Whitley v. State

• Decision Date: 21 August 1992
• Docket Number: CR-91-655
• Parties: Chester Leon WHITLEY, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 354

607 So.2d 354

Chester Leon WHITLEY, Jr. v. STATE.

CR-91-655.

Court of Criminal Appeals of Alabama.

Aug. 21, 1992.

Rehearing Denied Sept. 18, 1992.

Certiorari Denied Nov. 25, 1992

Alabama Supreme Court 1911993.

Richard M. Kemmer, Jr., Phenix City, for appellant.

James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Chester Leon Whitley, Jr., was convicted of murder, a violation of § 13A-6-2, Code of Alabama 1975. Pursuant to the Habitual Felony Offender Act, § 13A-5-9(c)(3), Code of Alabama 1975, he was sentenced to life imprisonment without parole.

The state's evidence tended to show that during the early morning hours of April 28, 1991, the appellant and the victim, Herbert Earl Adcock, were riding in an automobile and drinking alcohol with the appellant's wife, the appellant's brother, and Kathy Myers, the owner of the car. The car eventually stopped on Hitchetty Road, a deserted dirt road in Russell County, so that the appellant could urinate. As everyone got out of the car, the appellant asked Myers to give him her knife. She complied. Eventually, the appellant and the victim exchanged heated words and started fighting. Each pulled out a knife. The appellant grabbed the victim's knife with his right hand, cut him under the arm, and then continued to stab the victim until he fell on the road. The victim was stabbed 27 times: two times on the right shoulder, 9 times on the front of his body, and 16 times on his backside. The appellant and his brother dragged the victim's body to the edge of the woods. The body was discovered by turkey hunters later that morning.

On May 1, 1991, the appellant's brother spoke with the Russell County Sheriff's Department regarding the victim's death. After further investigation, the police issued arrest warrants for the four people who occupied the car on the night of the killing, including the appellant. On May 3, the appellant turned himself in and confessed to the stabbing.

The appellant presents five issues on appeal.

I

Initially, the appellant contends that the circuit court erred when it denied his Batson v. Kentucky ¹ motion, arguing that the prosecution violated the Equal Protection Clause of the United States Constitution by exercising its peremptory strikes in a racially discriminatory fashion.

The United States Supreme Court held in Batson that the Equal Protection Clause prohibits the prosecution from using peremptory strikes to remove "potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." 476 U.S. at 89, 106 S.Ct. at 1719. The protections of Batson have since been extended to white defendants. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Ex parte Bankhead, 585 So.2d 112 (Ala.1991). Once the appellant timely moves pursuant to Batson and makes a prima facie showing of discrimination, the burden shifts to the prosecution to produce race-neutral reasons to support each strike of a minority veniremember. See, e.g., Avery v. State, 545 So.2d 123 (Ala.Cr.App.1988). The circuit court's ruling on the appellant's Batson motion will be reversed only if it is clearly erroneous. Jackson v. State, 549 So.2d 616 (Ala.Cr.App.1989).

Here, both the appellant and the victim were white. Of the original 35 veniremembers, 12 were black. The state exercised 7 of its 11 peremptory strikes to remove blacks from the venire, while the appellant peremptorily removed 1 black veniremember. Four blacks served on the jury. After the appellant made a prima facie showing of discrimination, the prosecution explained its rationale for each strike. Once the court determined that the prosecution's strikes were exercised systematically among blacks and whites, the Batson motion was denied.

At trial, the prosecution cited the following to support each strike of a minority veniremember:

Juror number 106: Was a "child support client" in the district attorney's office and was unemployed.

Juror number 115: Was 20 years old, single, and unemployed.

Juror number 118: Had twice served on juries that returned acquittals in criminal cases.

Juror number 121: Had three prior misdemeanor convictions and a prior felony charge.

Juror number 148: Had a co-worker who had been prosecuted by the district attorney who tried this case. Juror was present at co-worker's trial and appeared friendly with him.

Juror number 160: Had five prior misdemeanor convictions.

Juror number 162: Indicated during voir dire that her uncle had been a defendant in a murder case and that the victim in that case had been her cousin.

