Parker v. State

• Citation: 587 So.2d 1072
• Parties: John Forrest PARKER v. STATE. CR 89-838.
• Decision Date: 20 September 1991
• Court: Alabama Court of Criminal Appeals

Page 1072

587 So.2d 1072

John Forrest PARKER v. STATE.

CR 89-838.

Court of Criminal Appeals of Alabama.

Sept. 20, 1991.

H. Thomas Heflin, Jr., Tuscumbia, and Gene M. Hamby, Sheffield, for appellant.

James H. Evans, Atty. Gen., and J. Thomas Leverette and Sandra J. Stewart, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

John Forrest Parker, the appellant, was indicted for capital murder for pecuniary gain in violation of Ala.Code 1975, § 13A-5-40(a)(7). The jury found him "guilty of the offense of capital murder" and, by a vote of ten to two, recommended that he be sentenced to life imprisonment without parole. The trial judge overrode the jury's recommendation and sentenced Parker to death by electrocution. This appeal is from that conviction and sentence.

I.

The appellant argues that the prosecutor used his peremptory strikes in a racially discriminatory manner 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).

During the voir dire of the venire, the prosecutor challenged a venire member for cause and the following occurred:

"MR. HEFLIN [defense counsel]: For the record I would object that under Witherspoon [v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) ], and also under my client's right to the 6th, 8th and 14th Amendments and also under--that historically that on race that so many black people have been executed that excluding blacks that had that feeling [against the death penalty] would be depriving my client of the right to a jury of his peers.

"MR. ALVERSON [district attorney]: Judge, if he's trying to raise a Batson issue there, I don't think it applies in this case.

"THE COURT: Let the record show that the defendant is white and the victim is white or the alleged victim is white in this case. I'm going to overrule the objection and the challenge for cause is granted and Mr. Hogan is stricken."

R. 732-33.

On another occasion when the prosecutor challenged a venire member for cause, defense counsel made the following objection:

"To the 6th, 8th and 14th Amendments of the United States Constitution we would object to him and the historical nature of race and the imposition of the death penalty that excluding someone of the black race based on their beliefs on the death penalty prohibits my client from getting a fair trial from an impartial jury."

R. 760.

The jury was struck after extensive voir dire, and defense counsel made no Batson objection. At no time during the trial did defense counsel make any objection to the prosecutor's use of his peremptory strikes. Neither the prosecutor's use of his challenges for cause nor his peremptory strikes were made a ground of the motion for new trial.

On appeal, the appellant argues that the prosecutor used peremptory strikes to remove eight of the nine black members of the venire. This argument is not supported by the record on appeal.

In Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), the United States Supreme Court rejected the claim that "death qualified" juries under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), violate a defendant's right to have guilt or innocence determined by an impartial jury selected from a fair cross-section of the community. The exclusion of a cognizable group by the exercise of peremptory challenges is not a violation of the Sixth Amendment. Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990).

However, under both federal and state constitutional law, a white defendant has standing to challenge the prosecutor's allegedly racially motivated use of peremptory challenges. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Ex parte Bankhead, 585 So.2d 112 (Ala.1991); Ex parte Bird and Warner, [Ms. 89-1061 and 89-1062, June 14, 1991], 1991 WL 114762 (Ala.1991). ^*

In Bankhead, supra, the prosecutor used eight of his ten peremptory strikes to remove blacks from the venire. Even though two blacks served on the jury and despite the fact that no Batson objection was raised at trial, the Alabama Supreme Court noticed the matter under the "plain error doctrine" and remanded that case with directions that "[i]f the prosecution cannot provide racially neutral reasons for the use of peremptory challenges against black venire members, then Bankhead must receive a new trial." Bankhead, 585 So.2d at 117.

Under Bankhead, this Court has no alternative but to remand this case for an evidentiary hearing. See Ex parte Owen, 586 So.2d 963 (Ala.1991); Pierce v. State, 586 So.2d 1005 (Ala.Cr.App.1991); Walker v. State, 586 So.2d 49 (Ala.Cr.App.1991). Therefore, this cause is remanded to the trial court with directions that an evidentiary hearing be held at which the prosecution shall be required to give racially neutral reasons for the use of peremptory challenges against black venire members. If the prosecution cannot provide a racially neutral reason for every black venire member it struck, the trial judge must grant the appellant a new trial. In determining whether the reasons given by the prosecution are racially neutral, we direct the trial court's attention to Ex parte Bird and Warner, --- So.2d ----. A transcript of the hearing and written findings by the trial judge shall be filed in this Court no later than 90 days after the date of this opinion.

