairfield, and J.T. Simonetti, Jr., Birmingham, for appellant.

James H. Evans, Atty. Gen., and Stephen N. Dodd and Sandra J. Stewart, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

Mark Norman Pete Lemley, the appellant, was indicted for first degree assault. After a jury trial, he was convicted of the lesser offense of assault in the third degree. He was sentenced to imprisonment for one year, was fined $499, and was ordered to make restitution to the victim in the amount of $4,091.35.

It is undisputed that the appellant, a 69-year-old white male, shot Percy Smith, a 14-year-old black youth. The victim was one of 6 to 10 black youths who were hunting squirrels with B-B guns and pellet guns in the vicinity of the appellant's home on October 13, 1987. The group saw a squirrel run up a tree in the appellant's yard. When the animal ran into a metal box in the tree, the youths tried to flush him out of the box by throwing rocks and bottles. Some of those missiles landed on the tin roof of the appellant's house and awakened the appellant, who lived alone and was inside taking a nap. When the appellant, who was nearsighted, suffered from glaucoma, and was not wearing his glasses, looked outside to see what was going on, he observed a group of black males with guns.

At trial, the appellant testified that one of the group was pointing a gun at him, and four or five other members of the group had guns in their hands, some of which were aimed at his house. The appellant testified that he believed his home was "under siege," and that he "fear[ed] for [his] life and [his] property." (R. 172.) The appellant retrieved a pistol from his bedroom, opened his back door, and fired the pistol into the crowd of young men. The youths fled and, about half a block away, Percy Smith realized that he had been shot. A .357 Magnum bullet had pierced the left side of his chest, penetrated his liver, and exited through his back. The attending physician testified that Smith's injuries necessitated surgery, required a nine-day hospital stay, and were life-threatening.

I

This case presents two issues of first impression in Alabama: (1) whether the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), apply to defense strikes of black veniremembers; and (2) whether, in the absence of any objection by the State regarding a defendant's use of peremptory challenges to exclude blacks, the trial court, on its own motion, may determine that a prima facie case of discrimination exists, require the defense to explain its strikes, and restore any veniremembers struck for racially discriminatory reasons to the jury. We answer both questions in the affirmative.

The record reveals that prior to trial there was some press coverage suggesting that the assault may have been racially motivated. The jury venire consisted of 35 persons, of whom 10 (20.5%) were black. Defense counsel used seven of his ten peremptory challenges to remove blacks from the venire. The State used all of its peremptory challenges to remove whites.

After both sides had exercised their peremptory strikes, the trial judge asked defense counsel to give the reasons for his strikes of black veniremembers. Acknowledging that he "underst[oo]d what Batson says" (R. 6), that he "realize[d] Batson deals strictly with the prosecutor" (R. 8), and that he was "going beyond Batson" (R. 12), the trial judge stated:

"I don't intend to preside over any trial where I have reason to believe, or know, that race enters the picture, whether it be from the defense or from the prosecution. Fair has no side.... Citizens have the right to come up here and be on a jury panel without having to be eliminated and be discriminated against because of race, whether white or black, whether it's the prosecutor or the defense doing it." (R. 6, 7.)

The trial judge elicited from defense counsel the reasons for his strikes of black veniremembers:

"THE COURT: Mr. Hunter, number 110, tell me about that.

"[DEFENSE COUNSEL]: He doesn't own any weapons. He's young and a comparable age to the alleged victims.

"THE COURT: How old?

"[DEFENSE COUNSEL]: Between 14 and 19. He's probably in his twenties. That's why I struck him.

"THE COURT: Warren, number 206?

"[DEFENSE COUNSEL]: Single, struck me as the motherly type who might feel sympathy for young boys who have been shot.

"THE COURT: What about Woods?

"[DEFENSE COUNSEL]: He did not own any guns.

"THE COURT: 133, Mathison?

"[DEFENSE COUNSEL]: She's a librarian. Works with students of the same age of the victim.

"THE COURT; I didn't hear you ask one prospective juror if they had children.

"[DEFENSE COUNSEL]: She's a librarian.

"THE COURT: If that was such a crucial question, then it seems to me that you would have wanted to know if they were a mother and if they had children that age. I'm not buying that.

