Taylor v. State

• Decision Date: 08 July 1994
• Citation: 666 So.2d 36
• Parties: Michael Shannon TAYLOR, alias v. STATE. CR 92-1313.
• Court: Alabama Court of Criminal Appeals

Page 36

666 So.2d 36

Michael Shannon TAYLOR, alias v. STATE.

CR 92-1313.

Court of Criminal Appeals of Alabama.

July 8, 1994.

Charles C. Hart, Gadsden, Bryan Stevenson and Ellen R. Finn, Montgomery, Mac Downs, Gadsden (withdrew March 22, 1994), for appellant.

James H. Evans, Atty. Gen., and Tracy Daniel, Deputy Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Michael Shannon Taylor, the appellant, was convicted of the capital murders of Ivan Ernest Moore and Lucille Moore of Gadsden, Alabama. The trial court accepted the unanimous recommendation of the jury and sentenced the appellant to death. The appellant raises 26 issues on this direct appeal from that conviction.

I

The appellant claims that the prosecutor struck black veniremembers in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987).

The prosecutor used three of his strikes to remove three of the five black veniremembers. Two blacks served on the appellant's jury. R. 767.

The three black veniremembers struck by the prosecution were Alford (no. 2), Brewster (no. 7), and Turner (no. 55). After defense counsel made his Batson objection, ¹ the prosecutor argued that the appellant had failed to show a "pattern of discrimination," but he nevertheless stated his reasons for striking the three veniremembers. R. 766. Consequently, we review the validity of those stated reasons.

If the challenged party offers explanations for its strikes, the question whether a prima facie case of discrimination has been established becomes moot. Hernandez v. New York, 500 U.S. 352, 358-60, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991) ("[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot"). Where the challenged party's explanations for his strikes are a part of the record, those explanations will be reviewed by the appellate courts regardless of the manner in which they came to be in the record. See, e.g., Huntley v. State, 627 So.2d 1013, 1016 (Ala.1992); Jackson v. State, 594 So.2d 1289, 1293 (Ala.Cr.App.1991). "[W]hen the trial court calls upon the prosecutor for an explanation, without expressly finding a prima facie case, we will proceed directly to evaluate the sufficiency of the ensuing explanation." Williams v. State, 548 So.2d 501, 504 (Ala.Cr.App.1988), cert. denied, 489 U.S. 1028, 109 S.Ct. 1159, 103 L.Ed.2d 218 (1989). If any of the explanations advanced by a prosecutor are deemed to be insufficient, the defendant's conviction will be reversed, even if the defendant did not establish a prima facie case. See Jackson v. State, 594 So.2d at 1292-94.

Here, the prosecutor volunteered the following reasons for his peremptory strikes:

J. Turner: "[I]ndicated that he would not go along with the death penalty." R. 768.

E. Alford: "He indicated that--on religious grounds that he did not believe in capital punishment." R. 768.

B. Brewster: "[S]aid that she was not for the death penalty and ... out of the--I think, total of what, 80 that we had all total, was the only one that I noticed that all during voir dire sat up on the back row in the corner and stared out the window and did not pay much attention, if any, to much of anything anybody said. She did not indicate any interest. She gave appearances at times of being just flat out bored at being present." R. 768-69.

After hearing the reasons offered by the prosecutor, the trial judge denied the Batson challenge without comment. R. 774. The appellant argues on appeal that the reasons given by the prosecutor were mere pretexts for racial discrimination.

Veniremember Alford

On appeal, the appellant does not challenge the reason given for striking E. Alford. We find that the prosecutor's reason for striking veniremember Alford is amply supported by the record. See R. 272, 273, 280-281, 284.

Veniremember Turner

Veniremember Turner responded as following on voir dire:

"MR. HEDSGPETH [district attorney]: If Mr. Taylor, then, is convicted on any one, two or all three of these capital offenses, and if after we go through the punishment phase, we present aggravating circumstances and the defense presents any mitigating circumstances and you go and consider all of them and assign whatever weight that you think is the most important, after doing so, if you find that the aggravating circumstances in this case outweighed the mitigating, would you have a problem in recommending to this judge that this defendant be put to death by electrocution?

"MR. HEDSGPETH: Mr. Turner?

"MR. TURNER: No.

"MR. HEDGSPETH: No, you wouldn't have a problem or no, you couldn't do it?

