Sharp v. State

• Decision Date: 05 March 2010
• Docket Number: CR–05–2371.
• Citation: 151 So.3d 342
• Parties: Jason Michael SHARP v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

151 So.3d 342

Jason Michael SHARP

v.STATE of Alabama.

CR–05–2371.

Court of Criminal Appeals of Alabama.

March 5, 2010.

Rehearing Denied Aug. 10, 2012.

On Remand from the Alabama Supreme Court and on Application for Rehearing on Return to Second Remand June 14, 2013.

Certiorari Denied Aug. 23, 2013

Cecilia A. Pope, Huntsville; Brian David Clark, Huntsville; Bryan A. Stevenson and Randall Susskind, Montgomery; and Jacqueline Dina Jones, New York, New York, for appellant.

Troy King and Luther Strange, attys. gen., Tina M. Coker, asst. atty. gen. (withdrew 6/8/2010); and Kevin Wayne Blackburn, asst. atty. gen., for appellee.

On Remand from the Alabama Supreme Court

KELLUM, Judge.¹

The appellant, Jason Michael Sharp, was convicted of murder made capital because it was committed during the course of a rape or an attempted rape. See § 13A–5–40(a)(3), Ala.Code 1975. This Court remanded the case for the trial court to amend its sentencing order to include written findings as to the aggravating and mitigating circumstances. On return to remand, this Court affirmed Sharp's conviction and death sentence. See Sharp v. State, 151 So.3d 308 (Ala.Crim.App.2008).

Sharp petitioned the Alabama Supreme Court for certiorari review, arguing, among other things, that the State used its peremptory challenges to remove African–Americans from the jury venire, thus violating Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, Sharp argued that plain error occurred during the jury selection because the State failed to strike prospective white jurors for the same reasons it struck prospective African–American jurors. The Supreme Court granted certiorari review and on December 4, 2009, reversed this Court's judgment, holding:

“The record supports Sharp's contention that the State struck some African–American jurors whose responses to the questions posed in the jury questionnaires were similar to the responses of white jurors, although it did not strike the white jurors. Therefore, the record creates an inference of discrimination on the part of the State. Although the State may have race-neutral and nondiscriminatory reasons for its actions, it was never required to articulate them on the record, and the record on its face is not adequate for us to determine whether a Batson violation occurred. Therefore, although we realize that the Court of Criminal Appeals did not have before it and was not required to review the juror questionnaires, we conclude that it is necessary to reverse its judgment and remand this case to the Court of Criminal Appeals for it to order further proceedings consistent with this opinion. See Floyd v. State, [Ms. CR–05–0935, September 28, 2007] ––– So.3d –––– (Ala.Crim.App.2007); Lewis v. State, [24 So.3d 480 (Ala.Crim.App.2006) (opinion on return to remand) ]. If the State cannot provide racially neutral reasons for the use of its peremptory challenges against African–American veniremembers, Sharp must receive a new trial. Ex parte Bankhead, 585 So.2d 112 (Ala.1991) ; Ex parte Jackson, 516 So.2d 768 (Ala.1986).”

Ex parte Sharp, 151 So.3d 329, 342 (Ala.2009).

In accordance with the Supreme Court's holding, we remand this case to the circuit court for that court to determine whether the State's reasons for using its peremptory challenges against African–American veniremembers were race neutral. If the circuit court, following a hearing, determines that Sharp is entitled to relief, it is authorized to grant such relief as it deems necessary.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the circuit court, together with the circuit court's written findings of fact.

REMANDED WITH INSTRUCTIONS.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.

On Remand from the Alabama Supreme Court and on Application for Rehearing on Return to Second Remand

PER CURIAM.

The opinion issued on March 23, 2012, on application for rehearing on return to second remand,¹ is withdrawn, and the following opinion is substituted therefor.

Jason Michael Sharp was convicted of capital murder because it was committed during the course of a rape or an attempted rape, see § 13A–5–40(a)(3), Ala.Code 1975. By a vote of 11 to 1, the jury recommended that Sharp be sentenced to death. The trial court accepted the jury's recommendation and sentenced Sharp to death.

