Madison v. State, 1 Div. 200

• Decision Date: 10 March 1987
• Docket Number: 1 Div. 200
• Parties: Vernon MADISON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 94

545 So.2d 94

Vernon MADISON v. STATE.

1 Div. 200.

Court of Criminal Appeals of Alabama.

March 10, 1987.

Rehearing Denied April 14, 1987.

On Return to Remand Dec. 30, 1988.

Rehearing Denied Jan. 27, 1989.

Certiorari Denied May 26, 1989 Alabama Supreme Court 88-558.

Karen A. Zokoff, Major E. Madison, Jr., Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and P. David Bjurberg and William D. Little, Asst. Attys. Gen., for appellee.

TYSON, Judge.

Vernon Madison was indicted for and convicted of the capital offense of murder of a police officer, in violation of § 13A-5-40(a)(5), Code of Alabama 1975. The trial jury recommended, by an eleven to one vote, that the appellant be sentenced to death. This recommendation was accepted and imposed by the trial judge following a separate sentencing hearing.

I

The appellant contends his "equal protection of law rights" were violated by the State's use of its peremptory strikes to remove all seven prospective black jurors from the venire in this cause. The appellant made his objections to the selection of the jury known to the trial court during the selection of the jury for trial and he requested the court require the State to articulate some non-discriminatory reason for the exclusion of these blacks from the jury. This request was denied. (R. 176--179) The issue is thus preserved for review.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court determined that, once a defendant has established a prima facie case of racial discrimination based on the prosecution's use of its peremptory strikes to remove black persons from the venire, the burden is on the State to provide a neutral explanation for its use of its peremptory strikes.

The appellant here has made a prima facie case of purposeful discrimination based on the State's use of its peremptory strikes and, thus, the State is required to provide non-racial reasons for its strikes.

Batson, supra has been found to apply retroactively to any case pending on original direct appeal as of the date on which it was decided, April 30, 1986. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Brown v. United States, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Ex Parte Jackson, 516 So.2d 768 (Ala.1986); Ex Parte Zackery, 521 So.2d 1 (Ala.1987); Crawford v. State, 504 So.2d 1221 (Ala.Crim.App.1987).

Therefore, this cause is remanded to the trial court with instructions that a hearing be conducted with the appellant and his counsel present, at which the State shall be required to state its reasons for its use of its peremptory challenges to exclude black persons from the venire in this cause. Jackson, supra; Zackery, supra; Crawford, supra.

A return shall be filed in this court showing the testimony taken in circuit court on

this question and the findings of the trial judge, by written order, with reference to the evidence developed in this hearing. Such return shall, together with the trial judge's findings and order, be filed expeditiously in this court following the hearing in circuit court.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

TYSON, Judge.

Vernon Madison was initially indicted for and convicted of the capital offense of the murder of a police officer in violation of § 13A-5-40(a)(5), Code of Alabama 1975.

The trial jury recommended that the appellant be sentenced to death by a vote of eleven to one. This recommendation was accepted and imposed by the trial judge following a separate sentencing hearing.

At trial the appellant contended that his rights under "Equal Protection of Law" were violated by the State of Alabama's use, through the district attorney's office, of its peremptory strikes to remove all seven prospective black jurors from the venire in this cause. The appellant had made known his objections to the selection of the jury to the trial court during this selection process and requested the court to require the State of Alabama, through the district attorney, to articulate some non-discriminatory reason for the exclusion of these blacks from this jury. This request was denied. (R. 176-179). The issue is thus preserved for our review.

Pursuant to the opinion of the Supreme Court of the United States in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), and the opinion of the Supreme Court of Alabama in Jackson v. State, 516 So.2d 768 (Ala.1986), this court remanded this cause to the circuit court for a hearing on the basis of the allegations made by the appellant with reference to the striking of the seven prospective black jurors from the venire.

As directed, the circuit court has conducted a hearing on this question and has filed its return in this court as directed in this court's initial opinion in this cause.

