Lewis v. State
| Decision Date | 23 August 1988 |
| Docket Number | 4 Div. 822 |
| Citation | 535 So.2d 228 |
| Parties | Thomas LEWIS, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
O. Bruce McLean and Steven E. Blair, Enterprise, for appellant.
Don Siegelman, Atty. Gen., and William W. Whatley, Jr., Asst. Atty. Gen., for appellee.
Appellant, Thomas Lewis, was first convicted on November 19, 1977, of the capital offense of robbery during the course of which the victim is intentionally killed, in violation of § 13-11-2(a)(2), Code of Alabama 1975, 1 and sentenced to death. On appeal to this court, we held that the death penalty was not sustained by the evidence presented at the hearing on aggravating and mitigating circumstances. Lewis v. State, 380 So.2d 970 (Ala.Cr.App.1979). We affirmed the conviction, but remanded the case for entry of a sentence of life imprisonment without the possibility of parole. Id. at 978. In response to our remand, the trial court held another sentencing hearing and sentenced appellant to life imprisonment without parole. On return to remand, we affirmed the conviction and sentence. Id. at 978-80. Subsequently, appellant filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Alabama, claiming, inter alia, that his due process rights were violated because the preclusion clause contained in § 13-11-2, Code of Alabama 1975, prevented consideration of lesser included offenses, relying on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). On April 16, 1986, the United States District Court for the Middle District of Alabama, in accordance with Beck v. Alabama, granted appellant's petition for writ of habeas corpus and ordered that appellant be granted a new trial within sixty days or released from custody. Lewis v. Johnson, No. 85-V-0431-S Civ. (M.D.Ala., April 16, 1986).
A new trial was held within sixty days on the capital offense charged, robbery during the course of which the victim is intentionally killed, § 13-11-2(a)(2). Appellant was again convicted of the capital offense on October 9, 1986, and sentenced to life imprisonment without parole. From this second conviction, he appeals, raising ten issues.
The facts surrounding the robbery-murder are sufficiently reported in our prior decisions, Lewis v. State; Colley v. State, 405 So.2d 374 (Ala.Cr.App.1979), rev'd, 405 So.2d 391 (Ala.1981); and Colley v. State, 436 So.2d 11 (Ala.Cr.App.1983). 2 We deem it unnecessary to recite the facts, in full, again and will only recite those facts necessary to our discussion of the specific issues raised.
Appellant contends that the trial court erred in failing to quash the jury because the state allegedly engaged in a systematic pattern of excluding qualified black venirepersons from the jury in violation of his constitutional rights, relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). There were 69 prospective jurors on the panel from which the trial jury was selected. Among these were three blacks, Edward Brown, Billy R. Townsend, and Johnnie Eubanks. The state struck all three, leaving an all-white trial jury. Although the trial court did not make an initial determination that appellant had made a prima facie showing of racially discriminatory strikes, it allowed the prosecutor to give his reasons for the strikes. We will examine the reasons. See Currin v. State, 535 So.2d 221 (Ala.Cr.App.1988) ().
The record reflects that two of the black prospective jurors were clients or former clients of the defense counsel. The voir dire examination shows the following:
In addition to striking prospective juror Townsend for having been a client of defense counsel, another reason developed during voir dire examination. The record shows the following:
It is reasonable to conclude that Townsend misunderstood the trial court's question and responded as having been a defendant in a criminal case instead of a victim. The prosecutor informed the court that, in addition to striking Townsend because he had been a client of defense counsel, he felt that he may have had some prior trouble with the "law" as it related to drugs.
In reference to the third black prospective juror, Johnnie Eubanks, the voir dire examination disclosed uncertainty as to whether she resided within the jurisdiction of the court. She testified that she and her husband had just moved to Dale County from Calhoun County. She stated that she lived at Fort Rucker in Dale County with her husband and that her mother maintained a residence in Enterprise (Coffee County). The prosecutor advised the court that he used a peremptory strike to remove her rather than take a chance and leave someone on the jury whose qualifications might be questioned in the future, especially in light of the fact that this was potentially a death penalty case. In addition, the prosecutor stated that it appeared that Mrs. Eubanks was seizing every opportunity to stay off the jury. The record supports this conclusion.
The trial court denied appellant's motion to quash the jury panel, finding that there was no evidence that any blacks had been excluded for racially motivated reasons, but, on the contrary, were excluded for racially neutral reasons.
We find that the record reveals legitimate, nonpretextual, neutral explanations for the state's use of its peremptory challenges against the three black members of the venire. The denial of appellant's motion attacking the jury selection process on the basis of Batson v. Kentucky was proper.
Appellant contends that the trial judge erred in refusing to recuse himself from hearing the case because the victim of the crime was the father of a court's bailiff, James M. Counts. James M. Counts was indeed the son of the victim, James O. Counts, Jr. The bailiff was a merit system employee, employed by the Administrative Office of Courts, and he worked on a regular basis for three circuit judges and a district judge. He had worked as a bailiff for approximately two years. The only association between the trial judge and the bailiff involved the business of the court. They did not see each other socially, although the bailiff had attended a social gathering at the trial judge's home on one occasion when all the law enforcement officers in the courthouse had been invited. Counts supported the judge politically during his political campaign for office because, Counts said, "he was the best man."
Our review of the record indicates that, in this case, Bailiff Counts did not perform the duties of bailiff requiring contact with the jury and, indeed, may not have performed any of the duties of bailiff at all. The record shows that the jury was sequestered during the trial and placed under the supervision of Deputy Sheriff John Moore and a matron. The record refers to Moore as the bailiff.
Canon 3 C. (1) of the Alabama Canons of Judicial Ethics, provides, "A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned...." The Canon does not require disqualification "upon mere accusation of bias unsupported by substantial fact." Taylor v. Taylor, 359 So.2d 395, 398 (Ala.Civ.App.1978). See also Ross v. Luton, 456 So.2d 249 (Ala.1984); Moreland v. State, 469 So.2d 1305 (Ala.Cr.App.1985). Prejudice on the part of a judge should not be presumed. Ross v. Luton; Duncan v. Sherrill, 341 So.2d 946 (Ala.1977).
Our review of the record, particularly the evidence presented by appellant in support of his recusal motion, fails to reveal any evidence which would require the disqualification of the trial judge or cast question upon his impartiality. We find nothing to indicate a personal bias toward appellant. The relationship between the trial judge and Bailiff Counts, considered in the light of the evidence of this case, does not have the appearance of impropriety, as is urged by appellant. We also note that appellant has pointed to no occurence during the trial, and we can find none, in which the judge acted in any way other than entirely impartially. See Murphy v. State, 403 So.2d 314 (Ala.Cr.App.), cert. denied, 403 So.2d 316 (Ala.1981).
Appellant contends that the trial court erred in admitting into evidence inculpatory statements made by him to the police while in custody, on the grounds that (1) his mental subnormality was so great that he could not have knowingly and intelligently waived his constitutional rights prior to questioning and (2) these oral statements were obtained by threats of violence and, hence, were not voluntary.
Appellant made three inculpatory...
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