McNair v. State

Decision Date24 July 1992
Citation653 So.2d 320
CourtAlabama Court of Criminal Appeals
PartiesWillie McNAIR v. STATE. CR 90-1556.

Eugene P. Spencer, Dothan, for appellant.

James H. Evans, Atty. Gen., and Melissa G. Math, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Willie McNair, the appellant, was indicted and convicted for the capital offense defined in Ala.Code 1975, § 13A-5-40(a)(2), involving the murder and robbery of 68-year-old Ella Foy Riley. The trial judge accepted the recommendation of the jury and sentenced the appellant to death. On this appeal from that conviction and sentence, the appellant raises 13 issues.

The facts in this case are largely undisputed. On the night of May 21, 1990, 68-year-old Ella Fay Riley was murdered in the kitchen of her own home. The next day, the appellant confessed to stabbing Mrs. Riley in the throat and taking her purse. He also took law enforcement officers to the area where Mrs. Riley's purse had been discarded.

The appellant did not testify at trial. His defense, as argued by defense counsel on the basis of the statements given by the appellant, was that he was guilty of the lesser included offense of intentional murder. According to the defense version of the facts, the appellant, accompanied by Olin Grimsley, went to Mrs. Riley's house to ask her to lend him some money. When she refused to do so, the appellant, who had smoked crack cocaine a few hours before, got angry, "lost control," and stabbed her. The purse was taken only as an afterthought. The essence of the appellant's defense was that, although intentional, the murder was not committed during the course of a robbery.

I.

The appellant asserts that the prosecutor was guilty of racial discrimination in his removal of black members from the jury venire in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987).

There were 64 members of the venire from which the jury was selected. R. 612. Eighteen of those members were black. The State struck 11 of those blacks. Seven blacks served on the jury.

Although the trial judge made no initial finding that the appellant had established a prima facie case of racial discrimination, he requested the prosecutor to state his reasons for the strikes. The prosecutor's reasons for striking those 11 blacks were:

1) Boatwright--"has a misdemeanor in the past" and based on the recommendation of assistant district attorney Durrell Whiddon, "who knows everybody." R. 631.

2) Brackin--was born in 1962. R. 640.

3) Brady--was born in 1966. R. 640.

4) Chitty--his brother had recently been convicted for "selling." Chitty and his brother lived at the same residence. R. 631-32.

5) Ford--criminal violations and anti-law enforcement. R. 632-33.

6) Kelly--based on information from law enforcement that he was " 'unstable per family members,' that he was not a stable individual in relationship in his demeanor, appearance, or actions." R. 633.

7) Leonard--born 1908, " 'slow, slow, doesn't pay attention,' " 82 years old. R. 633.

8) Marsh--based on Whiddon's recommendation which was based on Whiddon's "knowing him, his reputation in the community." R. 634.

9) McAllister--based on Whiddon's recommendation "as not being in Henry County." R. 634-35.

10) Rivers--born in 1963, "we used our last strikes to strike all the people on the list that were born in the 1960's." R. 639.

11) Thomas--born in 1965. R. 639.

After the prosecutor listed his reasons for these strikes, the trial judge inquired into the racial composition of Henry County, receiving estimates ranging from 33% to 40% for the black population of the county. Upon determining that 58% of the jury was black, the trial judge denied the appellant's "Batson " objection:

"I'm going to deny the Batson motion. I think between the number of blacks and the reasons given by the State, and the pattern that no racially relative pattern has been shown as to their strikes." R. 646.

Although some of the State's explanations for its peremptory strikes may be suspect under other circumstances, see Ex parte Bird, 594 So.2d 676 (Ala.1991), and despite the lack of "meaningful" voir dire concerning the basis for the strikes, see Richmond v. State, 590 So.2d 384, 386 (Ala.Cr.App.1991), we find no inference of racial discrimination because of the statistical evidence present in this case. Here, blacks composed, at most, 40% of the county population, 28% of the jury venire was black, and 58% of the jury was black.

"When the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created. Logically, if statistical evidence may be used to establish a prima facie case of discrimination, by showing a discriminatory impact, ... then it should also be available to show the absence of a discriminatory purpose."

Harrell v. State, 571 So.2d 1270, 1271-72 (Ala.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991). See also Scott v. State, 599 So.2d 1222 (Ala.Cr.App.1992).