I

With reference to the appellant's contention that his "Equal Protection of Law" rights were violated by the State's use of its peremptory strikes, as hereinabove set forth, the circuit court entered its order and judgment in this cause following the hearing which reads as follows:

"ORDER

"This cause was remanded to this Court by the Court of Criminal Appeals to determine whether the prosecution could provide non-racial reasons for its uses of peremptory strikes in selecting the jury which convicted the defendant and recommended a sentence of death by electrocution. Madison v. State, 1 Div. 200 (March 10, 1987).

"In compliance with that order and the mandate of Batson v. Kentucky, 476 U.S. , 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), this Court held an evidentiary hearing on May 1, 1987.

"The State presented the testimony of William Lloyd Copeland, who, at the time of trial, served as Deputy Chief Assistant District Attorney and was the prosecutor responsible for the State's jury selection. Mr. Copeland addressed the striking of those seven potential Black jurors struck by the State and, in the opinion of the Court, articulated a non discriminatory reason for their exclusion.

"The defendant was accused and convicted of murdering Cpl. Julius Schulte, an officer of the Mobile Police Department. Mr. Copeland testified that two potential Black jurors were struck because they lived in the Plateau region of Mobile County. According to his testimony, another police officer, Henry Booth, had been shot and killed in Plateau while attempting to arrest a Black man in 1980. Since that time there has existed, in Mr. Copeland's opinion, a hostile attitude by the residents of Plateau towards the police.

"Yet a third potential Black juror was excluded by Mr. Copeland because he lived in the St. Stephens Road area of Mobile, which, according to Mr. Copeland, is another part of the City where "folks don't like the police".

"Two Black veniremen were struck because Mr. Copeland found their demeanor inappropriate. Though he had no independent recollection of these two potential jurors, Mr. Copeland cited examples of what he considered to be inappropriate demeanor, i.e. inattention, disinterest, and body language suggesting rejection of the prosecution.

"The exclusion of the two remaining Black veniremen was also explained by Mr. Copeland. One Black venireman was struck because he fell asleep during the jury selection process and another was struck because he was a mental health worker. Mr. Copeland stated that, in his opinion, mental health workers were sympathetic to defendants and, therefore, poor prosecution jurors. He further noted that the defendant had offered an insanity defense.

"The duty of this Court is not to evaluate the prosecutor's subjective theory of jury selection. Rather, the sole question presently before the Court is whether the State satisfied its burden of proof and provided a race neutral explanation for its peremptory strikes. The Court answers that question in the affirmative.

"After due consideration of all evidence, the Court finds as a proven fact that the exclusion of potential Black jurors was not the product of racial discrimination. Rather, the prosecutor's use of peremptory strikes was based on the facts of this particular case and the characteristics, other than race, of those persons challenged. Ex parte Jackson, (MS. 84-1112, December 19, 1986).

"Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED that the defendant's contention of racial discrimination based on the prosecution's use of peremptory strikes to remove Blacks from the venire is without merit and the defendant is not entitled to a new trial on this basis.

"DONE this 5th day of May, 1987.

"/s/ Ferrill D. McRae

"Presiding Circuit Judge"

(R. 6-7)

This court also notes the comment of the trial judge on record 34 at the close of the hearing which indicates that the district attorney's office prepared the order and judgment as hereinabove set forth. The statement from the record reads as follows:

"THE COURT: As I understand Batson v. Kentucky, the Supreme Court of the United States held that if the State uses or the attorney for the Defendant thinks that they're using their peremptory challenges indiscriminately to strike blacks--I might say that case does not say minorities, it says blacks. If the attorney for the Defendant objects, the burden then shifts to the State to show reasons why they struck the blacks. If there are reasons to strike the blacks, in accordance with Batson v. Kentucky, the Supreme Court of the United States has held that it is perfectly permissible. The State has demonstrated to me they had reasons. I see absolutely nothing wrong with it and I do not think Batson v. Kentucky applies. Therefore, Mr. Galanos, prepare an order for me to be sent to the Court of Criminal Appeals in compliance with their order.

"MR. GALANOS: Yes, sir.

"THE COURT: Good day, folks."

(R. 34-35)

At the hearing before the circuit court, Mr. Lloyd Copeland, who is currently a private...