Mitchell v. State

• Citation: 579 So.2d 45
• Parties: Clarence MITCHELL v. STATE. CR 89-860.
• Decision Date: 01 February 1991
• Court: Alabama Court of Criminal Appeals

Page 45

579 So.2d 45

Clarence MITCHELL v. STATE.

CR 89-860.

Court of Criminal Appeals of Alabama.

Feb. 1, 1991.

Remand to Remand April 26, 1991.

W. Lloyd Copeland of Clark, Deen & Copeland, Mobile, for appellant.

Don Siegelman, Atty. Gen., and James F. Hampton, Sp. Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Clarence Mitchell, the appellant, was convicted of two counts of first degree robbery and was sentenced to two concurrent terms of life imprisonment. At the same trial, he was also convicted of sodomy in the first degree and was sentenced to a consecutive term of life imprisonment. He raises three issues on this appeal from those convictions.

I.

The appellant contends that his trial counsel was ineffective for failing to challenge the prosecutor's exercise of her peremptory jury strikes against blacks pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The appellant was represented at trial by lawyer Andrew Jones. Although the prosecutor used four peremptory strikes to remove blacks from the jury venire, Mr. Jones made no objection. "[I]n order to preserve the issue for appellate review, a Batson objection, in a case in which the death penalty has not been imposed, must be made prior to the jury's being sworn." Bell v. State, 535 So.2d 210, 212 (Ala.1988). Lawyer Lloyd Copeland was appointed to represent the appellant after the appellant had been convicted and sentenced. Mr. Copeland filed an amendment to the pending motion for new trial, alleging that trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to make a "Batson " objection.

An evidentiary hearing was held on this issue. It appears that the jury strike list was composed of 24 veniremembers, of which 10 were black. Three blacks were struck by the appellant. The appellant's last strike was the alternate, who was black and who was dismissed before the jury began its deliberations. Four blacks (three males, one female) were struck by the State. The prosecutor used her 2nd, 3rd, 5th, and 6th strikes against blacks. The State's first strike was a white female; its fourth strike, a white male. Three blacks served on the jury. After defense counsel had made this showing, the trial judge stated, "I am not ruling at this time that that [the fact that the prosecutor used four of her six strikes to remove blacks] is a prima facie showing, but I will let [the prosecutor] go ahead and give her race neutral reasons."

The prosecutor stated that her "memory is a little hazy" but looked over her notes and gave the following reasons for her peremptory strikes of black venirepersons.

1) M., # 8--The prosecutor stated that she "did not like his appearance. He specifically was wearing an ear ring. * * * And I make it a habit to strike all males who are wearing earrings regardless of color." At one point during the hearing, defense counsel Copeland stated that he 2) D., # 13, according to the prosecutor, "was a very obese woman, who to me had a somewhat ... pompous--kind of a pompous, putting on airs type attitude." When asked what her occupation was, she initially said "a supervisor and left it at that." Later on, when the prosecutor asked her what kind of supervisor, she responded a "supervisor of environmental services." The prosecutor stated that "it turned out to be was she was the head maid somewhere [a local hospital]." With regard to this strike, the trial judge stated: "I recall wondering about the juror, what in the world she was talking about when she said what she did. And it seemed like we kind of had to drag it out of her what she did. That's really not a quality any lawyer would want in a venire member. I think the State has made a reasonably good explanation on that." The voir dire shows that this veniremember initially responded, "I work at Providence Hospital. I am a supervisor." Upon further questioning, she stated that she was "supervisor of environmental services." When asked, "What is that?" she finally replied, "Housekeeping."

"certainly had no qualm with that, about the earring." Later he stated, "Although, with regard to the earring, I think that would--as I have stated, I think that would certainly be a factor. When it is a black juror, once again, I think they need to go into why it applies to the facts of this particular case." The trial judge stated, "I never have seen what difference it makes what anybody wears, but I may be peculiar in that regard and I think the State's being concerned about his wearing an earring may be a legitimate concern of a lawyer in a case. Can't find fault with it."

