Appeal from Madison Circuit Court
KELLUM, Judge.
Jason Michael Sharp was convicted of murder made capital because it was committed during the course of a rape or attempted rape in the first or second degree. See § 13A-5- 40(a)(3), Ala. Code 1975. By a vote of 11-1, the jury recommended that Sharp be sentenced to death for his capital-murder conviction. The trial court accepted the jury's recommendation and sentenced Sharp to death.
This Court initially remanded the case for the trial court to amend its sentencing order. Sharp v. State, [Ms. CR-05-2371, August 29, 2008]_So. 3d_(Ala. Crim. App. 2008). On return to remand, this Court affirmed Sharp's conviction and sentence. Sharp v. State, [Ms. CR-05-2371, December 19, 2008] ___ So. 3d ___, ___(Ala. Crim. App. 2008)(opinion on return to remand). The Alabama Supreme Court granted certiorari review and reversed this Court's judgment, holding that, under the plain-error standard of review, see Rule 45A, Ala. R. App. P., the record raised an inference that the State had used its peremptory strikes in a racially discriminatory manner and remanded the case for this Court to remand to the trial court to conduct a hearing pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), at which the State would be required to articulate the reasons for its strikes against African-American veniremembers. See Ex parte Sharp, [Ms. 1080959, December 4, 2009] ___ So. 3d ___ (Ala. 2009).
In accordance with the Supreme Court's instructions, we remanded this case for the trial court to conduct a Batson hearing and to determine whether the State had used its strikes in a racially discriminatory manner. See Sharp v. State, [Ms. CR-05-2371, March 5, 2010] _So. 3d _ (Ala. Crim. App. 2010) (opinion after remand from the Alabama Supreme Court).
The trial court complied with our instructions and conducted a Batson hearing on April 27, 2010. At that hearing, the State articulated its reasons for striking African-American veniremembers. The trial court permitted Sharp to file a written response to the State's asserted reasons, in which Sharp made an extensive argument that all the State's reasons for striking African-American veniremembers were pretextual. After that, the State filed a written reply to Sharp's response. The trial court issued an order on July 16, 2010, finding that the State's reasons for its peremptory strikes against African-American veniremembers were race-neutral and were not pretextual and, thus, that the State had not violated Batson in using its peremptory strikes. We reverse and remand.
The record indicates that the venire consisted of 80 potential jurors. Nine of those jurors were removed for cause. Of the remaining 71, from which the jury was struck, 14 were African-American and 57 were Caucasian. The State was afforded 30 peremptory strikes and the defense 29 peremptory strikes, with each party's last strike serving as an alternate juror. The State used 11 of its 30 strikes against African-Americans, removing all but 3 African-Americans from the venire. The defense struck two African-Americans. One African-American sat on Sharp's jury.
At the hearing on remand, the State provided the following reasons for striking the 11 African-Americans, which we address in the order in which the State addressed them. As to Juror 55, the State provided the following reasons:
"[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, Barry Abston.
"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 37:
"Judge, our next one would be Juror Number 37. And the reasons that we struck Juror Number 37, generally speaking, is he was opposed to the death penalty. On his questionnaire, on Question Number 53 that asked about personal, ethical, or moral beliefs against the death penalty that you'dautomatically vote against it. He left it blank. He did not answer that. And then it was his feelings on the death penalty were uncovered during the voir dire portion of the trial in that he said he had a religious or moral objection to the death penalty.
"And then also in individual voir dire he said that the Bible teaches that vengeance is the Lord's.
"Additionally in individual voir dire he said he would not be able to live with himself if he had anything to do with the defendant receiving the death penalty. That was the main reason that he was struck.
"And further there was his questionnaire there was just--there were so many questions that were left blank by this particular prospective juror, and included in those, I've already mentioned Question Number 53, as well as 54. He left blank Question 55. He left blank Question 56 having to do with should a defendant have effective assistance of counsel. Question 60 about whether the death penalty was used too often or not.
"We additionally noted his occupation, Judge, as being a custodian, and that was of some importance to us, besides the death penalty issues, in that as the Court is well aware that this was a circumstantial case that really the thrust of the State's evidence was DNA evidence, as the Court knows is somewhat sophisticated and technical evidence. So his sophistication socially or professionally was noted by the State.
"And those are the reasons that the State struck Juror Number 37."
(RTR, R. 8-10.)
As to Juror 65, the State gave the following reasons:
"Next would be Juror Number 65.
"Juror Number 65, Question 53 in his questionnaire, again having to do with the death penalty, he answered in the affirmative that he would automatically vote against the death penalty. Additionally in Question 54 when the question asked if you have some feelings against the death penalty which fall short of the previous question, this prospective juror wrote, 'Vengeance is mine saith the Lord, no man.' It says, 'believe life in prison instead.' That was Question 54.
"And then also in Question 62 he also answered in the affirmative that you would automatically vote for its imposition. And then in voir dire of the entire group, the general voir dire, he raised his hand as having a religious or moral objection to the death penalty.
"In individual voir dire he said I am not in favor of the death penalty. He additionally said there might be some instances where maybe a juror could impose the death penalty. When asked in individual voir dire, could you impose the death penalty, he said, 'I don't think so.'
"He also noted in voir dire that he had some family obligations that might prevent him from jury service.
"And those were the main factors of why Juror Number 65 was struck."
(RTR, R. 10-11.)
Regarding Juror 39, the State explained:
"The next would be Juror Number 39. The first thing of note to the prosecution in this case was the fact that this juror was Seventh Day Adventist, his religion, that the Court had engaged the entirepanel in general voir dire about possible service on Saturday and that this would conflict with his religious beliefs. That was our primary reason for striking him, that was he noted he was Seventh Day Adventist in his questionnaire in Question Number 8 and then also acknowledged that in voir dire.
"We also noticed from his questionnaire that he was unemployed and there was scant information from him about his employment. That was another factor in that.
"And then in Question Number 44, it says something about him or family in the ministry, and he indicated in there--it was not completely clear, I believe, judge. It says do you or any relative or close personal friend belong to any group or organization which ministers to prisoners or inmates, B. Provides legal, social, or other assistance to prisoners, inmates, or ex-cons? He answered yes. And it says please explain. He said prison ministries. That, too, was a factor in our eliminating him from the jury.
"We also note in Question 26 that a friend of his was a pastor.
"Then in Question Number 79 at the end of the questionnaire, having to do with media and whether a particular juror could be
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