Reese v. City of Dothan

• Decision Date: 13 August 1993
• Citation: 642 So.2d 511
• Parties: Annie Laura REESE v. CITY OF DOTHAN. CR 92-515.
• Court: Alabama Court of Criminal Appeals

Page 511

642 So.2d 511

Annie Laura REESE v. CITY OF DOTHAN.

CR 92-515.

Court of Criminal Appeals of Alabama.

Aug. 13, 1993.

Rehearing Denied Sept. 30, 1993.

Certiorari Denied Dec. 17, 1993

Alabama Supreme Court 1930094.

Phyllis Logsdon, Dothan, for appellant.

F. Lenton White, Dothan, for appellee.

BOWEN, Presiding Judge.

The appellant, Annie Laura Reese, pleaded guilty in Dothan Municipal Court to theft of property in the third degree, a violation of § 9-1 Code of Ordinances, City of Dothan, and Ala.Code 1975, § 13A-8-5. She was sentenced to 180 days in the city jail, to be suspended upon payment of $200 fine and court costs. She appealed to Houston Circuit Court for a trial de novo and was convicted by a jury. She was sentenced to 180 days' hard labor for the City of Dothan, to be suspended upon payment of a $250 fine and court costs, and upon the completion of 30 days' community service. She raises four issues on this direct appeal from the circuit court conviction.

I

The appellant, a black female, alleges that the State used two peremptory strikes in a racially discriminatory manner in violation Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). She argues that the prosecution struck veniremember numbers 93 and 115, two of the six black veniremembers, "for no apparent reason." R. 18.

With regard to this matter, the record reflects the following:

"MS. LOGSDON [defense counsel]: ... There are, ... six blacks on the jury [venire]. Two were struck by the State, I would repeat, for no apparent reason.

"THE COURT: Okay. And the names of the two blacks that were struck were?

"MS. LOGSDON: It's No. 93, which is B.J.W., and No. 115, which is C.H.

"THE COURT: Okay. Mr. H. and Mr. W.?

"MS. LOGSDON: Yes, sir.

"THE COURT: And does the City--

"MR. WHITE [assistant city attorney]: Prior arrest records on both jurors.

"THE COURT: I know Mr. H. spoke out that he had been arrested, and I'm not sure if I heard anything from Mr. W.

"MR. WHITE: You did not. I have independent information from the police department as regards that other juror.

"MS. LOGSDON: I would ask that he produce that independent information.

"MR. WHITE: I've got it right here, but I'm not going to do it right to your request.

"THE COURT: But you have verified that he has been arrested?

"MR. WHITE: Yes, sir.

"MS. LOGSDON: Has he been convicted?

"THE COURT: Do you know if he's been convicted?

"MR. WHITE: I don't know, Judge.

"MS. LOGSDON: I object to that for the reason I think the case law would point out that it's not adequate reason absent of showing proof [sic].

"THE COURT: The Court does understand that if you have it. Now, we can bring Mr. W. in and we can determine whether or not he's been arrested before.

"MR. WHITE: Judge, he's already been asked and he said no. I object to that.

"THE COURT: All right. I'm satisfied that Mr. White has objective reasons for striking Mr. W. and Mr. H. I'm going to deny the motion for mistrial based on the Batson motion." R. 18-19.

The appellant argues that it was reversible error for the trial court to assume that veniremember W. intentionally concealed his alleged arrest record. She maintains that the trial court should have ordered the prosecutor to produce the alleged documentation in his possession in order to verify W.'s arrest record or, in the alternative, should have required W. to answer additional voir dire questions regarding the matter. Appellant's brief at 11-12. We disagree.

The prosecutor gave a race-neutral reason for striking veniremember H. "A veniremember's involvement in or connection with criminal activity may serve as a race-neutral reason for the strike of that veniremember." Naismith v. State, 615 So.2d 1323, 1325 (Ala.Cr.App.1993).

Veniremember W. apparently did not respond when the venire was questioned on voir dire about having been arrested. However, the prosecutor said that he had "independent information from the police department" in his possession which "verified that [the veniremember had] been arrested."

