Smith v. State

• Decision Date: 10 February 1987
• Docket Number: 6 Div. 5
• Citation: 531 So.2d 1245
• Parties: Jerome SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1245

531 So.2d 1245

Jerome SMITH v. STATE.

6 Div. 5.

Court of Criminal Appeals of Alabama.

Feb. 10, 1987.

Rehearing Denied March 24, 1987.

Certiorari Denied June 19, 1987

Alabama Supreme Court 86-898.

On Return to Remand Aug. 23, 1988.

Roger A. Brown and Russell T. McDonald, Jr., Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Jerome Smith, was convicted of the capital offense of intentional murder during the course of committing a theft, in violation of § 13A-5-40(a)(2), Code of Alabama (1975). The jury recommended a punishment of life without parole, and, following a sentencing hearing, the trial court followed the jury's recommendation.

The appellant argues that he was denied a fair trial because of the prosecution's exclusion of members of his race from the jury. The record establishes that the appellant is black and that of its 14 strikes the State used the first thirteen against black potential jurors. The defense counsel objected as to each separate strike and again at the close of the jury selection. Thereafter, he moved for a mistrial, to which the prosecutor responded, "I'd just like to say for the record that there was no systematic exclusion and that's all I have." The court then overruled the defense counsel's motion for a mistrial. No further explanations were given by the prosecutor for his thirteen strikes.

"[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, Castaneda v. Partida, [430 U.S. 482] at 494, 97 S.Ct. [1272] at 1280 , and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges "....

                constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.'  Avery v. Georgia, [345 U.S. 559] at 562, 73 S.Ct.   at 892 [97 L.Ed. 1244].  Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.  This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination
                

"Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69 (1986).

Under Alabama constitutional law, the Batson decision is to be applied retroactively. Jackson v. State, 516 So.2d 768 (Ala.1986).

The prosecution must show that the challenges " 'were based on the particular case on trial, the parties or witnesses, or characteristics of the challenged persons other than race.' " Jackson v. State, supra, at 772, quoting State v. Neil, 457 So.2d 481, 487 (Fla.1984). The district attorney has not forwarded his reasons for striking the thirteen blacks from the jury. Therefore, this case is remanded to the trial court in order for the prosecutor to come forward with race-neutral explanations for his use of the thirteen peremptory strikes, and, if he is unable to do so and the trial court determines that the facts establish a prima facie case of purposeful discrimination, the appellant is entitled to a new trial. Should the trial court find no prima facie showing of purposeful discrimination, a return shall be filed with this court containing the evidence at this hearing and the trial judge's findings following the hearing.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

ON RETURN TO REMAND

McMILLIAN, Judge.

This cause was remanded, in accordance with the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the circuit court with instruction that the Court give the prosecutor an opportunity to come forward with explanations for his use of peremptory strikes. The trial court was further instructed, should no prima facie case of purposeful discrimination be established, to file a return to this Court containing the evidence offered in the hearing and the trial judge's findings of fact.

In accordance with our instructions, the lower court conducted a hearing, in which the prosecutor stated the following reasons for his strikes of black venire persons:

"1. Debra Munford was single, and had a fixed opinion against capital punishment.

"2. Carmen Edwards was in the process of getting a divorce, and her husband had previously been charged with robbery.

"3. John Crum was opposed to capital punishment, had problems with sitting in judgment of others, and was familiar with the case.

"4. Rosa Payne had two small grandchildren to take care of, and she had stated that she did not want to be on the jury.

"5. Robert Lewis was unemployed, appeared to have no home life, and no interest in the community. The prosecutor further stated that Lewis was unresponsive to questions asked him on voir dire.

"6. Mary Marsh initially responded as being opposed to capital punishment, and rolled her eyes when the prosecutor asked her questions.

"7. David McCants, Jr., had indicated that he had to care for his mother, who was 75 years old and epileptic.

"8. Arthelda Odum was young, unemployed, and was opposed to capital punishment. The prosecutor also stated that Odum was inattentive during portions of the voir dire examination.

"9. Nathaniel Smiley was young, single, and appeared to be asleep or inattentive during voir dire.

"10. Betty Boles was struck because she was a social worker and because she had sat on a jury in a criminal case that returned a verdict of not guilty.

"11. Yvonne Kennedy was struck because she complained that jury duty would interfere with her caring for her young baby.

"12. Tyrone Booker was struck because he nodded his head in agreement with the appellant's attorney during counsel's voir dire examination of other prospective jurors.

"13. Geraldine Given indicated that she had a fixed opinion against capital punishment, and that she had religious and moral convictions against sitting in judgment of others."

The State used its last strike to remove a white female for much the similar reasons. On return to remand, the lower court found that the appellant failed to establish a prima facie Batson violation, noting that the State's use of its peremptory strikes was race-neutral, and was for the sole purpose of excluding members of the black race from the jury.

Although this cause was remanded prior to our Supreme Court's opinion in Ex parte Branch, 526 So.2d 609 (Ala.1987), the record in this case is sufficient for an application of the guidelines in Branch. After applying the principles of Batson and Branch to the instant case, we conclude that the trial court accurately concluded that the prosecutor did not use his peremptory strikes for a discriminatory purpose.

The Branch court held:

"After a prima facie case is established, there is a presumption that the peremptory challenges were used to discriminate against black jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. The offending party then has the burden of articulating a clear, specific and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. However, this showing need not rise to the level of a challenge for cause. Jackson, supra; Neil, 457 So.2d at 487; [People v. ] Wheeler, 22 Cal.3d at 281-82, 583 P.2d at 765, 148 Cal.Rptr. at 906." Id. at 623. (Emphasis in original).

Moreover, the Court held in Ex parte Jackson, 516 So.2d 768 (Ala.1986), quoting State v. Neil, 457 So.2d 481 (Fla.1984):

" 'The reasons given in response to the court's inquiry need not be equivalent to those for a challenge for cause. If the party shows that the challenges were based on the particular case at trial, the parties or witnesses, or characteristics of challenged persons other than race, then the inquiry should end and the jury selection should continue.' "

See also Funches v. State, 518 So.2d 781, 783 (Ala.Cr.App.1987).

The record of this case indicates that the questions asked by the prosecutor on voir dire in the present case were clear, specific, and predicated on the facts of this case. Nor does it appear that black venire persons were asked questions on voir dire that were designed to invite strikes. The reasons contained in the record for strikes of black veniremen were clear, specific, pertinent to the facts of this case, and race-neutral in nature.

"Batson requires this Court to give the trial court's determination 'great deference'." Currin v. State, [Ms. 2 Div. 639, May 24, 1988] (Ala.Cr.App.1988). Moreover, "[w]e may only reverse the trial judge's determination that the prosecution's peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous." Branch, supra, at 625. Because the findings of the circuit court that the prosecution did not use its peremptory challenges to purposefully exclude blacks from the jury are not clearly erroneous, they will not be reversed on appeal by this Court.

II.

The appellant contends that the trial court improperly restricted his cross-examination of two of the State's witnesses and thereby violated his rights to confront his accusers guaranteed him by the Sixth and Fourteenth Amendments.

During appellant's cross-examination of State's witness Willie Gilmore, Jr., the following exchange occurred:

"Q. Do you remember the officers asking you,...