Swain v. State, 7 Div. 680

• Decision Date: 09 December 1986
• Docket Number: 7 Div. 680
• Citation: 504 So.2d 347
• Parties: Kenneth Ray SWAIN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 347

504 So.2d 347

Kenneth Ray SWAIN v. STATE.

7 Div. 680.

Court of Criminal Appeals of Alabama.

Dec. 9, 1986.

On Return to Remand March 10, 1987.

Andrew W. Redd, Sylacauga, for appellant.

Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Kenneth Ray Swain was convicted of rape in the second degree and sexual abuse in the second degree. He was sentenced to five years imprisonment on the rape conviction. He was not sentenced for the sexual abuse conviction.

The State's evidence proved that the defendant, on two separate occasions, raped and sexually abused the thirteen-year-old daughter of the woman with whom he had been living.

I

We find no evidence of purposeful discrimination by the prosecutor in the use of his peremptory strikes in selecting the trial jury and no violation of the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

First, there was no timely objection. Defense counsel objected only after the jury was empaneled and sworn. "In light of Batson, the proper time to raise such an objection was after the peremptory strikes had been made, but prior to the jury being sworn." Williams v. State, 712 S.W.2d 835, 840 (Tex.Dist.Ct.App., 1986). Even when the motion to quash the jury panel was made it was equivocal, provisional, and conditional "on the outcome of the case." A defendant may not speculate on the outcome of the case in making his objections and proving the allegations on which those objections are based. Cf. Van Antwerp v. State, 358 So.2d 782, 791 (Ala.Cr.App.), cert. denied, Ex parte Van Antwerp, 358 So.2d 791 (Ala.1978).

Second, the defendant has not established a prima facie case of discriminatory selection. When objection was made, the record shows the following, and only the following, with regard to this issue:

"MR. REDD [Defense Counsel]: Judge, I move that the jury panel just selected be quashed, for reasons that there has been a systematic elimination of blacks from that particular jury. Of nineteen strikes, the State has struck thirteen black members of the panel. And from a recent Supreme Court opinion, that would be prohibited. I don't know, but perhaps this could be taken up later. It would depend on the outcome of the case. But we would make that motion.

"THE COURT: How many blacks are there actually on the jury. I saw a number of them.

"MR. CONOVER [Assistant District Attorney]: I think five, four or five.

"THE COURT: I'll overrule the motion."

The fact that not all black jurors were excluded from a black defendant's trial does not compel the conclusion that the defendant was afforded equal protection.

"First, the court found that because all black jurors were not excluded from Fleming's jury as they were in Batson, the latter case did not apply. But nothing in Batson compels the district court's conclusion that constitutional guarantees are never abridged if all black jurors but one or two are struck because of their race. On the contrary, Batson restates the principle that ' "[a] single invidiously discriminatory governmental act" is not "immunized by the absence of such discrimination in the making of other comparable decisions." ' Batson, supra, 106 S.Ct. at 1722, quoting Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 266, n. 14, 97 S.Ct. 555, 564, n. 14, 50 L.Ed.2d 450 (1977). We cannot agree that Batson may be rendered a priori inapplicable by a prosecutorial game of numbers." Fleming v. Kemp, 794 F.2d 1478, 1483 (11th Cir.1986).

"As a general matter, a single discriminatory act against one individual can amount to intentional discrimination for equal protection purposes." Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1186-87 (7th Cir.1986).

Despite the reason for the trial court's ruling, the defendant is not entitled to relief because he failed to make a prima facie case of purposeful discrimination in the prosecutor's exercise of peremptory challenges. "As in any equal protection case, the 'burden is, of course,' on the defendant who alleges discriminatory selection of the venire 'to prove the existence of purposeful discrimination.' " Batson, 476 U.S. at ----, 106 S.Ct. at 1721.

To establish a prima facie case, the defendant must show: (1) "that he is a member of a cognizable racial group"; (2) "that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race"; and (3) "that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice [peremptory challenges] to exclude veniremen from the petit jury on account of their race." Batson, 476 U.S. at ----, 106 S.Ct. at 1723; United States v. Erwin, 793 F.2d 656, 667 (5th Cir.1986). In making a prima facie showing, "the defendant is entitled to rely on the fact, ... that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' " Batson, 476 U.S. at ----, 106 S.Ct. at 1723.

