Lewis v. State

Citation24 So.3d 480
Decision Date28 April 2006
Docket NumberCR-03-0480.
PartiesMichael Jerome LEWIS v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals

WISE, Judge.

The appellant, Michael Jerome Lewis, was convicted of capital murder in connection with the death of Timothy John Kaye. The murder was made capital because it was committed "during a kidnapping in the first degree or an attempt thereof." See § 13A-5-40(a)(1), Ala.Code 1975. After a sentencing hearing, the jury recommended, by a vote of 10-2, that Lewis be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Lewis to death.

Lewis raises a number of issues for this Court's review. However, our initial review of the record reveals that we must remand this case for additional action by the circuit court so that we may adequately address the merits of one of Lewis's claims.

Lewis contends on appeal that his due-process rights were violated when the prosecution used its peremptory challenges to remove African-Americans from the jury venire, thus violating the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In Batson, the United States Supreme Court held that prospective African-American jurors could not be struck from an African-American defendant's jury based solely on their race. The Supreme Court later extended its holding in Batson to apply to white defendants in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); to civil cases in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); to defense counsel in criminal cases in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); and to gender-based peremptory challenges in J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

The State contends that because no Batson objection was made below and that the error, if any, does not rise to plain error, this Court should reject Lewis's claim.

"Under the `plain error' doctrine, as enunciated in rule 45A, [Ala.R.App.P.,] the Court of Criminal Appeals is required to search the record in a death penalty case and notice any error (ruling or omission) of the trial court, and to take appropriate action, `whenever such error has or probably has adversely affected the substantial right of the [defendant],' in the same manner as if defendant's counsel had preserved and raised such error for appellate review."

Ex parte Johnson, 507 So.2d 1351, 1356 (Ala.1986). The plain-error analysis has been applied to death-penalty cases when counsel fails to make a Batson objection. Pace v. State, 714 So.2d 316, 318 (Ala. Crim.App.1995), opinion after remand, 714 So.2d 320 (Ala.Crim.App.1996), reversed in part on other grounds, 714 So.2d 332 (Ala. 1997). For plain error to exist in the Batson context, the record must raise an inference that the State engaged in "purposeful discrimination" in the exercise of its peremptory challenges. See Ex parte Watkins, 509 So.2d 1074 (Ala.1987).

A defendant makes out a prima facie case of discriminatory jury selection by "the totality of the relevant facts" surrounding a prosecutor's conduct during the defendant's trial. Batson, 476 U.S. at 94, 106 S.Ct. 1712. "Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging" a targeted class of jurors. 476 U.S. at 97, 106 S.Ct. 1712. While there may be "`any number of bases' on which a prosecutor reasonably may believe that it is desirable to strike a juror who is not excusable for cause...., the prosecutor must give a `clear and reasonably specific' explanation of his `legitimate reasons' for exercising the challenges." 476 U.S. at 98 n. 20, 106 S.Ct. 1712. It is then left to the trial court to determine whether the defendant has established "purposeful discrimination." 476 U.S. at 98, 106 S.Ct. 1712.

After Lewis's appeal was taken under submission by this Court, the United States Supreme Court released two decisions addressing Batson claimsMiller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), and Johnson v. California, 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). In Miller-El, the prosecutors used peremptory strikes to remove 10 of 11 African-American jurors from Miller-El's capital-murder trial. Miller-El objected, claiming that the strikes were racially based and could not be presumed to be legitimate, given the district attorney's office history of excluding African-Americans from criminal juries. The trial court denied Miller-El's request for a new jury, and his trial ended with a conviction and the imposition of the death sentence. While his appeal was pending, the Supreme Court released Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), holding that discrimination by a prosecutor on the basis of race in selecting a defendant's jury violated the Fourteenth Amendment. On remand, the trial court found no showing that prospective African-American jurors were struck because of their race. Miller-El's conviction was affirmed on appeal, and he sought federal habeas relief. The federal district court denied Miller-El relief, as did the United States Court of Appeals for the Fifth Circuit. After comparing similarly situated black and white jurors, the "shuffling" of the venire panel, and the disparate questioning of black and white jurors, the Supreme Court held that the state court's factual findings as to nonpretextual nature of the state's race-neutral explanations for its use of peremptory challenges to excuse 10 of 11 African-American jurors were shown to be wrong by the requisite clear and convincing evidence, warranting the grant of federal habeas relief. 545 U.S. at 253, 125 S.Ct. at 2339-40.

In Johnson, the prosecution used 3 of its 12 strikes to remove all 3 African-American jurors from Johnson's jury — leaving him to be tried and convicted of second-degree murder by an all-white jury. The California Court of Appeals set aside the conviction, but the California Supreme Court reinstated Johnson's conviction, holding that Batson permitted state courts to establish the standards used to evaluate the sufficiency of prima facie cases of purposeful discrimination in jury selection. The United States Supreme Court reversed, holding that California's "more likely than not" standard was an incorrect standard by which to determine the sufficiency of a prima facie case of purposeful discrimination in jury selection. Given the California Supreme Court's use of an incorrect standard, together with the fact that the prosecution removed of all 3 African-American jurors from the venire panel, the Supreme Court held that this evidence was sufficient to establish a permissible inference of discrimination to establish a prima facie case of discrimination under Batson, shifting the burden to the state to provide an adequate explanation for the jurors' exclusion by offering race-neutral reasons for its strikes. 545 U.S. at 239, 125 S.Ct. at 2418-19.

The record here supplies an inference of discrimination on the part of the State. Initially, we note that the record is conflicting as to the number of prospective jurors from which Lewis's jury was selected. The initial jury list of potential jurors consists of 189 individuals. (C. 115-132.) The strike list indicates that Lewis's jury was struck from potential jurors no. 1-96. (C. 133-34.) Eighteen of the 96 jurors were African-American. However, what appears to be the actual strike list indicates that Lewis's jury was struck from a pool of 53 jurors, and only 5 of those 53 were African-American. (C. 135.) The transcript of voir dire proceedings does not clarify this discrepancy. Although the transcript indicates that the roll of jurors was called and that all were present, the individual names were not recorded by the court reporter so that this Court could determine the exact number of prospective jurors present for voir dire. The record does, however, indicate that eight potential jurors were excused from further service, based on their responses during voir dire. Of the eight jurors excused, six were white and two were African-American, leaving five African-Americans.1 After voir dire concluded, the prosecutor and defense counsel exercised 41 peremptory challenges to select Lewis's jury. The State used its 21 strikes to strike 4 of the 5 remaining African-Americans from the venire. Defense counsel struck no African-Americans. Lewis's jury consisted of 11 white jurors and 1 African-American juror. Both alternate jurors were white.

The State contends that no inference exists that the State engaged in purposeful discrimination because of the meaningful voir dire directed at the jurors as a whole. The record indicates that the African-American jurors as well as the white jurors responded to the questions posed during voir dire. Moreover, it appears that the African-American jurors and some of the white jurors who gave similar responses to the questions posed were struck, while other white jurors were not. Although the State may have race-neutral and non-discriminatory reasons for its actions, we conclude that it is necessary to remand this case for a Batson hearing, in light of the many levels of judicial scrutiny that occur when a defendant is convicted of a capital offense and sentenced to death. As the Supreme Court noted in Miller-El:

"[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. 476 U.S., at 96-97, 106 S.Ct. 1712; Miller-El v. Cockrell, 537 U.S. [322] at 339, 123 S.Ct....

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