Warner v. State, 3 Div. 945

• Decision Date: 23 February 1990
• Docket Number: 3 Div. 945
• Citation: 594 So.2d 664
• Parties: Jacob WARNER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 664

594 So.2d 664

Jacob WARNER v. STATE.

3 Div. 945.

Court of Criminal Appeals of Alabama.

Feb. 23, 1990.

Rehearing Denied March 30, 1990.

Richard D. Shinbaum, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Jacob Warner was indicted for the capital murder of Charles Williams in violation of Ala.Code 1975, § 13A-5-40, subsections (a)(2) (murder during a robbery), (a)(4) (murder during a burglary, two counts), and (a)(14) (murder of a witness). His trial was consolidated with that of Terry Bird. See Bird v. State, 594 So.2d 644 (Ala.Cr.App.1990). Both defendants were convicted. The trial judge accepted the recommendation of the jury and sentenced Warner to life imprisonment without the possibility of parole. This appeal is from that conviction.

I

Warner made a timely motion to quash the jury panel based on the allegation that the State used its peremptory strikes in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Upon the motion being made, the prosecutor volunteered to state the reason for each strike. The trial court did not make a specific finding of whether a prima facie case of purposeful discrimination had been proven.

The parties struck from a panel of 52 veniremembers, 19 of whom were black. The State used 17 of its 20 peremptory strikes to remove blacks. The defendant struck one black.

The chief deputy district attorney stated her reasons for her peremptory strikes on direct examination by an assistant district attorney. We summarize those reasons as follows:

1. No. 1: Henry Campbell was a minister and indicated that did not believe in the death penalty. He knew defendant Warner. He appeared to have some problem in focusing one of his eyes.

2. No. 83: Margaret Keeler indicated that she did not believe in the death penalty and called it murder. Her husband was employed by the ABC Board. The district attorney had recently conducted an extensive investigation of the Board which had resulted in a prosecution.

3. No. 87: Samuel Weatherly was 78 years of age, was opposed to the death penalty, and had a paternity case in family court. The prosecutor considered the affect the length of the trial and the "gory" photographs would have on this veniremember.

4. No. 75: L.T. was recognized as "well known" for "suspicion of shoplifting" in Parisian's department store. This information was supplied to the prosecutor by a staff member of the district attorney's office who was also employed at Parisian's. Ms. T. was 19 years of age, about the same age as defendant Bird.

5. No. 3: Dianetta Dixon indicated that she knew one of the Bird family members. The prosecutor anticipated that the defense might call family members to present mitigating evidence. The district attorney had recently prosecuted "almost a whole family" of Dixons in a tax-related case and was concerned that this veniremember might be related and harbor some animosity toward the State.

6. No. 93: Daisy Perry was reluctant and did not want to impose the death penalty.

7. No. 26: Patricia Broadnax lived in a "high crime area" where "many drugs and burglary type cases" were "going on." The prosecutor stated that "we had some difficulties in that area." The district attorney had prosecuted a Broadnax and the prosecutor felt that this venireperson could be related to that defendant.

8. No. 31: Bernard Ashley had been charged with possession of marijuana. He had heard of defense counsel for defendant Warner.

9. No. 33: Alma Smith had been a juror in a criminal case that had been dismissed. The prosecutor expressed concern that she might have a "possible problem or bad taste" about the criminal justice system for that reason. She lived in the defendant's neighborhood. She had difficulty talking and communicating and did not appear to be familiar with the term "shoplifting."

10. No. 113: Elizabeth Geeter was a teacher and knew the wife of defendant Warner. Although the prosecutor had information that her husband was employed, Mrs. Geeter indicated that he was unemployed. The prosecutor was concerned that he might have been fired.

11. No. 97: Joseph Jarrett was 73 years of age. He did not raise his hand to be sworn when requested. The prosecutor did not know whether this was due to a physical ailment or a hearing difficulty. He indicated that he could not hear "low voices."

12. No. 37: Sarah Lowery had charges of speeding and disorderly conduct. She was a teacher and the prosecutor felt that "teachers very frequently make jurors who tend to look for ways to forgive and forget." She "very clearly and forcefully" indicated that she did not know any of the attorneys or the defendants and their families but totally omitted to indicate whether or not she knew the victim.

