Owes v. State

• Citation: 638 So.2d 1383
• Parties: Phyllis OWES v. STATE. CR 92-481.
• Decision Date: 09 July 1993
• Court: Alabama Court of Criminal Appeals

Page 1383

638 So.2d 1383

Phyllis OWES v. STATE.

CR 92-481.

Court of Criminal Appeals of Alabama.

July 9, 1993.

C. Robert Montgomery, Chatom, for appellant.

James H. Evans, Atty. Gen., and Joseph Marston III, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Phyllis Owes, the appellant, was convicted for the unlawful distribution of cocaine and was sentenced to 15 years' imprisonment. That sentence included enhancements under both the Habitual Felony Offender Act and the schoolyard enhancement statute, Ala.Code 1975, § 13A-12-250. She raises four issues on this direct appeal of that conviction.

I.

The appellant alleges racial discrimination in the prosecutor's use of his peremptory challenges of the jury venire.

In this regard, the record shows the following:

"THE COURT: All right. For the record, State satisfied with the makeup of the jury racially and otherwise?

"MR. KEAHEY [district attorney]: Judge, I'm satisfied with the makeup. I don't know if I'm satisfied with the way Mr. Lee [defense counsel] went about it.

"THE COURT: Are you making an objection, you need to make it now.

"MR. KEAHEY: Judge, I object. It appears that the attorney for the defendant has used his strikes in a manner which is racially motivated. He used all of his strikes to strike members from the venire, appears no other motive for him to have struck many of these. I know some of the reasons for a few. Based on voir dire, it's plain. There are some of these I can't fathom any reason on the record as to why he struck these individuals as to other than they are white.

"THE COURT: Mr. Lee, do you have--defendant satisfied with the racial makeup of the jury?

"MR. LEE: No, sir, your Honor, the State struck, the first three were black with no apparent reason. The fourth strike, Number 22, is the first white strike he had. Then he had no further strikes of any white people until Number 24, which was the second alternate, assuring that the jury, as far as he was concerned, all other factors being equal, he struck all the blacks he could with the exception of one.

"My client is black, and I have had to use some of my strikes I would have used otherwise to counteract hi[s] striking all the blacks off the jury. He struck nine black people. My client being black, I believe we should have a jury of her peers as near as possible.

"I believe his strikes were, without other explanation, racially motivated. I don't believe the voir dire would have anything to do with his strikes, the questions on voir dire.

"(Pause)

"THE COURT: Both the State of Alabama and the defendant have objected to the makeup of the jury based on the strike pattern of the representative [of the] other side. Although the Court concedes that the strike pattern is rather unusual, the results of the strike is a jury, petit jury, twelve person jury of 41 percentile, which is the same percentile as the strike list of the 34 jurors from which we started.

"Since the percentiles are the same, and I believe that the percent is very close to the population of Clarke County, Clarke County's population, I believe, is 42% black. So, even though the way it was arrived at is peculiar, the Court finds that Batson does not apply in this particular circumstance. Therefore, I will deny the State's challenge and the defendant's challenge, and we'll seat this jury." R. 27-29.

In this case, because the trial court found that "the strike pattern is rather unusual" and that "the way it was arrived at is peculiar," we cannot equate that court's ruling that "Batson does not apply" as a finding that both the prosecutor and defense counsel failed to establish a prima facie case of racial discrimination in the selection of the jury. The trial court has a "duty ... to determine, first, whether the defendant [or the state] has made a requisite showing of the racially discriminatory use of peremptory challenges." Ex parte Branch, 526 So.2d 609 621 (Ala.1987) (emphasis omitted). See also Lemley v. State, 599 So.2d 64, 70 (Ala.Cr.App.1992). Under Ex parte Williams, 571 So.2d 987, 989 (Ala.1990), an appellate court may not use a procedural basis to justify an alleged substantive error.

Batson applies equally to strikes exercised by the prosecutor and by defense counsel. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Ex parte Pilot, 607 So.2d 311 (Ala.1992); Lemley v. State, 599 So.2d 64, 66 (Ala.Cr.App.1992). When a veniremember is excluded on the basis of race, "the harm is the same," "[r]egardless of who invokes the discriminatory challenge." McCollum, 505 U.S. at ----, 112 S.Ct. at 2353.