On appeal, this Court remanded this case for the trial court to amend its sentencing order. Sharp v. State, 151 So.3d 308 (Ala.Crim.App.2008) ( “Sharp I ”). On return to remand, we affirmed Sharp's conviction and sentence. Sharp v. State, 151 So.3d 308, 327 (Ala.Crim.App.2008) (“Sharp II ”). The Alabama Supreme Court, after granting certiorari review of Sharp's petition, reversed this Court's judgment. The Court, applying the plain-error standard of review, held that “the record creates an inference of discrimination on the part of the State” in its use of its peremptory strikes. Ex parte Sharp, 151 So.3d 329, 342 (Ala.2009). See also Rule 45A, Ala. R.App. P. Because the State had not been required to articulate on the record its reasons for the use of its peremptory strikes and because the record before the Supreme Court was not adequate for that Court to determine whether a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), had occurred, the Court remanded the case for this Court to order further proceedings. Ex parte Sharp, 151 So.3d at 342. This Court then remanded the case for the trial court to conduct a Batson hearing at which the State was to provide its reasons for its peremptory strikes against African–American veniremembers and the trial court was to determine whether the prosecution had used its strikes in a racially discriminatory manner. See Sharp v. State, 151 So.3d 342 (Ala.Crim.App.2010) (“Sharp III ”).

On remand, the trial court complied with our instructions and, on April 27, 2010, conducted a Batson hearing. During that hearing, the State provided its reasons for striking African–American veniremembers. The trial court allowed Sharp to file a written response to the prosecution's reasons for striking African–American veniremembers. In his response, Sharp argued that the State's reasons for striking African–American veniremembers were pretextual. Thereafter, the State filed a written reply to Sharp's response. On July 16, 2010, the trial court entered an order finding that the prosecution had offered race-neutral reasons for its peremptory strikes against African–American veniremembers and that those reasons were not pretextual. The trial court found further that the State therefore had not violated Batson in the exercise of its peremptory strikes. This Court affirmed. Sharp v. State, (Ala.Crim.App.2010) (opinion on application for rehearing and return to second remand) (“Sharp IV ”).

The Alabama Supreme Court, in an order dated October 18, 2012, summarily vacated our judgment in Sharp IV and remanded the case “with instructions that [the Court of Criminal Appeals] allow the parties to brief the issues raised by the trial court's Batson order and that it then address those issues by further opinion.” (No. 1111489). In compliance with the Supreme Court's instructions, we ordered briefing on the issues raised by the trial court's Batson order. The parties completed briefing on December 17, 2012. We now have again reviewed the trial court's Batson order, and we again affirm.²

The venire in Sharp's case consisted of 80 potential jurors. The trial court excused nine of the veniremembers for cause. Of the remaining jury panel of 71 members, 14 were African–American and 57 were Caucasian. The prosecution struck 30 potential jurors, and the defense struck 29 potential jurors, with each party's last strike serving as an alternate juror. The State used 11 of its 30 strikes to remove African–American veniremembers, removing all but 3 African–Americans from the venire. The defense struck two African–American veniremembers. One African–American sat on Sharp's jury.³

At the Batson hearing, the State articulated its reasons for striking the 11 African–American veniremembers.⁴ Regarding Juror no. 55, the State provided as follows:

“[T]he State would then start with Juror Number 55. And the State would put forth as the reasons that Juror Number 55 was struck by the State, first and foremost, that the juror was opposed to the death penalty. And that was evidenced in the juror's questionnaire, specifically Question Number 53, and then in that the juror had responded that they would automatically vote against the death penalty. Also in 53 the juror wrote opposed with respect to the death penalty.

“And then in the general voir dire of the panel, the juror expressed opposition to the death penalty. And in individual voir dire, the juror said that she could only impose the death penalty if she had to.

“Further, the prosecution noted that in the juror's work that she dealt extensively with victims of abuse in her work and that she was a witness in many cases. She was in, specifically—

“Do you have her questionnaire?

“She was a social service case worker, Judge. And that was of some concern to the State in that case, as I have noted. She had been a witness in many cases because of her work.

“Juror further acknowledged that she knew trial counsel....

“And then later of lesser importance to the State was the fact that she knew Your Honor in the case.

“We also noted in her questionnaire that her son had been a victim of an attempted murder case and that there had never been any conviction or prosecution in that attempted murder case.

“And, Judge, those are basically the reasons that the State struck Juror Number 55.”

(Record on Return to Remand (“RTR”), R. 5–6.)

The State gave the following reasons for striking Juror no. 37:

“[T]he

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