Powell v. State, 3 Div. 755

• Decision Date: 10 November 1988
• Docket Number: 3 Div. 755
• Citation: 548 So.2d 590
• Parties: Timothy POWELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 590

548 So.2d 590

Timothy POWELL v. STATE.

3 Div. 755.

Court of Criminal Appeals of Alabama.

Nov. 10, 1988.

Rehearing Denied Dec. 30, 1988.

Certiorari Denied Feb. 24, 1989

Alabama Supreme Court 88-435.

William R. Blanchard and Rick A. Williams, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and J. Thomas Leverette and William D. Little, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

Timothy Powell was convicted of both counts of an indictment charging him with a capital offense involving the robbery and murder of Esther Herchenroeder, Ala.Code 1975, § 13A-5-40(a)(2), and a capital offense involving the murder of Esther Herchenroeder during a burglary, § 13A-5-40(a)(4). Sentence was fixed at death. Powell raises seven issues on this appeal from that conviction. Because one of those issues, the prosecutor's striking of black jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), has merit and necessitates a reversal and remand for new trial, we shall address the only remaining issue likely to recur upon a retrial, the legality of Powell's arrest.

I

Powell, a black man, was tried by an all-white jury following the prosecution's use of 13 out of its 16 peremptory challenges to eliminate black potential jurors. Defense counsel timely moved to quash the jury panel based on the State's alleged discriminatory use of its peremptory challenges, in violation of Batson v. Kentucky, supra, and Ex parte Branch, 526 So.2d 609 (Ala.1987). Apparently finding that the defense had established a prima facie case of racial discrimination, the trial court required the prosecution to state the reasons for its strikes, and the following reasons were given:

1. Mrs. Kennebrew--expressed some reservations about imposing the death penalty; some dissatisfaction with the police department's handling of a burglary investigation involving her; stated that she would "have to be satisfied" with the police department.

2. Mrs. Williams--expressed reservations about imposing the death penalty; stated that she had an uncle who was falsely prosecuted and, in fact, served 27 years until he was pardoned or released; testified for her grandson in a rape trial; and had a brother who was either the victim or the defendant in a murder case.

3. Mr. Byrd--had been charged with DUI in 1972; carnal knowledge, sexual assault, and drawing a weapon in 1974; and speeding in 1984.

4. Mr. Jackson--knew a relative of the defendant and expressed concern about having to face that person as a participant in this trial; his nephew was a defendant in a burglary case; and he was a teacher. In the prosecutor's experience with four other capital cases, teachers were more forgiving and less prone to impose the death penalty.

5. Mr. Nearer--had been prosecuted for concealing identity, public nudeness, and possession of marijuana.

6. Mrs. Hammond--expressed some dissatisfaction with the police department's handling of a theft she reported; had three running-a-red-light and two speeding charges within the last 2 1/2 years; was 25 years old. In the prosecutor's experience, young people were less likely to support the death penalty, and the defendant in this case was young (23 years old).

7. Mr. Hall--was young (22) and single; might identify with the defendant.

8. Mr. Grisham--was young and single; smiled at the defendant.

9. Mr. McCombs--had a family member who had been charged with a crime.

10. Mrs. McGhee--young (24) and single; looked away from the prosecutors when introducing herself.

11. Mr. Sellers Williams--young (26) and single; had two traffic violations (improper turn and improper tag) within the last year and a half.

12. Mrs. Urghart--30 years old; two traffic violations (improper turn and running a red light) within the last 10 years.

13. Mr. Joseph Williams--retired school principal married to a retired teacher; had a recent speeding charge.

The trial court found all of the reasons racially neutral and overruled the motion to quash. On motion for new trial, the defense contended that certain of the State's reasons, specifically those relating to age and minor traffic offenses, were a sham or "ruse" to eliminate all blacks from the jury. In support of this motion, the defense introduced evidence that the ages of the 12 white jurors who tried the case were, at the time of trial: 51, 38, 37, 36, 33, 30, 30, 28, 26, 24, 24, and 23.

The trial court made funds available to the defense to secure the driving records of the 12 white jurors who did serve, and those records reveal the following:

1. Seven of the 12 white jurors had received speeding tickets within five years of trial. Most of these tickets were within two years of trial.

2. One of those 7 had received six speeding tickets and one ticket for improper lane changing within the last five years. This juror was 28 years old.