The fact that a veniremember previously served on a jury that rendered a not-guilty verdict is a race-neutral reason for exercising a peremptory strike. See, e.g., Whittlesey v. State, 586 So.2d 31 (Ala.Cr.App.1991); Heard v. State, 584 So.2d 556 (Ala.Cr.App.1991). Where a veniremember has prior misdemeanor convictions or prior or pending felony convictions or charges, his removal from the venire has been upheld as race-neutral. See, e.g., Yelder v. State, 596 So.2d 596 (Ala.Cr.App.1991); Sims v. State, 587 So.2d 1271 (Ala.Cr.App.1991), cert. denied, 502 U.S. 1098, 112 S.Ct. 1179, 117 L.Ed.2d 423 (1992); Whittlesey, supra; Cowan v. State, 579 So.2d 13 (Ala.Cr.App.1990). Also, striking a veniremember because he or she has a family member, friend, or associate who was a defendant in a criminal case is a race-neutral reason. See, e.g., Fisher v. State, 587 So.2d 1027 (Ala.Cr.App.), writ denied, 587 So.2d 1039 (Ala.1991), cert. denied, 503 U.S. 941, 112 S.Ct. 1486, 117 L.Ed.2d 628 (1992); Bass v. State, 585 So.2d 225 (Ala.Cr.App.1991); Stephens v. State, 580 So.2d 11 (Ala.Cr.App.1990), aff'd, 580 So.2d 26 (Ala.), cert. denied, 502 U.S. 859, 112 S.Ct. 176, 116 L.Ed.2d 138 (1991); Currin v. State, 535 So.2d 221 (Ala.Cr.App.), writ denied, 535 So.2d 225 (Ala.1988). Cf., Scott v. State, 599 So.2d 1222 (Ala.Cr.App.), writ denied, 599 So.2d 1229 (Ala.1992) (potential hostility or prejudice against district attorney's office due to well-publicized investigation of former supervisor is race-neutral reason for exercising peremptory strike).

Removal of a veniremember who attempts to receive child-support through the district attorney's office is also based on considerations other than race. See, e.g., Heard, supra. See also, Bedford v. State, 548 So.2d 1097 (Ala.Cr.App.1989) (juror had prior contacts with district attorney). Finally, the prosecution's exercising peremptory strikes to remove young, single, and unmarried persons from the venire is race-neutral. See, e.g., Stephens, supra; Harris v. State, 545 So.2d 146 (Ala.Cr.App.1988); Currin, supra; Mathews v. State, 534 So.2d 1129 (Ala.Cr.App.1988).

The appellant also argues that the prosecution did not exercise its strikes systematically, leaving some whites on the jury who possessed characteristics cited by the state as rationale for the removal of similarly situated black veniremembers. More specifically, the appellant points to juror number 128, a white male, whose uncle was prosecuted for receiving stolen property and whose grandmother was murdered. The appellant argues that juror number 162, a black female stricken because her uncle was once a defendant in a criminal case and because her cousin was murdered, was thus removed solely on the basis of her race.

At trial, however, the state explained that juror number 162 was removed because her uncle was a defendant in a murder case. Further, juror number 162 was not removed because she had a relative who had been murdered, but because her uncle had been tried for killing that relative. The prosecution cited the fact that juror number 128 had a relative that had been murdered as the motivating reason why it did not strike him from the jury. It is logical, not racist, that a prosecutor in a murder case would want to have sitting on the panel a juror who would tend to be favorable to the state. See, generally, Bailey & Rothblatt, Successive Techniques for Criminal Trials § 6:35 (2d ed. 1985). See also, 5 Am.Jur.Trials Selecting the Jury--Plaintiff's View § 3 (1966).

After reviewing the facts as recited above, we find no evidence of discrimination in the prosecution's use of its peremptory strikes. Thus, the circuit court did not err in denying the appellant's Batson motion.

II

The appellant also contends that the circuit judge erred when, upon the jury's request for additional written definitions of "murder" and "manslaughter," he gave them oral instructions that omitted portions of the original charges. More specifically, the appellant contends that the judge erred in not reinstructing them on "heat of passion" and "mistaken self-defense," arguing that these are alternative definitions of manslaughter.

At trial, the judge instructed the jury on the elements of murder and the lesser included offense of manslaughter. When the appellant objected to the court's refusing his requested charges on "heat of passion" and "mistaken self-defense," the judge recalled the jury and thoroughly explained each of these principles.

Later, the jury requested additional, written definitions of "murder" and "manslaughter." After informing the jury that he could not give them written instructions to take to the jury room, the judge orally defined murder and manslaughter, explaining the latter as follows:

"Manslaughter, under Alabama law, is this: A person commits the crime of manslaughter if he recklessly causes the death of another person. A person acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk that a particular result will occur. The risk must be of such a nature and degree that to disregard it would be a gross deviation from the standard of conduct that a reasonable person would have in that situation.

"To convict of manslaughter, the State must...