In Williams v. State, 634 So.2d 1034 (Ala.Cr.App.1993), this Court held that the principles of Batson apply to the striking of white veniremembers by the prosecution. The Alabama Supreme Court has "assumed," for purposes of responding to argument, that the safeguards 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), apply to the striking of white venirepersons. White Consolidated Indus., Inc. v. American Liberty Ins. Co., 617 So.2d 657, 659 (Ala.1993).

"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." Harrell v. State, 571 So.2d 1270, 1271 (Ala.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991). See also Ex parte McWilliams, [Ms. 1911242, January 29, 1993] --- So.2d ---- (Ala.1993); Flowers v. State, 608 So.2d 764, 765 (Ala.Cr.App.1992); Jones v. State, 603 So.2d 419, 420 (Ala.Cr.App.1992).

However, statistical evidence may be used both to establish a prima facie case of discrimination and to show the absence of a discriminatory intent. Ex parte Bird, 594 So.2d 676, 680 (Ala.1991); Ex parte Yelder, 630 So.2d 107 (Ala.1992). In Ex parte Williams, 571 So.2d 987, 990 (Ala.1990), the Alabama Supreme Court held that the defendant's "evidence that the State struck four of the five black venire members [was] sufficient evidence of discrimination to establish her prima facie case for discrimination."

In this case, it appears that the trial court employed a "result-oriented" approach like the one condemned in Ex parte Lynn, 543 So.2d 709, 712 (Ala.1988), cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989): "[W]e decline to articulate the mechanical result-oriented approach urged by [the appellant], for such a procedure is not contemplated by the holding in Batson, supra." "[T]he removal of even one juror for a discriminatory reason is a violation of the equal protection rights of both the excluded juror and the minority defendant." Harrell v. State, 555 So.2d 263, 267 (Ala.1989).

The Alabama Supreme Court and this Court have repeatedly set out the proper procedure to follow where allegations of racial discrimination in the selection of a trial jury are made. Among the more recent cases see Huntley v. State, 627 So.2d 1013 (Ala.1992); Millette v. O'Neal Steel, Inc., 613 So.2d 1225, 1229 (Ala.1992).

The cause is remanded with directions that the trial court conduct an evidentiary hearing and make the required determination of whether either party established a case of prima facie discrimination in the selection of the jury by the other party. If the trial court determines that defense counsel established a prima facie case of discrimination by the prosecutor, the court shall require the prosecutor to provide race neutral explanations for his strikes. If the trial court determines that the prosecutor established a prima facie case of discrimination by defense counsel, the trial court need not require defense counsel to explain his strikes. Any curative action with regard to a criminal defendant's use of peremptory challenges in a racially discriminatory manner must be taken at trial. A party may not profit on appeal from his own misconduct. Phillips v. State, 443 So.2d 1328, 1331 (Ala.Cr.app.1983). The transcript of the evidentiary hearing and the written findings and conclusions of the trial court shall be filed in this Court within 60 days from the date of this opinion.

II.

The appellant argues that the evidence is insufficient to support her conviction for distribution.

The State's evidence shows that on May 15, 1992, Ronald Terrance Davis, working as an undercover informant for the police, purchased crack cocaine in the front living room of a house located at 260 Byrd Road in Thomasville, Alabama. Present at the sale were Deloris Washington, Sally Lanier, and the appellant.

Davis told Deloris Washington that he wanted to buy $50 worth of crack cocaine, and during the conversation concerning the sale, the appellant stated that "she had $23 on it." R. 35. Davis testified that his "agreement with [the appellant was that], me and her was going to go partially half on a $50 piece of crack cocaine." R. 36. "What we was doing, [was] putting together to buy cocaine by her [the appellant] knowing Deloris." R. 53. Davis testified that the appellant was not selling.

Davis put his $50 on the table. Deloris Washington picked up the money and put down the piece of cocaine. The appellant then "picked up [the cocaine], spinned around, broke off it," and gave Davis part. R. 36.

The indictment charged that the appellant

"or her accomplices Sally Lanier or Deloris Washington ... did on to-wit: May 15, 1992, while at or near 260 Byrd Road in Thomasville, Alabama, unlawfully sell, furnish, give away, manufacture, deliver or distribute, to-wit: Cocaine, a controlled substance to Ronald Davis contrary to and in violation of Section 13A-12-211 of Code of Alabama ...." C.R. 4.

Section 13A-12-211, Code of Alabama 1975, states that "[a] person commits the crime of unlawful distribution of controlled substances if ... he sells, furnishes, gives away, manufactures, delivers or distributes a controlled substance." "[I]n a prosecution for ...