II.

In this case, the appellant presented no proof that the pretrial publicity of was so extensive as to warrant individual voir dire. Brown v. State, 571 So.2d 345, 350 (Ala.Cr.App.) , writ quashed, 571 So.2d 353 (Ala.1990), remanded, 501 U.S. 1201, 111 S.Ct. 2791, 115 L.Ed.2d 966 (1991). See Parker v. State, 587 So.2d 1072, 1078-80 (Ala.Cr.App.1991); Kuenzel v. State, 577 So.2d 474, 484 (Ala.Cr.App.1990), affirmed, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).

In denying the appellant's motion for change of venue, the trial judge issued the following order:

"The Court does not find that the pretrial publicity by news media was so extensive as to pre-inform or prejudice a jury venire in this case. It appears that such news coverage was even less than that associated with other serious crimes in this circuit and in Southeast Alabama. Most of the news coverage was limited to less than one week during the month of May, 1990. The Court therefore generally denies the Motion for Change of Venue from this circuit." R. 2249.

Those findings are supported by the record. Furthermore, on the question of pretrial publicity alone, the trial judge allowed individual voir dire examination of 23 members of the venire. In addition, individual voir dire examination was permitted of a number of venire members whose responses to other questions during general voir dire indicated that further examination was required.

"Whether to allow individual voir dire examinations is within the trial court's discretion. Hallford v. State, 548 So.2d 526, 538 (Ala.Cr.App.1988), affirmed, 548 So.2d 547 (Ala.1989), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989). Furthermore, '[t]he decision of the trial court in denying individual voir dire examination will not be disturbed absent abuse of that discretion.' Henderson v. State, 583 So.2d 276, 282 (Ala.Cr.App.1990), affirmed, 583 So.2d 305 (Ala.1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992), quoting Halford, 548 So.2d at 538."

Anderson v. State, 596 So.2d 897, 898 (Ala.1992).

III.

We find no error in the trial court's granting the State's challenges for cause.

"The qualification of a juror is a matter within the discretion of the trial court. Clark v. State, 443 So.2d 1287, 1288 (Ala.Cr.App.1983). The trial judge is in the best position to hear a prospective juror and to observe his or her demeanor. A trial judge's rulings on a juror's qualifications are entitled to great weight on appeal and will not be disturbed unless clearly shown to be an abuse of discretion."

Ex parte Dinkins, 567 So.2d 1313, 1314 (Ala.1990).

" 'In challenging a juror for cause, the test to be applied is that of probable prejudice. ... While probable prejudice for any reason will serve to disqualify a prospective juror, qualification of a juror is a matter within the discretion of the trial court. ... This Court must look to the questions propounded to, and the answers given by, the prospective juror to see if this discretion was properly exercised. ... A reversal is not appropriate absent abuse of this discretion. ...

" 'Ultimately, the test to be applied is whether the juror can set aside her opinions and try the case fairly and impartiality, according to the law and the evidence. ... This determination, again, is to be based on the juror's answers and demeanor and is within the sound discretion of the trial judge. Thus, a prospective juror should not be disqualified for prejudices or biases if it appears from his or her answers and demeanor that the influence of those prejudices and biases can be eliminated and a verdict rendered according to the evidence.' "

Ex parte Ellington, 580 So.2d 1367, 1368-69 (Ala.1990) (quoting Knop v. McCain, 561 So.2d 229, 232 (Ala.1989)).

A. Health Reasons

The appellant complains about the excusal of five veniremembers for medical reasons: 1) Corbitt was a diabetic, who sometimes took three shots a day and was on a strict diet. R. 56-57. 2) Sample had a hearing deficiency, documented by a letter, and thought that he would be unable to hear the proceedings. R. 57-58. The prosecutor stated that Sample did not respond to one of the voir dire questions. R. 86. 3) Pettis was fasting pursuant to her religious beliefs. R. 59. In granting the challenge for cause, the trial judge stated, "Also, she said that as the week progressed, she would become weak. * * * But she said she would become weak, is the thing, as the week progresses." R. 87. Although the record does not reflect that Pettis made that statement, the judge's recollection was not challenged at the time. 4) Norton had been bitten by a snake "a couple of years back," and her feet would sometimes swell so bad while she was sitting that she could not walk. R. 61-62. 5) Howie stated that he was "very nervous"...

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