"[DEFENSE COUNSEL]: I can explain--

"THE COURT; Explain Sledge.

"[DEFENSE COUNSEL]: Strictly a hunch. The way she answered questions, even when she was asked about--

"THE COURT: Dismukes?

"[DEFENSE COUNSEL]: Security guard. Seemed he carried a gun only through his work, but found it somewhat distasteful.

"THE COURT: I believe your question was, do you have a gun for any reason other than protection--

"[DEFENSE COUNSEL]: His answer was, the reason I carry it.

"THE COURT: It did not mean it was distasteful. How about Clark?

"[DEFENSE COUNSEL]: Young. That's it."

"....

"THE COURT: ... Ms. Sledge was deleted because she allegedly had an attitude. That's something I can't measure.

"[DEFENSE COUNSEL]: It was a gut level feeling." (R. 4-8.)

Although the record is not entirely clear, it appears that the trial court ordered two of the black veniremembers who had been removed by the defense (Ms. Sledge and Mr. Dismukes) to be restored to the jury.

Batson held that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Batson, 476 U.S. at 89, 106 S.Ct. at 1719. In the subsequent decisions of Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), and Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), the Supreme Court expanded the scope of Batson by holding that a white defendant has standing to object to the prosecutor's discriminatory strikes of black veniremembers and that Batson is applicable in civil cases.

In Powers, the 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." 499 U.S. at ----, 111 S.Ct. at 1366. The Court explained that the Equal Protection Clause safeguards not only the rights of the criminally accused, but also the right of individual jurors not to be excluded from jury service on account of race, and the right of society as a whole to rely on the integrity of the judicial system.

"In Batson, we spoke of the harm caused when a defendant is tried by a tribunal from which members of his own race have been excluded. But we did not limit our discussion in Batson to that one aspect of the harm caused by the violation. Batson 'was designed "to serve multiple ends," ' only one of which was to protect individual defendants from discrimination in the selection of jurors. Allen v. Hardy, 478 U.S. 255, 259, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986) (per curiam) (quoting Brown v. Louisiana, 447 U.S. 323, 329, 100 S.Ct. 2214, 2220, 65 L.Ed.2d 159 (1980)). Batson recognized that a prosecutor's discriminatory use of peremptory challenges harms the excluded jurors and the community at large. 476 U.S., at 87, 106 S.Ct., at 1718."

Powers v. Ohio, 499 U.S. at ----, 111 S.Ct. at 1368. See also Ex parte Bird & Warner, 594 So.2d 676 (Ala.1991); Ex parte Bankhead, 585 So.2d 112 (Ala.1991).

In Edmonson, the Court held that the principles of Batson were applicable to private litigants in a civil suit. The Court observed:

"While the[ ] decisions [culminating in Batson] were for the most part directed at discrimination by a prosecutor or other government officials in the context of criminal proceedings, we have not intimated that race discrimination is permissible in civil proceedings. Indeed, discrimination on the basis of race in selecting a jury in a civil proceeding harms the excluded juror no less than discrimination in a criminal trial. In either case, race is the sole reason for denying the excluded venireperson the honor and privilege of participating in our system of justice."

Edmonson v. Leesville Concrete Co., 500 U.S. at ----, 111 S.Ct. at 2082 (citations omitted). Two years earlier, our own Alabama Supreme Court had reached the same result as the Edmonson Court in Thomas v. Diversified Contractors, Inc., 551 So.2d 343 (Ala.1989). There, Justice Adams, concurring specially, noted that

"[i]f we were to limit Batson to criminal cases, we would betray Batson 's fundamental principle: the state's use, toleration, and approval of peremptory challenges based on race violates the equal protection clause."

Thomas v. Diversified Contractors, Inc., 551 So.2d at 348 (Adams, J., concurring specially) (quoting Edmonson v. Leesville Concrete Co., 860 F.2d 1308, 1314 (5th Cir.1988), reversed, 895 F.2d 218 (5th Cir.1990) (en banc), reversed, 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991)).

Following the same reasoning, we conclude that if we were to limit our scrutiny of allegations of racial discrimination in the selection of the jury in a criminal case to only the prosecutor, we would be betraying not only...