Williams v. State, 6 Div. 426

• Decision Date: 18 February 1988
• Docket Number: 6 Div. 426
• Citation: 534 So.2d 372
• Parties: Jeffery WILLIAMS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 372

534 So.2d 372

Jeffery WILLIAMS v. STATE.

6 Div. 426.

Court of Criminal Appeals of Alabama.

Feb. 18, 1988.

On Return to Remand Aug. 23, 1988.

Rehearing Denied Sept. 20, 1988.

Appeal from Circuit Court for Jefferson County; Joseph Jasper, Judge.

Lawrence B. Sheffield, Jr., of Sheffield & Sheffield, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Alexandra Webb, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Jeffery Williams was charged in four separate indictments with first degree robbery, rape, sodomy and kidnapping. He was found "guilty as charged" by the jury in each of the four cases and sentenced to 99 years' imprisonment on each charge.

Prior to trial, appellant's counsel challenged the use by the district attorney of Thereafter, the district attorney endeavored to give his explanation for his use of such strikes.

certain peremptory challenges in which "four blacks out of seven strikes" were used to remove certain black individuals from the jury venire. (TR 18-19).

Since this cause was tried, however, the Supreme Court of Alabama has laid down certain guidelines in the case of Preston Branch v. State, 526 So.2d 609 (Ala.1987), modified on rehearing (December 4, 1987), which are applicable to the case at bar.

Of the nine guidelines listed by the Supreme Court of Alabama in Preston Branch, supra, at least four are applicable to the case at bar.

Preston Branch establishes certain standards for the trial courts to use in determining whether or not a prima facie case of purposeful discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) has been established.

In accordance with the foregoing decisions and, also, with Jackson v. State, 516 So.2d 768 (Ala.1986), this cause is remanded to the trial court to conduct proceedings consistent with the guidelines and standards adopted in the Branch and Jackson opinions. The trial court is instructed to have the appellant and his counsel present at such hearing and require the State of Alabama, through its district attorney, to set forth its reasons in using its peremptory challenges to remove the black persons shown by the record in this cause.

The appellant and his counsel shall be given an opportunity to respond.

Following such hearing, a due return shall be filed in this court showing the testimony taken in circuit court on this question and the findings and conclusions of the trial judge, by written opinion, with reference to the evidence developed at such hearing. Branch, supra.

The trial court is instructed to file its findings of facts and conclusions, together with its return, in this court within a reasonable time after the entry of this remand.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

ON RETURN TO REMAND

TYSON, Judge

On original appeal, this court remanded this case for the trial judge to determine, under the guidelines of Ex parte Branch, 526 So.2d 609 (Ala.1987), whether vel non the appellant established a prima facie case of racial discrimination, and if so, to proceed according to the guidelines set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, supra.

The appellant does not challenge the sufficiency of the evidence in this cause; thus, the facts will be briefly stated.

On April 26, 1986, the prosecutrix and her boyfriend were parked near the Birmingham, Alabama airport. The appellant entered the vehicle and pulled the prosecutrix's boyfriend out of the automobile. The appellant then struck him on the head with an object and pushed him into the trunk of the automobile.

The appellant then got back into the vehicle. The appellant made the prosecutrix perform oral sex on him and then had sexual intercourse with her. The appellant asked the prosecutrix for money. The prosecutrix, under force, then gave the appellant $20 (twenty dollars). The appellant took the prosecutrix's rings and her boyfriend's ring.

I

The appellant contends that the trial judge erred in overruling his objection to the petit jury based on the use by the State of its peremptory strikes to remove four blacks from the jury venire.

On return to remand, the trial judge issued the following findings:

"After hearing, this Court is of the opinion that a prima facie case has not been made under Batson, supra."

"....

"Under the guidelines as specified in Ex Parte Preston Branch, supra, this Court has made the following determinations: That the district attorney challenged, by use of peremptory challenges, black jurors with the same or similar characteristics as the white jurors who were struck. Further, that black jurors remained on the jury that subsequently tried these matters.

"The nine guidelines as specified in Branch, supra, will be discussed individually, or referred to individually, by this Court.

