Sistrunk v. State, CR-90-1798

• Decision Date: 17 April 1992
• Docket Number: CR-90-1798
• Citation: 599 So.2d 87
• Parties: A.D. SISTRUNK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 87

599 So.2d 87

A.D. SISTRUNK v. STATE.

CR-90-1798.

Court of Criminal Appeals of Alabama.

April 17, 1992.

Rehearing Denied May 15, 1992.

Thomas K. Brantley, Dothan, for appellant.

James H. Evans, Atty. Gen., and J. Randall McNeill, Asst. Atty. Gen., for appellee.

JAMES H. FAULKNER, Retired Justice.

A.D. Sistrunk was convicted of assault in the second degree by the Circuit Court of Houston County, in violation of § 13A-6-21, Code of Alabama 1975. He was sentenced to 10 years in the penitentiary. His sentence was to run consecutively with his sentences in other cases, including one for trafficking in controlled substances.

We affirm the trial court.

On January 1, 1990, Adolphus Speight and a friend, Richard Brooks, went to the Centipede Club in Dothan, Alabama. While they were in the club, Speight saw Rachael Godwin and Brooks's sister, sitting at another table. She left her table to go to the rest room. When she returned, Sistrunk approached her and ran his hand up her dress. Despite Godwin's demand that Sistrunk leave her alone, Sistrunk continued his advances. Brooks interceded and told Sistrunk not to touch his sister. When Sistrunk did not react, Brooks grabbed his sister and took her to his table. They then decided to leave. When they got outside the club, Sistrunk and four other men were waiting for them.

While Sistrunk's friends held Speight, Sistrunk slashed Speight's face with a "box cutter." When Speight collapsed to the ground, Sistrunk and three of his friends proceeded to kick him. The fourth friend held a gun on Brooks, preventing him from coming to Speight's rescue.

Speight was taken to the hospital, where he was treated for several lacerations on his face. He suffered permanent injuries as a result of the assault.

On appeal, Sistrunk raises four issues: first, whether a Batson violation occurred; second, whether the trial court erred in admitting photographs that did not depict the injuries; third, whether the trial court erred in enhancing the sentence under the dangerous instruments provisions of the Alabama Criminal Code; and fourth, whether the State presented insufficient evidence to prove a prima facie case. We will discuss these issues in the order in which they appeared in the appellant's brief.

After Sistrunk made his Batson objection, the following exchange occurred:

"THE COURT: I understand you have some motions, Mr. Brantley.

"MR. BRANTLEY: Yes, sir. Your Honor, pursuant to Batson v. Kentucky, I hereby move, Your Honor, to strike these twelve jurors and let us strike again for reasons the State of Alabama has struck juror number forty-three, S.R.H., who is a black female, the reason that she is black. They have struck--that's the only reason.

"Juror number forty-five, F.L.J., for the reason he is a black, and that's the only reason they struck him.

"Juror number seventy-eight, M.E.S., for the reason that she is black, and that's the only reason they struck her.

"I have in my notes that S.R.H. did know the defendant, but that she stated that she could put that beside her--set it aside and she could set her religious reasons aside. I understand she said she could return a fair and honest verdict based on the evidence.

"F.L.J. stated that he knew the defendant, but there was no showing that he could not set that aside. And there was no--I have no response elicited one way or another from juror number seventy-eight, M.E.S.

"I would ask that you place those three black jurors on the jury panel and take three white members off, or in the alternative, let us start all over again.

"THE COURT: Mr. Valeska.

"MR. VALESKA: Judge, Mr. Lamere is going to give the reasons, Your Honor, except I would like to say for S.R.H. that I was up at docket call this morning when she came forward and she said that she had a concern of being on a jury panel because of her religious convictions. Second, she said she knew the defendant. She never said, in response to what Mr. Brantley said, because she knew the defendant she could be fair. What she said, after you asked her, she said that she could put her religious convictions aside and be fair, but based on she had a concern with religious conviction and she came forward this morning, as well as knowing the defendant, that was the reason we struck her.

"I will let Mr. Lamere tell you the other two, Judge.

"MR. LAMERE: Number forty-five, F.L.J., as the Court is well aware, prior to jury week, we sent our jury lists around. We had information from Lewis Miller at the Dothan Police Department that F.L.J. is involved with drug activity. He knows him through his police work and he stated he would be biased toward the State and he felt he would be a bad juror for the State. He also, number forty-five, indicated during the voir dire that he knew the defendant and his father lives around the corner from the defendant and he had seen him within the last six months. He also knew a defense witness, Darren Marshall, through the same living in that area. For those reasons, we struck number forty-five F.L.J.

"The other one, number seventy-eight, M.E.S., the reason that she was struck is Sergeant Mathis, who I believe is in the courtroom now--for the record, he is a black male. He is a jailer for the Houston County Sheriff's Department. He indicated that he knew her or knew of her and stated that from his knowledge, she had been involved in drugs in the past and that she hangs around with a bad crowd and he felt she would be biased towards the State and would not be a good juror for the State. For that reason, I struck her.

"MR. VALESKA: One other thing on M.E.S. It was brought to our attention that earlier today she approached the cage and had conversation with the defendants who were inside the cage, conversations took place. We don't know what those conversations were, but none of the other jury panel actually went up to the cage like M.E.S. did."

The trial judge found that the reasons for striking juror 45, F.L.J., and juror 78, M.E.S., were sufficiently race neutral and did not violate Batson, but he found that the reason striking juror S.R.H. was not race neutral. Subsequently, he reversed his ruling by stating:

"THE COURT: Let the record show that Court has conducted further voir dire of S.R.H. and that S.R.H. is first cousins to a witness in this case. And S.R.H., even though she has stated that she could listen to the evidence, has further stated--let me rephrase it.

"Even though she has stated she could listen to the evidence and make a fair and impartial decision and set aside her religious preference, she still expresses reservations and says her conscience would bother her in this case. And I think she indicated that if she looked at the pictures of the alleged victim that it would bother her as too biased toward the defendant. So on all those grounds, I feel that I have conducted as much voir dire as can be done and I'm going to deny the Batson motion."

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