3. Another one of those 7 had received three speeding tickets, one ticket for improper passing, and one ticket for failing to stop at a stop sign within four years of trial. This juror was 23 years old.

The State submitted an affidavit indicating that at the time of striking the jury it did not have knowledge of the driving records of 4 of the white jurors who ultimately served. Three of those 4 had no records for speeding and 2 had been involved in motor vehicle accidents. The State did not claim to have been unaware of the driving records of the 4 other white jurors who served and who had traffic offenses.

The trial court's determination that the State's striking of black venirepersons Mrs. Kennebrew, Mrs. Williams, Mr. Byrd, Mr. Jackson, Mr. Nearer, Mrs. Hammond, and Mr. McCombs (numbers 1-6 and 9 above), was racially neutral is not "clearly erroneous" and must be upheld. We have serious doubts about the determination as to Mr. Grisham and Mrs. McGhee (numbers 8 and 10 above), and we find "clearly erroneous" the ruling as to Mr. Hall, Mr. Sellers Williams, Mrs. Urqhart, and Mr. Joseph Williams.

In Ex parte Branch, our Supreme Court observed:

"Once the prosecutor has articulated a nondiscriminatory reason for challenging the black jurors, the other side can offer evidence showing that the reasons or explanations are merely a sham or pretext. [People v.] Wheeler, 22 Cal.3d at 282, 583 P.2d at 763-64, 148 Cal.Rptr. at 906 [1978]. Other than reasons that are obviously contrived, the following are illustrative of the types of evidence that can be used to show sham or pretext:

"...

"2. There was a lack of questioning to the challenged juror, or a lack of meaningful questions.

"3. Disparate treatment--persons with the same or similar characteristics as the challenged juror were not struck. Slappy [v. State] 503 So.2d at 354 [Fla.Dist.Ct.App.1987]; [People v.] Turner, 42 Cal.3d at 725, 726 P.2d at 110, 230 Cal.Rptr. at 664 [1986]; Wheeler, 22 Cal.3d at 282, 283 P.2d at 760, 148 Cal.Rptr. at 906.

"...

"6. '[A]n explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically,' Slappy, 503 So.2d at 355. For instance, an assumption that teachers as a class are too liberal, without any specific questions having been directed to the panel or the individual juror showing the potentially liberal nature of the challenged juror." 526 So.2d at 624.

In view of the fact that five members of the jury were in their twenties (the average age of the jury was only 31 years, 8 months) and seven members of the jury had had traffic offenses equally as serious as those of the black venirepersons who were struck by the State, we cannot escape the conclusion that the State engaged in the type of "disparate treatment" denounced in Branch. White "persons with the same or similar characteristics as the challenged [black] juror[s] were not struck." Branch, 526 So.2d at 624. See Acres v. State, 548 So.2d 459 (Ala.Cr.App.1987) (on return to remand) (validity of prosecutor's reasons for striking two black venirepersons because they had had traffic citations did not "stand up under close scrutiny" when record revealed that two white jurors who served on jury had similar traffic offenses). The State simply did not remove white persons for the same reasons given by the State for removing blacks. Compare Currin v. State, 535 So.2d 221 (Ala.Cr.App.1988) ("A reasonable conclusion ... is that [the prosecutor] applied the racially-neutral criteria of education, employment, and demeanor to all jurors, whether black, [or] white....") (quoting United States v. Allen, 666 F.Supp. 847 854 (E.D.Va.1987)). See generally State v. Antwine, 743 S.W.2d 51, 65 (Mo.), cert. denied, Antwine v. Missouri, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988), wherein the court found it highly relevant to consider "whether similarly situated white veniremen escaped the State's challenges."

"[I]t is possible that an attorney, although not intentionally discriminating, may try to find reasons other than race to challenge a black juror, when race may be his primary factor in deciding to strike the juror." Ex parte Branch, 526 So.2d at 624. The defense evidence adduced on motion for new trial, specifically the ages and driving records of the jury, convincingly established that race was the primary factor in striking venirepersons Mr. Hall, Mr. Sellers Williams, and Mrs. Urqhart, and that the State's articulated reasons for striking those persons were "contrived to avoid admitting acts of group discrimination." Id.

The trial court's failure to grant the motion for new trial was, therefore, in error. " '[A] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' Anderson [v. Bessemer City], 470 U.S. [564 at] 573, 105 S.Ct. [1504] at 1511, [1985] citing United States v. United States Gypsum, 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)." State v. Antwine, 743...