Rogers v. State

• Decision Date: 28 September 2001
• Citation: 819 So.2d 643
• Parties: Leon Devon ROGERS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

819 So.2d 643

Leon Devon ROGERS v. STATE of Alabama.

CR-99-1834.

Court of Criminal Appeals of Alabama.

September 28, 2001.

Rehearing Denied November 21, 2001.

Glenn L. Davidson, Mobile, for appellant.

Bill Pryor, atty. gen., and Sandra J. Stewart, asst. atty. gen., for appellee.

SHAW, Judge.

Leon Devon Rogers was convicted of two counts of murder and one count of attempted murder. See §§ 13A-6-2 and 13A-4-2, Ala.Code 1975. He was sentenced to life imprisonment for each conviction; the sentences were to run concurrently.

The evidence adduced at trial indicated the following. On February 4, 1999, Rogers and his brother, Rudolph Rogers (hereinafter "Rudolph"), attended a Mardi Gras parade in downtown Mobile. As the parade drew to a close, Rudolph got into a fight with Angelo Gordon. Michael Davis, Carlos Taylor, and several other people joined in the fight. During the fight, Rogers shot and killed Gordon and Davis, and he shot and injured Taylor. The testimony was conflicting as to who started the fight. Taylor testified that Rudolph started the fight when he and three other men attacked Gordon. Gabrielle White, a witness to the incident, also testified that Rudolph started the fight. However, Tameka Brooks, another witness, testified that Rudolph and Gordon just "walked into each other ... and started fighting." (R. 155.) Taylor testified that during the fight he ended up entangled with Rudolph and that while he was trying to disengage himself from Rudolph, Rogers approached, pointed a pistol at him, said "Nigger, get off my brother," and fired. (R. 117.) Taylor was shot in the arm. White testified that just before Rogers fired, she heard him tell Rudolph to move out of the way.

Two shell casings and one bullet were recovered at the scene; both were from a .40-caliber pistol. The State presented evidence that Rogers had purchased a .40-caliber pistol on August 27, 1998. The State also presented evidence that in January 1998, approximately 13 months before the incident out of which the charges at issue here arose, Gordon had shot and seriously wounded Rudolph. At the time of the Mardi Gras incident, Gordon was awaiting trial on a charge of assault in the first degree, relating to his shooting of Rudolph.

I.

Rogers contends that the trial court erred in denying his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion. (Issue II in Rogers's brief.)

The record reflects that the prosecutor used four of her eight peremptory strikes to remove four of five black venire-members. After Rogers's trial counsel entered a Batson objection alleging that the prosecutor's strikes were racially motivated, the trial court, without making a specific finding that Rogers had established a prima facie case of discrimination, requested that the prosecutor give her reasons for the strikes. Without objecting, the prosecutor offered explanations for the challenged strikes. In a Batson context, it is well settled that where, as in the present case, the trial court does not make an express finding that a prima facie case of discrimination has been established but nonetheless requires the challenged party to explain its peremptory strikes, the appellate court will presume that the trial court found a prima facie case and will evaluate the explanations offered by the challenged party. See, e.g., Huntley v. State, 627 So.2d 1013, 1016 (Ala.1992); and Williams v. State, 548 So.2d 501, 504 (Ala. Crim.App.1988), cert. denied, 489 U.S. 1028, 109 S.Ct. 1159, 103 L.Ed.2d 218 (1989).

The prosecutor gave the following reasons for her strikes against black veniremembers:

Juror nos. 16 and 18: "[B]ecause they were teachers."

Juror no. 23: "I struck her for two reasons. One, she said that her brother had been murdered at a McDonald's [fast-food restaurant], and then she said that she could be fair and impartial in this case, and I have some reservations about that, as to whether or not she can truly be fair and impartial in this case based on her past.

"I also have some reservation about her. While Mr. Armstrong [Rogers's counsel] was asking questions, a detective informed me that she was looking and laughing over at the defendant at a time when it would not have been appropriate to be, you know, laughing at him or looking over there at him and making faces."

Juror no. 29: "We struck 29 because when I asked whether anybody, with the exception of a traffic offense, had ever been charged, arrested or convicted of an offense—he does have a prior criminal history. He also has an earring in his ear that I saw and I did not like, and that is why I struck him, because he did not answer me truthfully about that particular question."

(R. 56-57.)

On appeal, Rogers does not challenge the prosecutor's strikes against jurors no. 16, 18, or 29. However, Rogers contends that the prosecutor improperly struck juror no. 23 and that the prosecutor's stated reasons for doing so were pretextual.

