Rowe v. State
Decision Date | 13 August 1993 |
Parties | Joe Curtis ROWE v. STATE. CR 92-679. |
Court | Alabama Court of Criminal Appeals |
James R. Bowles, Tallahassee, for appellant.
James H. Evans, Atty. Gen., and Joseph G. L. Marston, Asst. Atty. Gen., for appellee.
Joe Curtis Rowe, the appellant, was convicted of the unlawful possession of cocaine and was sentenced to five years' imprisonment. On this direct appeal from that conviction, the appellant claims a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987).
The jury venire contained 31 members, 9 of whom were black. The prosecution used 7 of its 10 peremptory strikes against black veniremembers. Two members of the jury were black. The trial court stated that the black population in the county was "something like" 35% or 40%. R. 16.
Defense counsel, in making his Batson objection, requested the trial court to take "judicial notice of the fact that this seems to be a pattern of the District Attorney's Office in striking blacks from the jury." R. 4. The trial court responded that R. 4-5.
However, the trial court requested the prosecutor to state the reasons for his strikes of black veniremembers, and the prosecutor gave the following reasons:
1. Veniremember W.C. stated on voir dire that he "had family members that had been charged with drug crimes." He indicated that he was related to three individuals, whom the prosecutor identified by name, who were "people that we've prosecuted here in this county for the sale of marijuana and other drugs." R. 8.
2. Veniremember T.F. stated on voir dire that she was related to a person the district attorney had prosecuted for sale of cocaine. R. 9-10.
3. Veniremember W.B. said "[t]hat he knew the defendant." R. 11. When defense counsel stated that if the appellant was a drug dealer as the State alleged, then the State "would want people on the jury that knew him as opposed to people that didn't know him," the trial court responded that he thought that R. 12.
4. Veniremember M.G. "is the brother-in-law of the infamous L.H., and his wife works for L.H.." R. 12. In response, the trial court stated: "I know who L.H. is and know that that's a good strike." R. 12-13.
5. Veniremember E.H. R. 13.
6. Veniremember J.M. responded on voir dire in another case that he knew and was related to three people that the prosecutor had prosecuted, "one for sexual abuse in the second degree and two of them for three counts of insufficient worthless checks." R. 14-15.
7. Veniremember A.S. "was related to L.S.M. who [the prosecutor] believ[ed] last term [she] prosecuted for burglary and theft here in Dadeville." R. 15.
We find these reasons to be race-neutral.
Strikes based on the veniremember's relationship to or acquaintance with the defendant or with the defendant's witnesses have generally been upheld. E.g., Ex parte Lynn, 543 So.2d 709, 711 (Ala.1988) (, )cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989); Wilsher v. State, 611 So.2d 1175, 1182 (Ala.Cr.App.1992) ( ); Knight v. State, 622 So.2d 426 (Ala.Cr.App.1992) ( ); Williams v. State, [Ms. CR-89-633, March 27, 1992], (Ala.Cr.App.1992) (veniremember knew or was related to defense witness), affirmed, [Ms. 1911047, April 2, 1993], (Ala.1993); Strother v. State, 587 So.2d 1243, 1247 (Ala.Cr.App.1991) ( ); Bass v. State, 585 So.2d 225, 237 (Ala.Cr.App.1991) ( ); Davis v. State, 555 So.2d 309, 314 (Ala.Cr.App.1989) ( ). Jackson v. State, [Ms. 4 Div. 388, August 21, 1992], (Ala.Cr.App.1992), remanded on related grounds, [Ms. 1920376, June 11, 1993], (Ala.1993). See also Avery v. State, 545 So.2d 123, 126 (Ala.Cr.App.1988).
A veniremember's involvement in or connection with criminal activity may serve as a race-neutral reason for the strike of that veniremember. E.g., Wilsher v. State, 611 So.2d 1175, 1181 (Ala.Cr.App.1992) ( ); Whittlesey v. State, 586 So.2d 31, 32 (Ala.Cr.App.1991) ( ); Avery v. State, 545 So.2d 123, 126 (Ala.Cr.App.1988) ( ). "This connection with or suspicion of criminal activity includes the juror in question, as well as close relatives and friends of the juror." Heard v. State, 584 So.2d 556, 560 (Ala.Cr.App.1991). See also Newman v. State, [Ms. 1920659, May 21, 1993], (Ala.1993) (deputy sheriff told the prosecutor that "just about the whole family ... has been prosecuted by our staff"); Powell v. State, 548 So.2d 590, 592-93 (Ala.Cr.App.1988), aff'd, 548 So.2d 605 (Ala.1989) ( ); Williams v. State, 611 So.2d 1119, 1122 (Ala.Cr.App.1992) (same); Whitley v. State, 607 So.2d 354, 357 (Ala.Cr.App.1992) (same).
We find no error in the trial court's denial of the appellant's Batson objection.
Defense counsel used all nine of his peremptory strikes to remove white veniremembers. The trial court, on its own initiative, questioned defense counsel about this matter. After defense counsel admitted that he "took race into account in striking the jury because [his] client is black" (R. 5), the trial court concluded:
R. 6.
Although defense counsel stated that "race was only one factor that we considered among others" in striking the jury (R. 17), the trial court found to the contrary:
After determining that the State used its first, fourth, fifth, sixth, seventh, eighth, and ninth strikes against blacks, the trial court stated:
Although the trial court's failure to take action against the appellant after specifically finding that the appellant had engaged in racial discrimination in the striking of white veniremembers was error, that error was the equivalent of an invited error and does not constitute a ground for reversal.
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