Williams v. State

• Decision Date: 12 February 1993
• Docket Number: CR-91-1259
• Citation: 634 So.2d 1034
• Parties: Charles Walter WILLIAMS, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1034

634 So.2d 1034

61 USLW 2547

Charles Walter WILLIAMS, alias v. STATE.

CR-91-1259.

Court of Criminal Appeals of Alabama.

Feb. 12, 1993.

Rehearing Denied March 26, 1993.

Dissenting Opinion of Judge Bowen

March 26, 1993.

Certiorari Stricken May 4, 1993

Alabama Supreme Court 1921043.

Samuel Bauer, Hilton Head Island, SC, for appellant.

James H. Evans, Atty. Gen., and Anita Young, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Charles Walter Williams, was convicted after a jury trial of shooting into an occupied vehicle, in violation of § 13A-11-61, Code of Alabama 1975, and was sentenced to 11 years' imprisonment. He raises two issues on appeal.

I

The appellant, who is white, argues that the trial court erred by denying his motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because, he says, the state exercised its peremptory challenges against white veniremembers in a racially discriminatory manner. At trial, after the jury was selected, the following occurred:

"THE COURT: Now does either side have any objection to the way the other side exercised its peremptory strikes?

"MR. BAUER [Defense counsel]: Yes, your honor.

"....

"MR. BAUER: [the prosecutor] used eight of her nine strikes to exclude white people from the jury. The defendant is white. Although the Supreme Court has not recognized the exclusion of white peremptory challenges as unconstitutional, I would like to protect the record in that regard. I do feel that using eight of the nine strikes to strike white people, while black people similarly situated without the issue of race were not struck."

Without deciding whether Batson applies to the striking of white veniremembers, the trial court requested that the state give reasons for its peremptory challenges. The state gave its reasons without objecting or arguing that Batson does not apply to the striking of white veniremembers. The prosecutor explained her strikes of white veniremembers as follows:

No. 22: "She was the woman on the front row. She had thick glasses. During most of the questioning she had her hands on her face. She appeared to be bored. She said her son was involved in a shooting and she didn't want to discuss it. She looked away. She looked up at the ceiling. She looked down. She fidgeted in her seat. I felt that she would not be fair. I gathered she would not give the state a fair trial, much less the defendant."

___

No. 29: "She was the elderly lady with the walker. She appeared not to be with us. During a lot of the questioning she would look and look away. It appeared to me that she was in some pain. I saw that she moved her walker. She was stretching her leg. I felt that she would not be able to sit through a trial. I watched her when she first came in. At the first sidebar, she left. She was in the jury room. She was like the last person to come out. When the first black lady came out, she did not immediately come out. The door was shut and she took her time coming out."

___

No. 1: The prosecutor stated that this veniremember sat on a jury in a rape case where the defendant was found not guilty. She also stated that she believed that this veniremember would not be a "fair candidate" for this case.

___

No. 13: "She was sitting on the back row. She said her husband was a minister. During the voir dire, very quiet. She looked away. She looked to the people sitting next to her, B.H. and M.S. When we asked questions she just didn't appear to be with us."

___

No. 15: "I have got a note; but I didn't finish the note. I said 'talked.' So, she must have said something to the questions as to did she know any of the people involved in the case.... Not officers, but did she know any of the witnesses or anything. I put 'talked to somebody.' I don't have who she talked to. Maybe she talked to some jurors."

___

No. 31: The prosecutor stated that she struck this veniremember because she was unemployed and that she also struck a black veniremember because she was unemployed.

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No. 12: "No reason other than I struck number 31, young white female. I struck her as well. I also struck a young black female. Nothing particular stood out one way or the other."

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No. 30: "He was the guy that spoke with a lisp. His brother was murdered out of town. [Defense counsel] asked him about giving the defendant a fair trial. I saw him look at the defendant. Gave him a funny look. He looked to the woman sitting next to him. He gave the defendant a really hard look. I didn't feel that he would be fair."

