Robinson v. State
| Decision Date | 01 December 1989 |
| Docket Number | 4 Div. 232 |
| Citation | 560 So.2d 1130 |
| Parties | James Lynwood ROBINSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. Harvey Jones, Eufaula, for appellant.
Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.
James Lynwood Robinson was indicted for burglary in the third degree in violation of § 13A-7-7, Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment." The trial judge sentenced the appellant to twenty-five years in the State penitentiary as a habitual felony offender. Additionally, the trial judge fined the appellant $20,000.00 and ordered him to pay restitution in the amount of $1,246.30 to the Houston County Farmers Exchange and pay $100.00 to the Alabama Crime Victims Compensation Fund.
Between 5:00 p.m. on January 6, 1988, and 7:00 a.m. on January 7, 1988, the Houston County Farmers Exchange in Houston County, Alabama, was burglarized. The padlock on the front door was pried off. The building was entered and several knives, some clothes, and some change from the cash register and the candy machine were taken.
On January 12, 1988, this appellant was shot in the head. He was taken to Southeast Alabama Medical Center in Dothan, Alabama. A bullet had lodged against the temporal region of his skull. The bullet was removed at the hospital.
Later that night, the appellant was taken into custody by the Dothan, Alabama, Police Department on misdemeanor warrants. He was taken to the Dothan City Jail.
The next morning, January 13, 1988, Officer Ray Owen and Sgt. Robert Jenkins of the Dothan Police Department interviewed this appellant. During this interview, the officers obtained a taped confession from the appellant that he was the one who burglarized the Farmers Exchange. In his confession, the appellant stated that he pried the lock off of the front door of the Farmers Exchange and entered that building. He stated that he took two or three knives and some blue jeans from the store. The confession was transcribed from the tape and admitted at the trial of this appellant.
The appellant first contests the validity of the venire panel from which the ultimate petit jury was chosen and the ultimate petit jury itself.
As to the venire panel, this appellant moved to quash the panel on the grounds that it did not adequately represent a fair cross-section of the community in which this appellant was tried and convicted. As a result, this appellant claims that his U.S. Sixth Amendment rights were violated.
The venire panel in the case at bar was selected from a computer list of all licensed drivers in Houston County, Alabama. This court addressed the same system in Vaughn v. State, 485 So.2d 388 (Ala.Cr.App.1986); Lopez v. State, 415 So.2d 1204 (Ala.Cr.App.1982). In Vaughn, the court held that such a system complied with both the law of the State of Alabama and the Constitution of the United States. See U.S. Const. amend. VI; Ala.Code §§ 12-16-55 through -57, 12-16-145 (1975).
According to Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the appellant has the burden to prove that the venire panel of prospective jurors does not represent a fair cross-section of the community. The appellant must prove, inter alia, that the system which was used to choose the given panel systematically excludes "a substantial and identifiable segment of the total population of the community." Duren; Rutledge v. State, 482 So.2d 1250, 1253-54 (Ala.Cr.App.1983), rev'd on other grounds, 482 So.2d 1262 (Ala.1984).
While a system of selecting potential jurors which systematically excludes a given group or segment of the community violates a person's rights, it is incumbent on the appellant to prove this result. In the cause sub judice, the appellant's counsel at trial admitted that he did not know if the current system tended to exclude black people more than white people in Houston County, Alabama. (R. 7-8).
Therefore, we find that this appellant failed to make a showing, either at trial or now on appeal, which would indicate that selection of potential jurors from all licensed drivers in the county prejudiced his ability to obtain a fair trial.
The appellant also claims that the prosecutor, by striking two of three blacks from the venire, violated the mandates of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
The appellant in this cause is black. The petit jury which ultimately convicted him was composed of eleven white persons and one black person.
The district attorney stated that his office circulated the list of potential jurors to the surrounding law enforcement agencies in Houston County before the jury was selected. Sgt. Williams of the Houston County Sheriff's Department reviewed the list and returned it to the district attorney with several jurors marked as "bad" or "good" choices. The district attorney stated that both black veniremen whom he struck were marked as "bad" choices by Sgt. Williams, whom the district attorney believed to be black also.
