Smith v. State, CR-89-1290
| Decision Date | 18 September 1992 |
| Docket Number | CR-89-1290 |
| Citation | 620 So.2d 732 |
| Parties | Kenneth Eugene SMITH v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
This cause was remanded to the trial court on September 20, 1991, with instructions to make findings of fact regarding the racial composition of the venire and, specifically, the race of those veniremembers who were struck by the State. See Smith v. State, 588 So.2d 561 (Ala.Cr.App.1991). The trial court was to determine whether a prima facie case of racial discrimination existed and, if so, to require the prosecutor to come forward with reasons for his strikes of black veniremembers. The trial court was then to determine whether these reasons were race neutral. On remand, the trial court found no prima facie case of racial discrimination. However, on the trial court's return to that remand, and based on the record, including evidence provided by the appellant, this court found that the defendant had made a prima facie case of discrimination pursuant to Ex parte Branch, 526 So.2d 609 (Ala.1987). See our "on return to remand" opinion of March 13, 1992, 620 So.2d 727. Therefore, we again remanded the case to the trial court for that court to hold a hearing, in which the prosecutor was to come forward with reasons for his peremptory challenges of black veniremembers. The court was then to determine whether the reasons given were sufficiently race neutral, under the guidelines provided by Ex parte Branch, supra, and Ex parte Bird, 594 So.2d 676 (Ala.1991). If the trial court determined that the reasons were sufficiently race neutral, a transcript of the hearing and the trial court's findings of fact and conclusions of law were ordered returned to this court. However, this court held that, if the trial court determined that the prosecutor's reasons were not sufficiently race neutral, the appellant was entitled to a new trial, and an order reflecting this finding was to be returned to this court.
On return to remand, the trial court has held that, following a hearing on this matter, the State's explanation of its challenges of black veniremembers, "was not in accordance with the guidelines of the Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and Branch cases in that there was a lack of questioning to the challenged jurors or a lack of meaningful questions." The trial court therefore set aside the appellant's conviction.
An examination of the record on return to remand, which includes the transcript of the hearing, establishes that the prosecutor was called to testify as to his reasons for his strikes, following which, he was cross-examined by the defense counsel. Although on their face, the prosecutor's reasons for his strikes appear to be racially neutral, two of the reasons were suspect.
The prosecutor gave sufficiently race-neutral reasons for most of his strikes. One of the potential jurors was struck because he had difficulty hearing. Two potential jurors were struck because they were elderly and retired and the prosecutor noted that the only elderly juror left on the jury panel was still fully employed. Several black jurors, as well as white jurors, were struck because they failed to respond during voir dire questioning that they had previously served on a criminal jury. On cross-examination by the defense counsel, the prosecutor testified that he knew that these were the same jurors that had in fact previously served on criminal juries, by comparing their known addresses with those on the other jury lists. Two potential black jurors were struck because they responded, during voir dire questioning, that they would hold the State to a higher burden of proof in a capital case than in some other criminal case.
As to the more suspect reasons, the prosecutor stated that one of the potential black jurors was struck because he was employed as a cook, the same occupation as the appellant's codefendant. On cross-examination, the defense counsel asked if the codefendant's occupation had any relevance to the present case, and the prosecutor responded...
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