Levert v. State

• Decision Date: 10 February 1987
• Docket Number: 6 Div. 157
• Citation: 512 So.2d 790
• Parties: Tolbert LEVERT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 790

512 So.2d 790

Tolbert LEVERT v. STATE.

6 Div. 157.

Court of Criminal Appeals of Alabama.

Feb. 10, 1987.

On Return to Remand

July 28, 1987.

John C. Rockett and H. Jadd Fawwal, Bessemer, for appellant.

Charles A. Graddick, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Tolbert Levert was charged in two separate indictments with the unlawful breaking and entering of a motor vehicle, to-wit, a 1976 BMW automobile, with intent to commit a felony therein, to-wit, theft of property contrary to § 13A-8-11 (b) Code of Alabama 1975 as amended and, in a second indictment, with obtaining or exerting unauthorized control over several items of the value of $122.98, the property of one Joyce Kay Feltman, with intent to deprive the owner of said properties, contrary to the provisions of § 13A-8-4, Code of Alabama 1975 as amended.

Thereafter, the two causes were consolidated for trial and, following a jury trial held in circuit court, the appellant was found "guilty of unlawfully breaking and entering a vehicle as charged in the indictment" and in the second indictment with "guilty of the theft of property in the second degree as charged in the indictment".

The cause was then continued for sentencing hearing. At the hearing the appellant admitted three prior felonies. The appellant was then sentenced as a habitual felony offender to 18 years' imprisonment in each case with the two sentences to run concurrently. The appellant then gave notice of appeal.

This entire cause arises from an incident which occurred on the afternoon of July 14, 1984, when one Joyce Kay Feltman drove with her children to the Pizitz Store located at the Midfield Plaza in Jefferson County, Alabama to go in and do some shopping. After placing several items which she had purchased for herself and her children in the vehicle, she then walked to a Pizza Parlor to eat. When she returned to the car she found that the vehicle had been broken into and a sweater, a blouse, shirt, her tape box and several tapes had been removed therefrom. She gave the value of these items in open court.

The appellant testified to an alibi defense stating that he had recently been in the Cooper Green Hospital and had had surgery and had just been released. He stated that he could barely raise his arms. He further stated that he could not have crawled into an automobile.

I

At the trial of this cause and on appeal, the appellant contends that the prosecutor's use of certain peremptory challenges to strike blacks from the jury violated his Sixth and Fourteenth Amendment rights. During the course of choosing the jury prior to trial of this cause, the following occurred: (R. 6-8)

"(Jury not present)

"MR. ROCKETT: I just want the record to reflect that there's been an offer of a minimum sentence in this case, dropping one charge, and I have explained that to my client. He has turned that down.

"The second thing, I would move to dismiss the jury before they get sworn in, Judge. I have already told you about that based on Batson versus Kentucky, U.S. Supreme Court decision, April 30th of this year, being violative of his 6th and 14th Amendments, and not having a jury of his peers, a cross section of the community.

"And if I understand correctly, we have to show a couple of things. Number one, that Tolbert is a black, which is a recognizable racial group, and that all of the prosecutor's challenges removed six potential jurors from the venire with the seventh being a lady that her daughter went to school with me.

"And if I understand, further, that we have to show that he is a member of a recognizable racial group, and that he has been deprived of having some of those potential jurors dismissed solely because of race.

"THE COURT: I tell you what, Gentlemen, the situation that we are in right now, there is nothing I can do about the composition of the jury. So, I'm going to deny your motion, Mr. Rockett, in regard to your challenge under Batson. We will reconstruct the record to reflect the race and sex of the strikes, and both the State and the Defendant--we can do that through the jury venire.

"We can let the record reflect that Mr. Tolbert Levert is a black male. And also we will let the record reflect the racial and the sex make-up of the venire that is actually selected to try this case.

"And, then, Mr. Verin, if at that time I feel it is necessary I will give you an opportunity to justify the strikes that you made. Particularly, one strike made by the State I know was a man that said, whether or not somebody should be punished for what they did would depend on who they were. I think that was Mr. Kenneth E. Ross.

"MR. ROCKETT: I believe that was Robert Lewis, Your Honor.

"THE COURT: We will take that up. We are at the point now there is not much I can do about the composition of this particular jury.