"The party alleging racially discriminatory use of peremptory challenges bears the burden of establishing a prima facie case of discrimination. Ex parte Branch, 526 So.2d 609, 622 (Ala.1987). Once a prima facie case has been established, a presumption is created that the peremptory challenges were used to discriminate against black jurors. Id. at 623. Where the prosecutor is required to explain his peremptory strikes, he or she must offer `"a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory. However, this showing need not rise to the level of a challenge for cause."' McLeod v. State, 581 So.2d 1144, 1155 (Ala.Crim.App.1990), quoting Ex parte Branch, 526 So.2d at 623. (Emphasis in Branch; citation omitted.) Once the responding party has articulated a raceneutral reason or explanation for eliminating the challenged jurors, the moving party can offer evidence showing that the reason or explanation is merely a sham or pretext. Ex parte Branch, 526 So.2d at 624. When the trial court has followed this procedure, its determination will be overturned only if that determination is `clearly erroneous.' Id. at 625."

Burgess v. State, 811 So.2d 557, 572-573 (Ala.Cr.App.1998), aff'd in pertinent part, rev'd on other grounds, 811 So.2d 617 (Ala. 2000).

"Within the context of Batson, a `race-neutral' explanation `means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.... In evaluating the race-neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.... [E]valuation of the prosecutor's state of mind based on demeanor and credibility lies `peculiarly within the trial judges's province.'"

Allen v. State, 659 So.2d 135, 147 (Ala. Crim.App.1994) (emphasis added; citations omitted).

We find that the prosecutor's reasons for striking juror no. 23 were facially race-neutral. Although striking a veniremember based on his or her demeanor or body language in general is disfavored, more specific concerns regarding a veniremember's demeanor may be sufficient. Id.

"Demeanor, the way in which a person behaves or conducts himself, can include a number of characteristics, such as the desire not to serve as a juror, disinterest in the proceedings as a whole, inattentiveness exhibited by talking with others during voir dire, perceived hostility in answering prosecution questions, perceived favoritism toward the accused, or simply a general lack of respect for the proceedings which could be exhibited by such behavior as chewing gum, wearing sunglasses, hats, excessive jewelry, or inappropriate clothing while inside the courtroom."

Stephens v. State, 580 So.2d 11, 19 (Ala. Crim.App.1990), aff'd, 580 So.2d 26 (Ala.), cert. denied, 502 U.S. 859, 112 S.Ct. 176, 116 L.Ed.2d 138 (1991). The prosecutor stated that juror no. 23 was "looking and laughing" at the defendant during defense counsel's questioning of the venire. This type of behavior suggests a disinterest in the proceedings and/or a lack of respect for the process. See, e.g., Hart v. State, 612 So.2d 520 (Ala.Crim.App.1992), aff'd, 612 So.2d 536 (Ala.), cert. denied, 508 U.S. 953, 113 S.Ct. 2450, 124 L.Ed.2d 666 (1993) (explanation that veniremember was inattentive and hostile deemed to be race neutral); Mathews v. State, 534 So.2d 1129, 1130 (Ala.Crim.App.1988) (explanation that juror "didn't seem very attentive" upheld against a Batson challenge); Nesbitt v. State, 531 So.2d 37 (Ala.Crim.App.1987) (explanation that juror "appeared to be inattentive" held to be a neutral reason); and Smith v. State, 531 So.2d 1245, 1248 (Ala.Crim.App.1987) (explanation that juror "appeared to be asleep or inattentive" held to be a neutral reason). Likewise, the prosecutor's reservations about the ability of juror no. 23 to be fair and impartial given the fact that her brother had been murdered a few years earlier was also a facially valid race-neutral reason for striking her. See, e.g., Demunn v. State, 627 So.2d 1005 (Ala.Crim.App.1991), aff'd, 627 So.2d 1010 (Ala.1992) ("The striking of venirepersons on the basis of bias is race-neutral.").

Because the prosecutor's proffered reasons for striking juror no. 23 were facially race-neutral, the burden then shifted to Rogers to show that the reasons were shams or pretextual. Rogers argues that the prosecutor's reasons were pretextual because, he says, neither reason is supported by the record. Although we agree that the demeanor of juror no. 23 is not reflected in the record, when the prosecutor stated that juror no. 23 was looking and laughing at Rogers during voir dire, Rogers did not object or disagree that...