This case is governed by Newman v. State, [Ms. 1920659, May 21, 1993] 1993 WL 167923 (Ala.1993), in which the Alabama Supreme Court "adopt[ed] Judge Bowen's dissent as the opinion of this Court." In pertinent part, that dissent stated:

"This court has previously upheld as race neutral the reasons given by the prosecutor for striking black members of the venire that were based upon information obtained from law enforcement officers. Where this information concerns the veniremember's involvement with crime, an explanation based upon this knowledge has been upheld.... Sistrunk v. State, 599 So.2d 87, 88-89 (Ala.Cr.App.1992) (strike of veniremember on basis of involvement in crime upheld where information was received from a member of the local police department); McLeod v. State, 581 So.2d 1144, 1154-55 (Ala.Cr.App.1990) (strike of veniremember on basis of involvement in crime upheld where 'a deputy sheriff had informed the district attorney's office that this person was "dealing in drugs, but he just hasn't been caught yet" '). In Robinson v. State, 560 So.2d 1130, 1133 (Ala.Cr.App.1989), this Court issued the following warning:

" 'We caution that a prosecutor's exercise of a peremptory challenge of a black venireperson based solely upon the recommendation of a law enforcement officer is highly suspect. However, the underlying basis for the recommendation may supply a racially neutral reason for the exercise of a peremptory challenge.'

"....

"The State is not 'required to produce all notes, reports, or other documents that it uses in exercising its peremptory challenges.' Ex parte Thomas, 601 So.2d 56, 58 (Ala.1992).

"....

"... An appellate court ' "may only reverse the trial judge's determination that the prosecution's peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous." ' (Emphasis added.)"

Newman v. State, [Ms. CR 91-961, November 25, 1992] 1992 WL 345602, * 6 (Ala.Cr.App.1993) (Bowen, P.J., dissenting).

"Neither Batson nor [Ex parte] Branch [526 So.2d 609 (Ala.1987) ] mandates that a defendant be given the opportunity to cross-examine jurors or other witnesses in order to establish that the State's reasons are a sham or a pretext.... A prosecutor may strike from mistake, as long as the assumptions involved are based on an honest belief and are racially neutral.... The appellant's contention that he has a right to present such testimony constitutes a substantial expansion of the findings in Batson and Branch, and we decline to do so.... The appellant's interpretation of Batson and Branch would require trial courts to conduct a trial within a trial and would needlessly lengthen trials.... Although defendants have the right to [rebut the government's reasons for exercising a peremptory strike] ... under Branch, we find that the right to rebuttal does not include the cross-examination of jurors or the examination of victims, police officers, or any other individual who may have supplied the prosecutor with information about a juror which the prosecutor believes in good faith to be true. Thus, the trial court did not err in refusing to allow such cross-examination."

Smith v. State, 590 So.2d 388, 390 (Ala.Cr.App.1991).

"[E]valuation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within the trial judges's province.' " Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991). Striking veniremember W. based on incorrect information concerning his arrest history, believed to be true by the prosecutor, has no relationship to the veniremember's race. Racially motivated strikes are the evil condemned in Batson.

The appellant's reliance on Ex parte Thomas, 601 So.2d 56, 58-59 (Ala.1992), is misplaced. The appellant relies on the following portion of Thomas:

"[A]t the heart of the reason this case must be reversed, is the trial court's accepting at face value the State's ostensibly facially neutral explanations for the use of its peremptory challenges ... based exclusively on information contained in the document to which only the state had access.... [I]f the State had engaged the veniremembers in [relevant] voir dire questions ..., or if the trial court had ordered the State to produce the document that it used in exercising its peremptory challenges, or if the trial court had examined the document in camera, we might be in a position to affirm, rather than ... to reverse."

Ex parte Thomas, 601 So.2d at 58-59.

In Thomas, a state investigator prepared a document detailing the driving records and any misdemeanor convictions of all of the veniremembers and the State relied on this information in exercising its peremptory challenges. The State used 8 of 11 peremptory challenges to remove blacks and gave as a reason for those strikes that the veniremembers either had been convicted of a misdemeanor or were among the veniremembers with the highest number of driving infractions. However, the State was evasive about whether any white veniremembers ultimately seated on the jury had a misdemeanor criminal history and/or a worse driving record than the black veniremembers who were struck. The appellant sought to have the investigator's list reviewed to prove that the State's alleged reliance on the list was only a disguise for its racial discrimination in the removal of black veniremembers. The Alabama Supreme Court held that the appellant's request to review the document detailing the histories of the veniremembers should have been granted so that the appellant could have "an opportunity to prove that the seemingly facially neutral explanations offered by the State were a sham or pretext." Thomas, 601 So.2d at 58. However, the Alabama Supreme Court specifically stated:

"We do not wish to be understood as holding that the trial court erred in this case by refusing to require the State to place into evidence the document that it used...