"MR. VERIN: Judge, if we could have the record reflect that there are in fact three black jurors.

"THE COURT: We will let the record reflect both the race and sex of the jurors. Bring in the jury Mr. Burns."

On record pages 88-89 the record reflects the following:

"THE COURT: Gentlemen, I'm going to defer imposition of sentence and adjudication of guilt until I conclude this trial.

"Mr. Rockett, I have made, and if you want to check my notations of the racial composition of the venire, the race of the strikes made by the State and Defendant, and the racial composition of this jury.

"If you want to check my information and stipulate, fine. If not, we can present or provide that for the record in some other fashion. Do you want to take a look at that.

"MR. ROCKETT: Judge, I'm sure you have the same thing.

"(Off the record)

"(Proceedings ended for the day).

The next day the following occurred: (R. 89-92)

"STATE OF ALABAMA

"VS CC84-1125 & 1126

"TOLBERT LEVERT

"Bessemer, Alabama, August 19, 1986 (9:50 A.M.)

"SENTENCING

"THE COURT: We are here for the sentencing hearing in regard to this matter.

"At the appropriate time in this trial--for lack of a better way to say it--you raised the question in regard to what's been referred to, for lack of a better name, the Batson motion in regard to the use of peremptory challenges by the State of Alabama in regard to their exclusion of prospective jurors in this case.

"I indicated then that I would give you an opportunity to supplement the record to indicate, not only what the racial composition and the sex of what this jury was, but also let the record reflect what strikes were exercised--peremptory strikes--were exercised by the State and by the Defendant in this case.

"And I understand we are going to do that by stipulation. I made notes during the course of the trial. And check and see if these confirm with you gentlemen's records or recollections.

"The twelve people that actually ended up sitting on this jury were made up of four white males, two black males, two black females and four white females. And if my math is correct, about one-third of the venire was made up of members of the black race, and two of the twelve were black males. And the record reflects that the Defendant is also a black male.

"Does that correspond with you gentlemen's recollection?

"MR. ROCKETT: Yes, sir.

"MR. VERIN: Yes, sir.

"THE COURT: My recollection is that the State of Alabama exercised peremptory challenges to excuse Juror 32, a white female, Juror 33, a black male; Juror 46, a black male; Juror number 28, a black female; Juror number 49, a black male; Juror number 56, a black male; and Juror number 59, a black male.

"Peremptory challenges by counsel for the Defendant excused Juror number 43, a white female; Juror 45, a white male; Juror 48, a white male; Juror 53, a white female; Juror 55, a white female; Juror 57, a white male; and Juror 58, a white female.

"To be perfectly frank with you, Gentlemen, it's the opinion of the Court there is no Batson question presented by the end venire in this case or the exercise of the State of Alabama's peremptory strikes, because there was, of course, no exclusion of any racially cognizable, or otherwise group of the venire in this case.

"I will let you be heard on that, John, if you feel like you want to supplement anything in addition to what the record reflects.

"MR. ROCKETT: Yes, sir, Judge. I would like to go over, if I could, all the strikes. Number 49 was a Randy Phillips, a young black male who had a vehicle broken into, and had his house broken into on two different occasions. Tolbert was charged with unauthorized breaking and entering of a vehicle and theft.

"Number 56, Shedrick Cowan, a black male, who had had a vehicle broken into. Number 59, Klement Franklin, was a black male who had a relative who is a police officer.

"Forty-six was a Robert Lewis, a black male, who had had a vehicle broken into, and had his home broken into on three different occasions. Ruth Davis, number 28, was a black female, apparently no prior crimes against her.

"Number 33 was a Michael Hall, a black male, who also knows a police officer. And it's our position they were stricken from the jury because of their race, because they are the same race as the Defendant.

"THE COURT: All right. The Court having found that there is no, for lack of better phrase, the Batson argument complained in this case, I'm going to not require the State to justify every challenge for cause, other than what the Defense Counsel placed on the record.

"I deny your motion to quash the venire, Mr. Rockett, and give you an exception to my ruling."

While this cause was pending in this court, the Supreme Court of the United States rendered its opinion in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the court rejected the evidentiary burden which had formerly been placed upon a defendant who asserted an equal protection of law claim with reference to the State's alleged discriminatory use of peremptory challenges under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 ...