Pace v. State

• Citation: 714 So.2d 320
• Decision Date: 27 September 1996
• Docket Number: CR-93-740
• Parties: Levi PACE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 320

714 So.2d 320

Levi PACE v. STATE.

CR-93-740.

Court of Criminal Appeals of Alabama.

Sept. 27, 1996.

Timothy Kyle, Decatur, and Arthur Orr, Decatur, for appellant.

Jeff Sessions, atty. gen.; Jean Brown, Joseph Marston III, and Rosa Davis, asst. attys. gen., for appellee.

ON RETURN TO REMAND

ON APPLICATION FOR REHEARING

TAYLOR, Presiding Judge.

The "on return to remand" opinion issued on July 3, 1996, is withdrawn, and the following opinion is substituted therefor.

The appellant, Levi Pace, was convicted of murder made capital because the murder was committed during the course of a robbery. See § 13A-5-40(a)(2), Code of Alabama 1975. The appellant was sentenced to death by electrocution. We remanded this case so that the trial court could hold a hearing on whether blacks were discriminated against in the selection of grand jury forepersons in Morgan County and whether the prosecution discriminated against blacks when making its peremptory strikes to select the jury. Pace v. State, 714 So.2d 316 (Ala.Cr.App.1995).

The trial court has complied with our directions and has held a hearing on the above issues.

I

The appellant contended that blacks were discriminated against in the selection of grand jury forepersons in Morgan County and that his indictment, therefore, should have been dismissed.

To prove a prima facie case of discrimination in the selection of grand jury forepersons a petitioner must show: 1) that the group alleged to be discriminated against is a distinct group; 2) that the degree of underrepresentation is significant over a period of time; and 3) that the selection procedure is susceptible to abuse or is not race-neutral. Lee v. State, 631 So.2d 1059, 1060 (Ala.Cr.App.1993), and Locke v. State, 631 So.2d 1062 (Ala.Cr.App.1993). See also Johnson v. Puckett, 929 F.2d 1067, 1071 (5th Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991).

At the hearing on remand, the testimony established that blacks comprised a distinct group in Morgan County. Testimony also established that since 1927, the date a record of grand jury proceedings was first kept, no black had ever served as foreperson for a Morgan County grand jury. Testimony also established that the grand jury forepersons were chosen by the judge who presided over grand jury selection on the advice of the district attorney's office. Several judges testified that it was their practice to ask the district attorney who to appoint as grand jury foreperson or, in a few instances, to have the district attorney approve of the name they selected. There is absolutely no question here that a prima facie case of discrimination was proven. The trial court in its order denying the motion agreed. However, once a prima facie case of discrimination has been proven, the burden shifts to the state to rebut the prima facie case. As the United States Supreme Court stated in Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972):

"Once a prima facie case of invidious discrimination is established, the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result. Turner v. Fouche, 396 U.S. 346, 361, 90 S.Ct. 532, 540, 24 L.Ed.2d 567 (1970); Eubanks v. Louisiana, 356 U.S. 584, 587, 78 S.Ct. 970, 973, 2 L.Ed.2d 991 (1958).... The Court has squarely held, however, that affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion. Turner v. Fouche, supra, 396 U.S. at 361, 90 S.Ct. at 540; Jones v. Georgia, 389 U.S. 24, 25, 88 S.Ct. 4, 5, 19 L.Ed.2d 25 (1967); Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634 (1967)."

405 U.S. at 631-32, 92 S.Ct. at 1226, 31 L.Ed.2d at 541. See Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979) and Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1976). See also Guice v. Fortenberry, 661 F.2d 496 (5th Cir.1981).

As the United States Supreme Court stated in Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954):

"To rebut the strong prima facie case of the denial of the equal protection of the laws guaranteed by the Constitution thus established, the State offered the testimony of five jury commissioners that they had not discriminated against persons of Mexican or Latin American descent in selecting jurors. They stated that their only objective had been to select those whom they thought were best qualified. This testimony is not enough to overcome the petitioner's case. As the Court said in Norris v. Alabama, [294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) ]:

" 'That showing as to the long-continued exclusion of negroes from jury service, and as to the many negroes qualified for that service, could not be met by mere generalities. If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for the complete exclusion of negroes from jury service, the constitutional provision ... would be but a vain and illusory requirement.' [294 U.S. at 598, 55 S.Ct. at 583] "The same reasoning is applicable to these facts.