The appellant also argues that the prosecutor used 22 of his peremptory strikes to improperly remove women from the venire. There was no objection made in the circuit court at any time to the alleged gender bias of the prosecution. While I adhere to my position that gender discrimination is prohibited under state law, that argument has been explicitly rejected by the other members of this Court, see Daniels v. State, 581 So.2d 536, 539 (Ala.Cr.App.1990), cert. denied, 581 So.2d 541 (Ala.1991), and Dysart v. State, 581 So.2d 541, 542-43 (Ala.Cr.App.1990), cert. denied, 581 So.2d 545 (Ala.1991), and apparently by a majority of the members of the Alabama Supreme Court, see Ex parte Dysart, 581 So.2d 545 (Ala.1991).

II.

The trial judge did not abuse her discretion in denying the appellant the unlimited right to question each venire member separately and individually.

"In Brown v. State, [571 So.2d 345, 349 (Ala.Cr.App.), cert. quashed, 571 So.2d 353 (Ala.1990), remanded, 501 U.S. 1201, 111 S.Ct. 2791, 115 L.Ed.2d 966 (1991), on return to remand, 586 So.2d 991 (Ala.Cr.App.1991) ], this Court thoroughly examined this issue and recognized that the general rule is that 'the decision whether to voir dire prospective jurors individually or collectively is within the sound discretion of the trial court.' However, this Court held that where the defendant demonstrates that the nature of the pretrial publicity raises a significant possibility of prejudice, and a veniremember acknowledges some exposure to that publicity, due process may require individual examination of each veniremember who has been exposed to the pretrial publicity about the extent of their knowledge of the case and may require an independent determination by the trial judge with regard to each veniremember as to whether the member's knowledge had destroyed his or her ability to be fair and impartial."

Kuenzel v. State, 577 So.2d 474, 484 (Ala.Cr.App.1990), affirmed, 577 So.2d 531 (Ala.1991). In Brown, this Court held that the trial judge abused his discretion by not permitting individual voir dire under the circumstances of that particular case. This Court adheres to the principle that even in a death case, "[a]s a general rule, the decision whether to voir dire prospective jurors individually or collectively is within the sound discretion of the trial court." Brown, 571 So.2d at 349. See also Henderson v. State, 583 So.2d 276 (Ala.Cr.App.1990); Kuenzel v. State, 577 So.2d at 484. Furthermore, in Mu'Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991), the United States Supreme Court held that a defendant has no Sixth or Fourteenth Amendment right under the Constitution of the United States to question the prospective jurors about the specific contents of news reports to which they had been exposed.

Following the guidelines this Court set forth in Brown, we find that under the circumstances of this case, the trial judge did not abuse her discretion in either refusing to permit unlimited individual voir dire of each member of the jury venire or in refusing to permit defense counsel to question the venire members about the specific content of the media reports to which they had been exposed.

First, we find that the pretrial publicity in this case, although quite substantial, was not as extensive or as prejudicial as that present in Brown. The murder in this case occurred on March 18, 1988. Three people were involved in the commission of that murder--Billy Gray Williams, Kenneth Eugene Smith, and the appellant. These three individuals were allegedly hired by the victim's husband, Charles Sennett, a minister of the Church of Christ, to kill his wife, Elizabeth Dorlene Sennett. Mr. Sennett committed suicide on March 25, 1988, seven days after the murder.

In March and April 1988, there was extensive media coverage of the crime. The coverage continued to a lesser degree in May, June, and August. Williams was tried in January 1989 and was sentenced in February 1989. The media also covered the removal of Smith's trial to Jefferson County in March 1989. The appellant's trial began on May 30, 1989.

Although the crime in this case was horrible, it was not as sensational or lurid as that in Brown, which involved the brutal stabbing deaths of a mother and her ten-year-old daughter. At the time of the crime, Brown was on parole from a conviction of assault of his landlord. That assault had occurred while Brown was on parole from a conviction for having murdered his aunt, his grandmother, and his great-grandmother when he was 14...