___

The court then ruled as follows:

"Oh, I see. Okay. All right. Well, I will say that a surprising number of these are unexplained. There are two for which [there is] no reason at all, ... just body language. So, it makes an iffy kind of situation. The problem is that there weren't but five jurors--five black jurors on the panel anyway. She struck one of them. So, she struck 20 percent black, 20 percent of the blacks. If she really didn't have much reason, it looks to me like [the prosecutor] ran out of reasons to strike people and was just following vague hunches. If you don't have a real strong reason, I don't know why you shouldn't follow vague hunches. I can't really say with only four left--four blacks left, she should have found a vague hunch against one of them instead of somebody else. If this jury had a large percentage of blacks, it would have been more suspicious. This is just sort of [an] iffy situation. Before I would decide on either side's peremptory challenges, I would have a stronger feeling than iffy feeling, therefore, the Batson challenge is denied. But, [defense counsel], I appreciate your making that a matter of record. I do think that the rule cuts both ways."

We interpret the trial court's ruling to be that Batson does apply to the striking of white veniremembers and that the state's explanations, considering all the surrounding circumstances, were race neutral.

The appellant argues that the state improperly exercised its strikes of white veniremembers solely on account of race. Before we discuss whether the state's strikes were based on race-neutral reasons, we must address the issue of whether Batson applies to the striking of white veniremembers. In Batson, the United States Supreme Court held that a prosecutor could not exercise peremptory challenges against black veniremembers solely because of their race. The Court stated the following:

"The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, Strauder [v. West Virginia], 100 U.S. , 305 [, 25 L.Ed. 664 (1880) ], or on the false assumption that members of his race as a group are not qualified to serve as jurors...."

Batson, 476 U.S. at 86, 106 S.Ct. at 1717 (emphasis added; footnote and citations omitted). In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the Supreme Court held that a white defendant has standing to object to the state's unconstitutional exercise of peremptory challenges against black veniremembers and stated the following:

"[T]he Equal Protection Clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race, a practice that forecloses a significant opportunity to participate in civic life. An individual juror does not have a right to sit on any particular petit jury, but he or she does possess the right not to be excluded from one on account of race."

Id. at 409, 111 S.Ct. at 1370 (emphasis added). The Court also stated, "While States may prescribe relevant qualifications for their jurors, see Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), a member of the community may not be excluded from jury service on account of his or her race." Id. at 407, 111 S.Ct. at 1369 (emphasis added; citations omitted).

While blacks, see Batson, 476 U.S. 79, 106 S.Ct. 1712; Hispanics, see United States v. Chinchilla, 874 F.2d 695 (9th Cir.1989); United States v. Alcantar, 832 F.2d 1175 (9th Cir.1987); Native Americans, see United States v. Chalan, 812 F.2d 1302 (10th Cir.1987); and Asians, see Kline v. State, 737 S.W.2d 895 (Tex.App.1987), have been held to be cognizable racial groups for Batson purposes, we have found only two cases in which whites have been held to be a cognizable racial group. In Government of Virgin Islands v. Forte, 865 F.2d 59 (3d Cir.1989), cert. denied, 500 U.S. 954, 111 S.Ct. 2262, 114 L.Ed.2d 714 (1991), the court held that the appellant's trial counsel was ineffective for failing to preserve his Batson claim because, under the circumstances, the appellant, who was white, was a member of a cognizable racial group in the Virgin Islands, the population of which is predominantly black. In Roman v. Abrams, 822 F.2d 214 (2d Cir.1987), cert. denied, 489 U.S. 1052, 109 S.Ct. 1311, 103 L.Ed.2d 580 (1989), the court held that whites are a cognizable group for purposes of a fair cross-section claim. The Roman court stated the following:

"It is plain that the exclusion of entire racial groups from jury service for reasons wholly unrelated to the ability of the individuals to serve as jurors in a particular case is squarely within these parameters. Though such wholesale exclusion is more often practiced against minorities or traditionally disadvantaged members of society, the exclusion of groups normally in the majority is no less objectionable for it arbitrarily deprives that group of a share of the responsibility for the administration of justice, deprives the defendant of the possibility that his petit jury will reflect a fair cross section of the community, and gives every appearance of unfairness."

822 F.2d at 228 (emphasis added). Although Forte is distinguishable from the instant case, the above-quoted passage from Roman best illustrates our concern with the...