Pollard v. State, 2 Div. 682

• Decision Date: 12 May 1989
• Docket Number: 2 Div. 682
• Citation: 549 So.2d 593
• Parties: Curley James POLLARD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 593

549 So.2d 593

Curley James POLLARD v. STATE.

2 Div. 682.

Court of Criminal Appeals of Alabama.

May 12, 1989.

Rehearing Denied June 16, 1989.

Certiorari Denied Aug. 25, 1989

Alabama Supreme Court 88-1224.

John T. Kirk, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Curley James Pollard was indicted on two counts of vehicular homicide and one count of murder for the death of Richard Lyle Montgomery. He was convicted of manslaughter and sentenced to ten years in prison.

The record reveals the following: Randolph Baldwin of Discount Tire Center observed the incident while standing outside his place of business on June 6, 1986, at approximately 2:45 p.m. He saw a large tractor-trailer rig traveling eastbound into Selma on U.S. Highway 80, which is also known as Highland Avenue. He testified that the rig started drifting into the westbound lanes and began to go totally out of control. He testified that the rig started to move into a jackknife position. He stated that, after the rig hit a curb, the landing gear separated from the trailer and the rig went back across all four lanes of traffic. The rig finally stopped in a service road area. The rig was in a jackknife position when it stopped. Baldwin testified that, when the truck started moving across the highway, he observed a motorcycle in the westbound lane. He saw the driver of the motorcycle start laying his bike down. He then saw the motorcycle run into some wheels of the tractor-trailer while the rig was still moving. He testified that the rig appeared to be bouncing the victim and the bike up and down. The rig carried the victim into the service road area and then he was thrown out. Baldwin testified that the appellant walked toward the sales floor of the tire center after the incident. Baldwin smelled a strong odor of alcohol on the appellant's breath. He stated that, based on the appellant's walk, eyes and speech, he was of the opinion that the appellant was under the influence of alcohol. He further testified that the speed limit for U.S. Highway 80 was 40 mph and estimated the speed of the appellant's truck to be between 50 and 55 mph.

Edward Moon was standing outside the Discount Tire Center building when he observed the incident. He testified that U.S. Highway 80 has two eastbound and two westbound lanes. He stated that the rig went out of control and traveled across the eastbound lane into the westbound lane. He also observed the truck hit a curb and move into a jackknife position. He testified that the victim tried to lay his bike down and then started sliding under the tractor wheels. He estimated the rig's speed to be between 45 and 55 mph.

Richard Julian was standing in the third bay door of Discount Tire Center when he observed the incident. He testified that he saw the truck bang up on a curb and move into a jackknife position. He testified that the truck was moving erratically. He estimated the truck's speed between 40 and 45 mph. He stated that, after checking on the victim, he walked over to the truck. The appellant, Pollard, was reaching down in his seat and picking up a vodka bottle, a Coke bottle and a Gatorade bottle. He testified that Pollard asked him what he should do with the bottles and he told Pollard to throw them over a nearby fence. Julian smelled a strong odor of alcohol on the appellant. He further testified that Pollard "couldn't hold himself stable" (R. 357) and that, in his opinion, the appellant, Pollard, was under the influence of alcohol.

Bobby Spears testified that he observed the tractor-trailer rig traveling through the intersection of U.S. Highway 80 and Bell Road at approximately 60-65 mph a few minutes prior to the incident.

Sergeant Jerry Ward of the Selma Police Department responded to the accident call. He testified that he smelled the odor of alcohol coming from Pollard's breath and clothes. He also testified that the appellant's eyes were glazed and he had a slight instability when he walked. He arrested Pollard for DUI. The results of a breathalyzer test revealed that the appellant's blood alcohol content was .134. The victim died as a result of the injuries he sustained in this accident.

The appellant testified that he drank two ounces of vodka on the morning of the accident. He also testified that he drank a beer at approximately 11:30 a.m. He stated that the odor on his clothes came from a chemical called parathon which he spilled on himself while loading and unloading the truck earlier in the day. He testified that he was trying to stop his truck, and when he applied the brakes, the truck started to skid. He admitted to throwing a vodka bottle, a Coke bottle and a Gatorade bottle over a fence.

The appellant raises five issues on appeal.

I

The appellant first contends that the State violated the principles set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) because the district attorney used 14 of his 15 peremptory strikes to remove blacks from the jury panel. We have given this issue the same thorough review that all litigants are entitled to on appeal, despite the appellant's cursory argument in brief and his failure to articulate any specific reasons for his alleged claim of racial discrimination in the jury selection process. The record is unclear as to exactly how many black jurors served on the panel; however, it does appear that at least three black jurors and one black alternate served on the panel hearing this case.

The prosecutor articulated the following reasons for these peremptory strikes: (1) information from police department and psychological profile done by a Dr. Blanton, who assisted in striking the jury, indicated that the juror was very emotional; (2) juror was a truck driver and the defendant was a truck driver; (3) juror's cousin drove a tractor-trailer rig; (4) four traffic offenses, two accidents and defendant's attorney previously represented juror's father in an alcohol-related offense; (5) law enforcement recommended strike, unemployed, two prior convictions and would not understand complex issues; (6) truck driver, involved in three accidents and prior traffic offenses; (7) seventeen misdemeanors, ten traffic accidents and no driver's license; (8) juror's son drove an 18-wheeler; (9) nine traffic offenses; (10) former truck driver, seven accidents and four traffic offenses; (11) law enforcement recommended strike, five traffic accidents and one traffic offense; (12) unemployed and prior theft conviction; (13) law enforcement recommendation and juror involved in litigation years earlier against county and city concerning voting rights during which time prosecutor represented the City of Selma; and (14) very emotional and prior traffic offenses. The State also struck a white juror who had four traffic offenses, two accidents, and whose ex-wife was previously represented by the prosecutor in divorce and contempt proceedings. The prosecutor stated that the latter juror was considered very carefully. The record also indicates that none of the remaining black jurors possessed traffic or misdemeanor violations. The prosecutor also stated that the State had planned to strike a white juror who was very emotional and had been involved in four accidents, but this juror was struck by the appellant.

We find that the record sufficiently demonstrates that the State did not exercise its peremptory strikes in a racially discriminatory manner. "Any inferences arising from the use of peremptory strikes to remove blacks should be viewed together 'with other relevant circumstances' to determine whether purposeful discrimination has occurred." Currin v. State, 535 So.2d 221, 224 (Ala.Crim.App.1988) (citing Batson, 476 U.S. at 106, 106 S.Ct. at 1723). The record indicates that the State struck a non-black juror for substantially the same reasons as the black jurors were struck. Such evidence of neutrality may overcome the presumption of discrimination. Ex parte Branch, 526 So.2d 609 (Ala.1987); Ward v. State, 539 So.2d 407 (Ala.Crim.App.1988). This record also indicates that the jurors remaining on the panel had not been involved in traffic accidents or traffic offenses or had significantly fewer traffic offenses than the jurors struck by the State for that reason. The State also struck several jurors based on prior convictions. Strikes based on prior criminal convictions have been held to be race neutral. Ward; Bryant v. State, 516 So.2d 938 (Ala.Crim.App.1987). We also note that the reasons given for striking a juror are not required to rise to the level justifying a challenge for cause. See Ex parte Lynn, 543 So.2d 709 (Ala.1988).

The trial court's findings are to be given great deference on appeal. Batson, 476 U.S. at 98, 106 S.Ct. at 1723; Lynn. An appellate court may only reverse the trial court's findings if they are clearly erroneous. Branch; Lynn. We find that, based on the particular facts and circumstances of this case, the...