Smith v. State

• Decision Date: 20 September 1991
• Citation: 590 So.2d 388
• Parties: Dale SMITH v. STATE. CR 89-533.
• Court: Alabama Court of Criminal Appeals

Page 388

590 So.2d 388

Dale SMITH v. STATE.

CR 89-533.

Court of Criminal Appeals of Alabama.

Sept. 20, 1991.

Rehearing Denied Oct. 25, 1991.

George K. Elbrecht, Monroeville, for appellant.

James H. Evans, Atty. Gen., and Thomas W. Sorrells, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Dale Smith was indicted for first degree kidnapping, in violation of § 13A-6-43, Code of Alabama 1975. He was found "guilty as charged in the indictment" and was sentenced to 35 years in prison as a habitual offender. He raises three issues on appeal. The relevant facts will be discussed as they arise.

I

The appellant, Smith, first contends that he was denied a fair trial because the trial court refused to allow him to cross-examine several jurors, the victim, and an investigator for the district attorney's office after the State had supplied its reasons for striking prospective black jurors during the hearing on the appellant's Batson motion. The appellant does not argue that the reasons given by the State were not race-neutral; he argues that the court erred in denying his motion to cross-examine prospective jurors and witnesses in order to rebut the reasons given by the State for its peremptory strikes.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court reaffirmed its earlier rulings that the Equal Protection Clause forbids the prosecutor from challenging potential jurors solely on the basis of race. The Court then held that "a defendant may establish a prima facie case of purposeful discrimination in the selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Once a prima facie case is established, the burden of proof shifts to the State to articulate race-neutral reasons for striking prospective black jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. These reasons must relate to the particular case to be tried. Batson, 476 U.S. at 98, 106 S.Ct. at 1724.

Although the Batson court declined "to formulate particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges," Batson, 476 U.S. at 99, 106 S.Ct. at 1724-25, the Alabama Supreme Court began to formulate those procedures in Ex parte Branch, 526 So.2d 609 (Ala.1987). Under Branch, once the State has articulated race-neutral reasons for challenging prospective black jurors, the defendant may offer proof that "the reasons or explanations are merely sham or pretext." Branch at 624. The court then described the type of proof that may be offered as follows:

"Other than reasons that are obviously contrived, the following are illustrative of the types of evidence that can be used to show sham or pretext:

"1. The reasons given are not related to the facts of the case.

"2. There was a lack of questioning to the challenged juror, or a lack of meaningful questions.

"3. Disparate treatment--persons with the same or similar characteristics as the challenged juror were not struck....

"4. Disparate examination of members of the venire; e.g., a question designed to provoke a certain response that is likely to disqualify the juror was asked to black jurors, but not to white jurors....

"5. The prosecutor, having 6 peremptory challenges, used 2 to remove the only 2 blacks remaining on the venire.

"6. '[A]n explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.' ... For instance, an assumption that teachers as a class are too liberal, without any specific questions having been directed to the panel or the individual juror showing the potentially liberal nature of the challenged juror."

Branch at 624 (citations omitted).

We disagree with the appellant's contention that, once the State has articulated race-neutral reasons for striking prospective black jurors, the defendant has the right to cross-examine members of the venire and any individual who supplied the prosecutor with information concerning any members of the venire. Neither Batson nor Branch mandates that a defendant be given the opportunity to cross-examine jurors or other witnesses in order to establish that the State's reasons are a sham or a pretext. Although the list of the types of evidence set out in Branch is not all-inclusive, our reading of the types of evidence illustrative of sham or pretext indicates that Branch does not anticipate the cross-examination of jurors or allow a defendant to go behind a prosecutor's information to determine if such information was true. A trial court's Batson findings largely turn on an evaluation of credibility. A prosecutor may strike from mistake, as long as the assumptions involved are based on an honest belief and are racially neutral. See Gamble v. State, 257 Ga. 325, 357 S.E.2d 792, 794 (1987); Durham v. State, 185 Ga.App. 163, 363 S.E.2d 607, 610 (1987). The appellant's contention that he has a right to present such testimony constitutes a substantial expansion of the findings in Batson and Branch, and we decline to do so. See Ex parte Lynn, 543 So.2d 709 (Ala.1988), cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989) (allowing appellant unlimited cross-examination of prosecutor during Batson hearing would constitute substantial expansion of holding in Batson.). The appellant's interpretation of Batson and Branch would require trial courts to conduct a trial within a trial and would needlessly lengthen trials. Other jurisdictions have also declined to expand Branch in various ways. Some jurisdictions have held that the defendant does not have the right to cross-examine the prosecuting attorney in order to show that the prosecutor's reasons are based on pretext. State v. Porter, 326 N.C. 489, 391 S.E.2d 144 (1990); Powell v. State, 187 Ga.App. 878, 372 S.E.2d 234 (1988). At least two federal jurisdictions have held that Batson does not require that the defendant be given the opportunity to rebut the government's reasons for exercising a peremptory strike. United States v. Tucker, 836 F.2d 334, 340 (7th Cir.1988), cert. denied, 490 U.S. 1105, 109 S.Ct. 3154, 104 L.Ed.2d 1018 (1989); United States v. Davis, 809 F.2d 1194, 1202 (6th Cir.), cert. denied, 483 U.S. 1007, 107 S.Ct. 3234, 97 L.Ed.2d 740 (1987). Although defendants have the right to such rebuttal under Branch, we find that the right to rebuttal does not include the cross-examination of jurors or the examination of victims, police officers, or any other individual who may have supplied the prosecutor with information about a juror which the prosecutor believes in good faith to be true. Thus, the trial court did not err in refusing to allow such cross-examination.

II

The appellant next contends that the trial court erred in admitting certain items of physical evidence because the State failed to prove a proper chain of custody at the time the items were admitted. He specifically argues that the trial court erred in admitting a pair of white Nike tennis shoes, sixteen plaster casts of tire impressions, a Derringer pistol, a .38 caliber revolver, a knife, and a plastic bag containing nylon hose. This argument has no merit. We have carefully reviewed the record and find that the State proved a...