The district attorney stated that other black veniremen on the master list were marked as "good" choices. It is not clear if the black juror who actually served on the petit jury was one of those so marked.
The district attorney further stated that he struck one of the black veniremen because he was tardy for two days when the circuit clerk called the roll. The other juror, according to the district attorney, knew someone by the name of Melvin Hill, the name of a person from whom some of the stolen property from the burglary was recovered.
When viewing "all relevant circumstances," we hold that the reasons enunciated by the prosecutor were here sufficiently race neutral. Ex parte Branch, 526 So.2d 609, 622 (Ala.1987). 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 appellant next contends that the trial court committed reversible error when it refused to grant his motion for continuance.
The appellant filed a motion for continuance on June 1, 1988. The appellant contended in his motion and at trial that he was confined from January 12, 1988, until the time of trial, June 7, 1988, because of an excessive bond ($10,000.00), which he was unable to pay because of his indigency. The appellant alleged that, at the time of the burglary, January 6 or 7, 1988, he was in Tallahassee, Florida. He claimed that there were several people in Tallahassee who could substantiate his alibi.
The appellant's counsel argued that his ability to find these witnesses was hindered, since most of the witnesses were in a black neighborhood and he was white. The appellant stated that his father tried to bring him a Tallahassee, Florida, telephone book but that the personnel at the Dothan City Jail refused to let him have it.
The following is a list of those whom this appellant claims could substantiate his story: (1) Larry Hollis, a friend, who was stationed at Fort Rucker, Alabama, but who was "absent without leave" (AWOL) and whom the appellant had been unable to locate; (2) the manager at a Kentucky Fried Chicken in Tallahassee, name and address unknown, with whom the appellant spoke around 6:00 p.m. on January 5, 1988; (3) a black female, name and address unknown, who is an assistant manager at Krispy Kreme Doughnuts in Tallahassee and with whom he spoke on January 5 or 6, 1988, around 2:00 a.m.; (4) some young ladies who worked at McDonald's in Tallahassee, Florida, who the appellant claims saw him there on January 5, 1988; (5) a white lady, who was a secretary at the Greyhound Bus Station in Tallahassee and who the appellant claims saw him there on January 7 or 8, 1988; (6) a female clerk at the Rexall Drug Store in Marianna, Florida, where the bus made a stop in route to Dothan, Alabama; (7) Roger Dale Fulford of the Silver Fox Cab Company in Dothan, Alabama, who picked up the appellant from the bus station and took him to Cedar Heights in Dothan; (8) a prostitute named Peaches with whom the appellant stayed in the Magnolia or Camelia Hotel in Tallahassee; (9) employees at the hotel who could testify that he was there on January 7 or 8, 1988; (10) some people at a liquor store in Tallahassee who would testify that he was there on January 5 or 6, 1988; and (11) Waymon Peterson, his brother-in-law, who was at the apartment in Dothan and could testify as to when he returned from Tallahassee.
Only Roger Dale Fulford testified on behalf of the appellant. Fulford stated that he picked up this appellant from the Greyhound Bus Station in Dothan, Alabama. He stated that the appellant did not have any luggage. He took the appellant to Cedar Heights in Dothan, Alabama. He did not remember the date, only that it was in January of 1988.
When evidence or a witness is absent, a trial court should grant a continuance if the appellant shows the following:
"(1) the expected evidence [is] material and competent; (2) there [is] a probability that the evidence will be forthcoming if the case is continued; and (3) the moving party [has] exercised due diligence to secure the evidence."
Ex parte Saranthus, 501 So.2d 1256, 1257 (Ala.1986). (Emphasis added.)
The decision of whether to grant a continuance is in the sound discretion of the trial judge. His decision will not be overturned absent a clear showing of abuse of discretion, since the trial judge is in a better position than an appellate court to make such a determination. Saranthus; Owens v. State, 460 So.2d 305, 313 (Ala.Cr.App.1984).
Of the eleven witnesses that the appellant claimed could substantiate his alibi, he only knew three...
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