13. No. 45: Brenda Harris's husband was an assistant basketball coach at Alabama State University. ASU had been under a lengthy investigation by the district attorney involving allegations of trading sexual favors for grades. Evidence of "sexual activity" might be introduced in this case.

14. No. 96: L.W. was single and self-employed as a private duty nurse. He had at least two driving violations. The prosecutor's observations of this venireperson--the way he answered, what he said, the way he crossed his legs, the way he looked--indicated to her that he had "tendencies being homosexual." The prosecutor stated that this venireperson had some "effeminate traits" and was "very dainty." The victim in this case was a homosexual and there might be evidence of homosexual activity. Mr. W. indicated that he knew a witness for the defense.

15. No. 27: Brenda Belser lived in an area in which the prosecutor had had a number of defendants. She was 24 years of age and might identify with defendant Bird for that reason. She initially indicated that she had some reservations about the death penalty but eventually "seemed to be okay about that." She had a misdemeanor conviction for negotiating a worthless instrument and did not respond when the venire was questioned about misdemeanor convictions.

16. No. 76: Pamela Reed was 26 years of age and had a college degree but was "just" a cashier at a "finance kind of company." The prosecutor had information that she worked as a "data entry person." The prosecutor was concerned that Ms. Reed was not using her degree and that she may have had problems at work. She lived in a high crime area and there had been a shooting recently in that general area. The prosecutor was familiar with this area of town because her parents used to live in that area. The prosecutor testified that "there was just something nagging at me about her.... [I]t's the way she answered the questions. It was just something about her that made me feel like she would not be a strong juror. That is, not more likely to convict than to acquit."

17. No. 91: Jocelyn Weems was expecting a child. The prosecutor expressed concern over the effect the length of the trial would have on Mrs. Weems as well as the effect of photographs and a video depicting the "gruesomeness" of the crime. Mrs. Weems was 26 years of age, about the same age as defendant Bird. She had violations for speeding and for passing a stopped school bus, about which she laughed and denied her guilt. The prosecutor was concerned about her attitude toward law enforcement.

On cross-examination of the deputy district attorney, defense counsel attempted to establish that the State had left whites on the jury with the same or similar characteristics to blacks it had removed. Although the prosecutor stated that she "recall[ed] striking every teacher that [she] remember[ed]," the prosecutor testified that she had not struck juror Ruth Sanders (no. 6), because she was informed that her husband was a "counselor/evaluator," and not a teacher at a local school. We note that the State did strike venireperson no. 48, Douglas Sileo, a white male, whose wife was a teacher. We also note that in Williams v. State, 548 So.2d 501, 505 (Ala.Cr.App.1988), this same prosecutor struck school counselors on the assumption that they either disapproved of or would respond less favorably to the punitive nature of a criminal prosecution.

Although the prosecutor struck veniremembers who knew defense witnesses, she did not strike juror number 30, Betty Dean, who knew a defense witness, because she had information that the witness would be out of the country and unavailable to testify. She did not strike juror Helen DePorter (no. 39), who had a traffic conviction because the conviction was 15 years old. She did not strike juror Alva Ray (no. 103), who was 74 years of age and who had sat on a jury which had returned a not guilty verdict, because she had no personal observation or indication that he was not in good health. Mrs. DePorter had also been a member of a jury which had returned a not guilty verdict, according to defense counsel.

Defense counsel represented that several jurors lived in high crime areas but were not struck by the State. The prosecutor stated that she did not know where Garden Dale was located where juror Lanatha Nelson (no. 7) lived, although she was familiar with a murder on Patton Court. She did not know that juror Ruth Sanders lived in the Hunter Loop area in the same vicinity where one of the State's witnesses had, according to defense counsel, committed three burglaries, about which the prosecutor also had no knowledge. She was not aware of any recent particular crimes in the Harrison Road area where juror Betty Dean (no. 30) lived.

Although the prosecutor testified that, "I believe we struck everyone we thought had a connection to someone we had prosecuted," she stated that she did not know that juror Donald Mitchell (no. 64) had been prosecuted in the circuit court. It was established that juror Mitchell was not the same Donald Mitchell that had been represented by defendant Warner's counsel in the circuit...