Whatley v. State
Decision Date | 17 January 2014 |
Docket Number | CR–08–0696. |
Citation | 146 So.3d 437 |
Parties | Donald Dwayne WHATLEY v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
OPINION TEXT STARTS HERE
Alabama Supreme Court 1110953.
Glenn L. Davidson, Mobile; and Alicia A. D'Addario and Randall S. Susskind, Montgomery, for appellant.
Troy King and Luther Strange, attys. gen., and Stephanie E. Reiland, asst. atty. gen., for appellee.
The appellant, Donald Dwayne Whatley, was convicted of capital murder for the killing of Pravinbhai Patel. The murder was made capital because he committed it during the course of a first-degree robbery, see§ 13A–5–40(a)(2), Ala.Code 1975. By a vote of 10–2, the jury recommended that Whatley be sentenced to death. The trial court accepted the jury's recommendation and sentenced him to death. Whatley did not file any postjudgment motions. This appeal followed.
Whatley raises numerous issues in his brief to this court. However, our initial review of the record reveals that we must remand this case to the trial court for additional action so that we may properly address one of the issues he raises in his brief.
Whatley argues that it appears that the prosecution used its peremptory challenges 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). Specifically, he contends that the prosecution exercised a large number of challenges to remove black veniremembers, engaged in little or no voir dire examination of the black veniremembers it struck, engaged in disparate treatment of similarly situated black and white veniremembers, and struck veniremembers who had nothing in common other than race. Whatley also alleges that the Mobile County District Attorney's Office has a history of discrimination. Therefore, he concludes that we should remand this case for a Batson hearing.
The State notes that Whatley did not raise a Batson objection at trial. Therefore, it argues that we may review his argument only for plain error. SeeRule 45, Ala. R.App. P. Plain error is
Ex parte Trawick, 698 So.2d 162, 167 (Ala.1997).
Grimsley v. State, 678 So.2d 1194, 1195 (Ala.Crim.App.1995).
Ex parte Branch, 526 So.2d 609, 622 (Ala.1987).
Because Whatley did not raise a Batson objection at trial, the State did not have an opportunity to respond to his allegations and, if required by the trial court, to state its reasons for its exercise of its peremptory challenges. Also, the trial court, which is in a better position to evaluate such arguments because it was present during the jury-selection proceedings, did not have an opportunity to hear and rule on the allegations. Finally, based on the limited record before us, we cannot properly review Whatley's allegations.
Nevertheless, our review of the record indicates that, if the defense had filed a Batson motion at trial raising the arguments he now raises, the trial court would have been obligated to require the prosecutionto state the reasons for each of its peremptory challenges. Although the State may very well have race-neutral and nondiscriminatory reasons for its challenges, we conclude that a remand for a Batson hearing is necessary in light of the many levels of judicial scrutiny that occur when a defendant is convicted of a capital offense and sentenced to death.
Accordingly, we remand this case to the trial court for that court to conduct a Batson hearing and to make written findings regarding Whatley's allegations. If the prosecution cannot provide race-neutral reasons for its use of peremptory challenges against black veniremembers, Whatley shall be entitled to a new trial. See, e.g., Lewis v. State, 24 So.3d 480 (Ala.Crim.App.2006), aff'd, 24 So.3d 540 (Ala.2009). The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 84 days after the release of this opinion. The return to remand shall include a transcript of the Batson hearing and the trial court's written findings of fact.
REMANDED WITH INSTRUCTIONS.
WINDOM, J., recuses herself.
1
The appellant, Donald Dwayne Whatley, was convicted of murdering Pravinbhai “Pete” Patel during the course of a robbery, an offense defined as capital by § 13A–5–40(a)(2), Ala.Code 1975. The jury, by a vote of 10 to 2, recommended that Whatley be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Whatley to death. This appeal followed.
On October 1, 2010, we remanded this case to the circuit court for that court to conduct a Batson2 hearing and to make findings of facts concerning the State's use of its peremptory strikes to remove black veniremembers. See Whatley v. State, 146 So.3d 437 (Ala.Crim.App.2010). The circuit court has complied with our instructions and has filed its return to remand.
The State's evidence tended to show the following: On the morning of December 29, 2003, Kenneth McCall, an employee of Austal Crosby Joint Venture, went to his work site under a bridge in Mobile and discovered the victim's body lying on the ground near the entrance gate to the work site. He telephoned emergency 911. The state medical examiner, Dr. Kathleen Enstice, testified that Patel died of “multiple traumatic injuries” that included numerous injuries to his head, neck, sternum, and shoulder. Dr. Enstice testified that the injuries to his face were consistent with a beating, that the injury to his neck was consistent with strangulation, and that the injuries to his upper body were...
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