3) L., # 7, was a young black male who was struck "because during voir dire he was--I can't say he was dozing, but I can say he did have his eyes shut." The trial judge stated: "Eyes shut would certainly be a reason if the State thought that the juror was dozing. I can't find fault with that."

4) G., # 5, was struck because he was unemployed and because he indicated he had a job interview or some important appointment that afternoon that he "felt pretty strongly about keeping." With regard to this veniremember, the trial judge stated: "I recall myself feeling very relieved when he was struck because I was worrying about whether or not he would be wondering whether he was going to get to his interview or not throughout the trial."

After the prosecutor gave these explanations for her four strikes, the trial judge found "no pattern of discrimination."

"My observation of [the assistant district attorney] over the numerous cases she has tried before me was that she was absolutely unbiased as among jurors. And her experience with black jurors was generally good. She generally found them to be ready to convict a guilty defendant. I don't see from this a pattern of racial discrimination."

Although the voir dire of the jury is contained in the record on appeal, other than the portions set out above concerning veniremember D., that voir dire provides no insight into the prosecutor's exercise of her peremptory strikes. The voir dire was not extensive. With the exception of D., the prosecutor asked no follow-up questions associated with her reasons for exercising her peremptory strikes. Here, there was "a lack of questioning to the challenged juror, or a lack of meaningful questions." Ex parte Branch, 526 So.2d 609, 624 (Ala.1987). See also Jackson v. State, 557 So.2d 855, 856 (Ala.Cr.App.1990) ("The prosecutor did not specifically question any of the five blacks he struck and did not ask any question on voir dire relating to the explanation he gave for his strikes of any black veniremember."). However, there is no evidence of either "disparate treatment" or "[d]isparate examination of members of the venire" which would tend to indicate racial discrimination. Ex parte Branch, 526 So.2d at 624.

Recently, the Alabama Supreme Court made the following observations with regard to Batson, as interpreted in Ex parte Branch, supra.

"[A] defendant cannot prove a prima facie case of purposeful discrimination solely from the fact that the prosecutor "... The fact that the blacks struck include both men and women and that they were of a variety of ages, occupations, and social or economic conditions, indicates that race may have been the deciding factor. Harrell, supra, at 266. Furthermore, the prosecutor engaged in a rather limited voir dire, asking only whether any of the members of the venire had been the victim of a crime; whether any of them, or anyone in their immediate family or close circle of friends, had been charged with a crime; whether any of them had any religious beliefs that would effectively prevent them from sitting in judgment on Harrell; and whether any member of the venire thought that possession of marijuana or cocaine should not be a crime. The record fails to show that any of the five blacks responded to the prosecutor's questions in such a way as to give any insight into why they were stricken. The extent of the prosecutor's questions during voir dire and the responses of the venire members to those questions are also relevant in determining whether the prosecutor engaged in purposeful discrimination. Harrell, supra, at 266. Finally, we take judicial notice of Jones v. Davis, 906 F.2d 552 (11th Cir.1990), in which the United States Court of Appeals, Eleventh Circuit, reversed the district court's denial of habeas corpus relief for Jones, noting that Jones had established a prima facie case of discrimination under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), on the part of the Mobile County district attorney's office and that that prima facie case had not been rebutted. The past conduct of the prosecutor in using peremptory challenges to strike all blacks from the jury venire is an important factor to be considered in determining whether an inference of discrimination exists. Harrell, supra, at 266."

struck one or more blacks from his jury. A defendant must offer some evidence in addition to the striking of blacks that would raise an inference of discrimination. 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, Harrell [v State ], 555 So.2d 267 [ (Ala.1989) ], citing United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986), then it should also be available to show the absence of a discriminatory purpose.

(Emphasis in original.) Harrell v. State, 571 So.2d 1270, 1271-72 (Ala.1990).

In this case, blacks composed approximately 42% (.416) of the venire panel, after certain members had been excused for cause. Blacks composed 25% of the jury. The fact that three blacks served on the appellant's jury is not...