"Circumstances or chance may well dictate that no persons in a certain class will serve on a particular jury or during some particular period. But it taxes our credulity to say that mere chance resulted in their being no members of this class among the over six thousand jurors called in the past 25 years. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner."

347 U.S. at 481-82, 74 S.Ct. at 672, 98 L.Ed. at 872.

The United States Supreme Court, in Turner v. Fouche, 396 U.S. 346, 359, 90 S.Ct. 532, 539-40, 24 L.Ed.2d 567 (1970), stated:

"The testimony of the jury commissioners and the superior court judge that they included or excluded no one because of race did not suffice to overcome the appellant's prima facie case. So far the appellees have offered no explanation for the overwhelming percentage of Negroes disqualified as not 'upright' or 'intelligent'...."

396 U.S. at 360-61, 90 S.Ct. at 540, 24 L.Ed.2d at 569. See also Stephens v. Cox, 449 F.2d 657 (4th Cir.1971).

The trial court, in finding that the state had rebutted the prima facie case, relied on United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir.1982), where the Eleventh Circuit Court of Appeals, finding that the state rebutted the prima facie case, stated:

"Specific criteria for what constitutes a rebuttal case have never been developed[;] however several guidelines are well known. The central focus of a rebuttal case must be on a 'showing that racially neutral selection procedures have produced the disparity.' Alexander v. Louisiana, 405 U.S. at 631-32, 92 S.Ct. at 1226. Moreover, 'affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion.' Alexander v. Louisiana, 405 U.S. at 632, 92 S.Ct. at 1226. In other words, a mere denial of discriminatory intent will not suffice. Turner v. Fouche, 396 U.S. at 361, 90 S.Ct. at 540. This is not to say, however, that testimony alone is per se insufficient. We believe instead that testimony from the alleged discriminators should be viewed with a great deal of judicial scrutiny. ....

"The government's rebuttal case below consisted entirely of testimony from eight district judges involved in the foreman selection process for the years in question. Each judge testified that he acted independently of the other judges in choosing a grand jury foreman, although each employed similar guidelines in making a selection. These guidelines generally consisted of four separate factors: (1) occupation and work history; (2) leadership and management experiences; (3) length of time in the community; and (4) attentiveness during the jury empanelment. These factors directly related to the ability to perform the administrative functions and duties of a grand jury foreman. This is not a case in which arbitrary and unrelated criteria operated to exclude distinct groups from a position. Cf. Turner v. Fouche, 396 U.S. at 361, 90 S.Ct. at 540 (where jury commissions disqualified blacks because they were not 'upright'). We can think of no better criteria for determining which grand jury member is best able to serve as foreman. We recognize, however, that this criteria potentially can be used in a discriminatory manner. For this reason, the district judge alone is entrusted with the discretion to select a grand jury foremen. Fed.R.Crim.P. 6(c)."

672 F.2d at 1387-88. (Emphasis added.) What the trial court failed to consider when relying on Perez-Hernandez was the fact that the district attorney in Morgan County recommended to the trial court the person he wanted the trial court to select as grand jury foreperson. The situation that existed in this case is not analogous to the situation in Perez-Hernandez, where the judge, without outside advice, selected the grand jury foreperson.

In this case, the judge did not "alone" select the grand jury foreperson. The witnesses called in this case testified that they could not remember one instance when the trial court did not follow the recommendation of the district attorney. The individuals called to testify, a great many of whom were former district attorneys, stated that they picked the grand jury foreperson on the basis of whether they knew the person and whether that person had a good reputation in the community. One witness, a former district attorney and a former judge in Morgan County, admitted that the criteria he used when recommending a grand jury foreperson to the court was subjective. Of course selection by the district attorney is inherently suspect because unlike the judge, the district...