"MR. TURNER: It would be--I don't know. I would just have to hear the circumstances.

"MR. HEDGSPETH: I'm just asking you to assume that whatever you heard, if the aggravating circumstances outweighed the mitigating, would you have a problem in recommending the death penalty to this judge?

"MR. TURNER: No.

"... [other veniremembers shake head in the negative]

"MR. HART [defense counsel]: Now, even assuming what you [veniremember Thacker] said earlier, like, it's gory or gruesome or no mercy is shown; even with that on the one hand as aggravating, do you still think that there could be some cases that those other mitigating factors are there that you could vote for life without parole?

"MR. THACKER [veniremember]: They possibly could be, but I don't--You know, I sort of--I guess that--The mercy, you know, the type situation or whatever would weigh a lot more than probably him being a good guy or whatever or being good since that happened or confessing. Probably wouldn't outweigh it.

"MR. HART: If the facts are as I've outlined at this point in time--Well, I won't ask you that.

"MR. TURNER: I guess I'll go that way....

"MR. HART: Let me ask if the two aggravating circumstances in this case are as I've outlined, that it's an intentional killing during a robbery, there's a robbery involved, and that it's heinous, atrocious or cruel compared to other intentional killings, compared to other murders, if those are the aggravating on the one hand and if you have some mitigating circumstances such as he was almost 20 at the time, that he didn't have a significant history of criminal actions before that happened, that he gave a confession, that in the past 16 months since he's been arrested he's been quiet in jail, that he comes from a family that does love him, in considering that, could you consider both the aggravating circumstances and give weight to them and mitigating circumstances and give some weight to them in making up your mind or at this point in time do you have an opinion?

"MR. TURNER: From what I heard you say that, you know, he had done, which I think it was premeditated.

"MR. HART: The interpretation most people would put is I guess he had to think about it. Nobody knows. But he had to think about it, because I guess he brought the bar with him.

"MR. TURNER: I would say by him premeditated, he had time to think about it, but I wouldn't say that I would--I wouldn't--for right now I wouldn't say definite life in prison.

"MR. HART: Right now you wouldn't say one way or the other?

"MR. TURNER: No, I couldn't say.

"MR. HART: You wouldn't have an opinion?

"MR. TURNER: No. But, like, everything that I heard you say, you know, it was premeditated. But giving a sentence right now, I couldn't say life or death." R. 657-50, 677-80.

Defense counsel argued that the prosecutor's reason for removing veniremember Turner was not race-neutral because "[i]f they were opposed to the death penalty at the time that we did the voir dire of the panel, he should have made a motion for cause at that time." R. 771. We reject that argument. "Although a juror's reservations about the death penalty may not be sufficient for a challenge for cause, his view may constitute a reasonable explanation for the exercise of a peremptory strike. See Fisher v. State, 587 So.2d 1027 (Ala.Crim.App.), cert. denied, 587 So.2d 1039 (Ala.1991)[, cert. denied, 503 U.S. 941, 112 S.Ct. 1486, 117 L.Ed.2d 628 (1992) ]." Johnson v. State, 620 So.2d 679, 696 (Ala.Cr.App.1992), reversed on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993).

However, having only a printed record of the voir dire to review leaves much to be desired. Viewing Turner's responses in the light most favorable to the State, we cannot state that those responses affirmatively support the prosecutor's reason, i.e., that this veniremember "indicated that he would not go along with the death penalty." R. 768. However, it does appear that at least at one point the prosecutor expressed some concern about Turner's willingness to impose the death penalty.

In explaining his reasons for his peremptory strikes under oath, the prosecutor stated, "Since I've been the district attorney there has never been any pattern of showing any attempt by the State of Alabama to discriminate [against] anyone on the basis of race." R. 771. The prosecutor listed nine white veniremembers he had struck because they "indicated a reluctance toward the imposition of the death penalty." R. 769-771.

Even if we assume that the prosecutor was wrong in his assessment of veniremember Turner's attitude toward the death penalty, we would not be convinced that his reason for striking Turner was a sham or a pretext. " 'A prosecutor may strike from mistake, as long as the assumptions involved are based on an honest belief and are racially neutral.' " Reese v. City of Dothan, 642 So.2d 511 (Ala.Cr.App.1993).

"The relevant inquiry in a case of discrimination is whether the prosecutor intended to so discriminate. 'We appreciate that it is impossible to know what...