"Number One, the Court makes the following finding: that the first guideline is not applicable, as shown by the transcript on remand, Pages R-3 through R-9.

"The Second Guideline was established, in that four of six peremptory challenges were used to strike black jurors. However, the Court is satisfied with the race-neutral reasons given by the deputy district attorney, as shown in transcript on remand, R-3 through R-9. This Court would also like to cite the case of Funches v. State, 518 So.2d 781 (Feb. 10, 1987), cert. quashed, Ala.S.Ct., January 22, 1988.

"The Third Guideline, the Court makes the following finding: that there has been no evidence as to past conduct of the deputy district attorney in using peremptory challenges to strike all blacks from the jury venire. As to this guideline, the Court would refer to the transcript on remand, R-21, wherein the Court made the finding from personal knowledge of this Court in dealing with the deputy district attorney that this guideline did not apply.

"The Fourth Guideline, as specified, the Court well recalls questions asked by the district attorney, and they do not amount to desultory voir dire, that the questions of the deputy district attorney were connected with the main subject, and they constituted a definite plan or purpose.

"The Fifth Guideline, as specified, the Court makes the following finding: it is not applicable, as shown by the race-neutral reasons given by the deputy district attorney in R-3 through R-9. Since Branch, supra, was decided by the Alabama Supreme Court, the Court of Criminal Appeals have (sic) decided the Funches v. State, supra, more specifically, at Page 783.

"The Sixth Guideline, the Court makes the following finding: that there was no disparate treatment of members of the jury venire with the same characteristics.

"The Seventh Guideline is not applicable, in that the deputy district attorney did not use disparate examination of members of the venire.

"The Eighth Guideline, the Court makes the following finding: is not applicable, and would again cite the race-neutral reasons, supra, of the deputy district attorney.

"The Ninth Guideline, the Court makes the following finding: is not applicable, in that the deputy district attorney used all of her peremptory challenges.

"Although it was not specified in the hearing, in reviewing the other strikes of the district attorney, the Court would take notice that two of the white strikes had ZIP Codes in the general area of the scene referred to in the cases at bar, one ZIP Code being 35215, and the other being 35217, a Postal ZIP Code map of this area having been introduced by the defendant.

"There was no evidence of a pattern of strikes used to challenge black jurors, such as striking all of the black jurors. The State was entitled to seven strikes; the State struck four blacks and three whites. Blacks did remain on the jury that ultimately tried these matters. Further, that all challenges or strikes were used by the State of Alabama and the defendant.

"This Court was impressed with the statement of the district attorney in strikes of prospective black jurors, in that she used a peremptory challenge as to a prospective juror because of his appearance and demeanor. Surely, Batson v. Kentucky, supra, and the appellate courts of the State of Alabama are not implying that an attorney, whether it be prosecutor or defendant's attorney, cannot rely on appearance and demeanor of prospective jurors in exercising their right to a peremptory challenge. It has long been the law of this State, and the United States as a whole, that jurors, in determining the credibility, believability of witnesses, may take into consideration a witness' appearance and demeanor. Surely, attorneys, in exercising peremptory challenges, have a right, also, to rely on appearance and demeanor exhibited, with other reasons as given by the district attorney.

"This Court is satisfied that the district attorney has come forward with race-neutral reasons, as shown by the transcript, as to each peremptory challenge exercised in striking prospective jurors.

"The ultimate goal of any Trial Court, Appellate Courts, and even the Supreme Court of the United States, is now, and has always been, to see that a defendant, and the people, in criminal cases receive a fair and impartial trial. One criteria as set out for reversal of other cases has been, had not a certain event occurred, then the result would have been different.

"This Court is of the opinion that the defendant in these cases received a fair and impartial trial, justice having been accomplished, and regardless of whom the jurors were, the result would have been the same.

"One learned scholar defined 'Peer' as meaning 'Citizens of the same general area and community as the defendant.' This Court is satisfied that the jury in these cases, both black and white, put aside their race and decided the issues on the facts and evidence introduced during the trial.

"Out of the venire, the percent of blacks prior to...