Raines v. State, 6 Div. 442

• Decision Date: 14 April 1987
• Docket Number: 6 Div. 442
• Citation: 515 So.2d 82
• Parties: Chastine Lee RAINES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 82

515 So.2d 82

Chastine Lee RAINES v. STATE.

6 Div. 442.

Court of Criminal Appeals of Alabama.

April 14, 1987.

On Return to Remand Sept. 8, 1987.

William M. Dawson and Arthur Parker, Birmingham, for appellant.

Charles A. Graddick and Don Siegelman, Attys. Gen., and Rivard Melson and William D. Little, Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

The appellant, Chastine Lee Raines, was indicted and convicted for the capital offense of robbery or attempt thereof when the victim is intentionally killed, as proscribed by § 13A-5-31(a)(2), Code of Alabama (Supp.1978) (repealed 1981). He was sentenced to death for the November 1980 crime. Raines had originally been convicted and sentenced to death in 1981, and this conviction and sentence were affirmed on direct appeal. Raines v. State, 429 So.2d 1104 (Ala.Cr.App.), aff'd, 429 So.2d 1111 (Ala.1982). However, Raines was accorded a new trial as a result of the granting of his writ of habeas corpus on October 3, 1984, by the United States District Court for the Northern District of Alabama. Raines v. Smith, No. CV 83-P-1080-S (N.D.Ala. Oct. 3, 1983).

By supplemental brief, Raines, who is black, alleges that, in exercising its peremptory jury strikes, the prosecution was motivated by racial bias, and that he is entitled to a new trial under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The victim was white. The record establishes that the prosecution used the first thirteen of its fourteen strikes to strike thirteen of the sixteen blacks on the venire. The prosecution's fourteenth strike was used to strike a white woman whose son had been represented by defense counsel on "apparently numerous cases, including a felony." Three blacks remained on the jury.

In response to Raines's contention, the attorney general urged us to find that it was not properly preserved for our review. The defendant should object to the composition of the jury prior to trial. Williams v. State, 342 So.2d 1328 (Ala.1977); DeLoach v. State, 361 So.2d 19 (Ala.Cr.App.1977), writ quashed, 361 So.2d 21 (Ala.1978). More particularly, the court in Brown v. State, [Ms. 1 Div. 215, January 13, 1987] (Ala.Cr.App.1987), and Swain v. State, 504 So.2d 347 (Ala.Cr.App.1986), held that an objection should be interposed before the jury is empanelled and sworn. In Brown, the court relied on United States v. Erwin, 793 F.2d 656, 667 (5th Cir.1986), wherein the federal court in observing that, "[t]he Court in Batson envisioned that a motion to strike would be made promptly, probably before the venire was dismissed," held that a motion to strike, entered one week after the jury had been selected and the venire had been dismissed, but before the jurors were empanelled, was untimely. In Swain, the court quoted the following from Williams v. State, 712 S.W.2d 835, 840 (Tex.Dist.Ct.App.1986): "In light of Batson, the proper time to raise such an objection was after the peremptory strikes had been made, but prior to the jury being sworn."

The attorney general correctly points out that the procedural scenario in the instant case does not fall within the neat guidelines set out above. Before defense counsel and the prosecutors exercised their strikes, the parties and the trial court retired to the court's chambers, where the following occurred:

"MR. DAWSON [Defense counsel]: Before we strike, there are a couple of things we would like to bring up.

"Previously Mr. Daniel, in the trial before this one [apparently Raines's first trial], objected to the prosecution striking black jurors in that this is a black defendant charged with the murder of a white person. We would certainly renew that objection and ask that the State be enjoined from striking solely because of race; and, secondly, ask in the event they choose to strike a predominant number of black jurors, that they show some reason for such strike because we submit that there is a practice of striking just blacks which has been followed, striking because of race, and this denies this defendant equal protection under the law.

"MR. DeCARLO [Prosecutor]: The Criminal Court of Appeals of Alabama, in a case called James Allen, III, and the Supreme Court of the State of Alabama, it says you can.

"THE COURT: Raines versus State is what I'm going by.

"MR. DeCARLO: According to my calculations, there are sixteen black persons out of the forty-two. After the State exercises their fourteen strikes.

"THE COURT: You've got it.

"MR. DAWSON: I would like reasons other than the race.

"MR. McDONALD [Prosecutor]: We aren't gonna--

"THE COURT: Overruled.

"MR. DAWSON: We except."

Immediately thereafter, the jury was selected, and then the following occurred:

"THE COURT: Did you go down your lists, gentlemen?

"MR. DAWSON: Yes, sir.

"THE COURT: Do you want me to go over it again?

"MR. McDONALD: Satisfied.

"THE COURT: Mr. Parker, Mr. Dawson?

"MR. DAWSON: Yes, sir.

"THE COURT: Did I make a mistake?

"MR. PARKER: No, sir.

"THE COURT: That is the correct jury as struck?

"MR. PARKER: Yes, sir."

Then, the venire was released, and after preliminary instructions, the jury was excused until the next morning. First thing the following day, defense counsel contended that the prosecution's jury selection established "a pattern and practice that [they] feel is discriminating," and counsel again requested that there be a showing of reasons or rationale for the prosecution's exercise of its strikes. In denying counsel's request, the trial court applied the principles of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Contrary to the attorney general's assertion, it was after this objection and ruling that the jury was sworn. (R. 165.)

Under the circumstances of this case, we do not agree with the attorney general's argument that Raines is procedurally foreclosed from raising the instant issue on appeal. While his first objections might not have been fashioned in the precisely correct form or interjected at the precisely correct time, they most assuredly alerted the trial court, with particularity, to the requested procedure and the ground of complaint; by them, the trial court made informed rulings. See Madison v. State, [Ms. 1 Div. 200, March 20, 1987] (Ala.Cr.App.1987) (wherein the court held that the equal protection issue was preserved where "[t]he appellant made his objections to the selection of the jury known to the trial court during the selection of the jury for trial and he requested [that] the court require the State to articulate some non-discriminatory reason for the exclusion of these blacks from the jury"). Moreover, Raines's first objections allowed the trial court and the prosecutors the opportunity to consider Raines's concern and take the appropriate course of action while it was still possible to do so. We further decline to adopt the attorney general's position that, by the defense counsel's announcing that they were satisfied, any complaint directed at the jury selection was waived. As we construe this acquiescence, within the context of the surrounding remarks, defense counsel were merely agreeing that the jurors put in the jury box were those actually selected by the parties...