Here, the defendant has failed in establishing the third and "most important criteri[on]." State v. Newman, 491 So.2d 174, 177 (La.App.1986). He has failed to present any record of voir dire. "[T]he trial judge [has] broad discretion to determine whether an inquiry into racially neutral reasons for peremptory challenges must be made.... The reason for this is that one present at voir dire can make observations which the record does not necessarily disclose and which could explain peremptory challenges on race neutral grounds." Rose v. State, 492 So.2d 1353, 1356 (Fla.Dist.Ct.App., 1986) (Sharp, J, dissenting).

The record before us only shows that the prosecutor struck thirteen blacks and six whites from the jury venire. Although we recognize that "striking a disproportionate number so as to render minority representation on the jury impotent can be enough to make out a prima facie showing," Williams, 712 S.W.2d at 841, the record does not reveal the number of blacks on the jury venire and consequently does not supply a finding of disproportionality.

Other than the bare allegation of defense counsel, there is nothing in the record to indicate that the prosecutor struck the thirteen blacks from the jury panel on the basis of race. "This court cannot find systematic exclusion of blacks based on a mere allusion." People v. Peters, 144 Ill.App.3d 310, 98 Ill.Dec. 731, 494 N.E.2d 853, 862 (1986). "While the Supreme Court declined 'to formulate particular procedure to be followed upon a defendant's timely objection to a prosecutor's challenges,' Batson, [---] U.S. at [----], 106 S.Ct. [at] 1724, we cannot read the opinion to require a prosecutor to explain his right of peremptory challenges upon a defendant's mere objection to a jury and unsubstantiated claims of discrimination." Weekly v. State, 496 N.E.2d 29, 31 (Ind.1986) (general objection without reason; number and race of stricken jurors unknown). In Sashner v. State, 500 So.2d 1322 (Ala.Cr.App.1986), we held that "the mere allegation that the prosecutor 'used all her strikes to try to eliminate all of the blacks off the jury' does not constitute a prima facie showing of discriminatory selection of the venire."

The removal of blacks by the use of peremptory challenges does not, by itself, raise an inference of racial discrimination. Phillips v. State, 496 N.E.2d 87, 89 (Ind.1986).

"Under Batson, the prosecution must necessarily exercise its strikes to enable the defendant to make a prima facie showing that the strikes were used in a racially discriminatory fashion. Appellant's argument presumes that the state will act with this purpose. This argument misplaces the burden of proof. The Supreme Court clearly stated in Batson that, as in any equal protection case, the burden is on the party alleging the discriminatory action to prove the existence of a racially discriminatory purpose.

"There still exists, at least initially, a presumption that the state has exercised its peremptory challenges with a neutral purpose, though now it is a realistically rebuttable one. Batson does not require the state to provide a benign justification for peremptorily striking Blacks from a petit jury absent a prima facie showing by the defendant that the strikes were made solely on the basis of race." Williams, 712 S.W.2d at 840-41.

There exists a rebuttable presumption that the prosecution has exercised its peremptory challenges on constitutionally permissible grounds. This presumption is justified for three reasons:

"We begin with the rebuttable presumption that the prosecution has exercised its peremptory challenges on grounds permissible under Article I, paragraphs 5, 9, and 10 of the New Jersey Constitution. We adopt this presumption for three reasons: first, out of respect for prosecutors, who we do not assume will shirk their obligation to do justice for the cynical cant that their duty is to obtain a conviction; second, out of homage to the very old credentials of the peremptory challenge; and third, out of deference to the legislative intent expressed in N.J.S.A. 2A:78-7, which allows peremptory challenges." State v. Gilmore, 103 N.J. 508, 511 A.2d 1150, 1164 (1986).

Alabama provisions similar to those of New Jersey are Ala. Const. art. I, §§ 1, 6, 11 and § 12-16-100, Code of Alabama 1975.

For these reasons, we find that the defendant's motion to quash the jury was properly overruled.

II

The defendant maintains that his statement was due to be suppressed as the fruit of an illegal arrest. He claims that the arrest warrant was invalid because it was based on the purely conclusory statements of a non-victim, non-witness affiant, whose affidavit did not provide probable cause to believe that the defendant had committed the offense of rape. The affidavit, signed by the mother of the thirteen-year-old victim, recited the following:

"Before me, the undersigned authority, personally appeared [the victim's mother]...