673 So. 2d 791 | Ala. Crim. App. | 1995
This case was originally assigned to another judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.
The appellant, Lawrence Alexander Jr., was convicted of first-degree burglary, a violation of §
In denying the appellant's motion, the trial court said:
"THE COURT: I note that . . . six of your seven strikes were white males and one was a white female.
". . . .
". . . [I]t looks like that the percentages are still not askewed by the results of the striking. We started out with a ratio of 40.7% minorities on the jury. I have not figured it out as to gender but it looks like it was fairly evenly distributed, two more males on the jury than females. And let me see what we've got now. Well, one more male than female.
"It looks like it's just one more male on the jury now so it looks like there's seven males and six females so the number has not changed as far as the percentages but the number of percentage of minorities is increased to 53.8%.
"I never thought for the life of me 14 years ago when I started this we would be deciding issues on percentages of makeup for a jury. So I don't see that a prima facie case has been made pursuant to [Ex parte] Branch, [
526 So.2d 609 (Ala. 1987)] pursuant to all the other cases, pursuant to Kidd [v. State, [Ms. CR-92-247, March 4, 1994]649 So.2d 1304 (Ala.Cr.App. 1994)], so I don't see that a prima facie case has been made. I don't see a pattern that has developed on this so I'll overrule the motion and let the matter go forward and let the jury be seated as selected."[THE DEFENSE]: ". . . [T]here is not sufficient cause to strike [the three black females] for any overt reason that we can see from our notes and we would renew the motion as to those three under Branch, and what's the other one?
"THE COURT: Kidd was the most recent one. That's a good decision for you to read as far as the Batson ruling. That's probably the best one that's been out so far. So I'll overrule and let the matter go forward."
R. 13-15.
The trial court's denial of the appellant's motion is based on dicta contained in Harrell v. State,
The record does show that, based on Thomas, supra, the appellant offered evidence establishing a prima facie case of gender discrimination and also possibly racial discrimination, and that that prima facie case was not rebutted by the prosecution. "Once a party makes a timely Batson motion, the movant must establish a prima facie case of discrimination, and, if a prima facie case is established, the opposing party must offer a clear, specific, and race-neutral reason for each strike. Batson, supra." Macon v. State,
Cox v. State,"The explanations for the strikes must be 'clear, specific, and legitimate,' 'relate[d] to the particular case to be tried,' and 'nondiscriminatory.' Ex parte Branch,
526 So.2d 609 ,623 (Ala. 1987) (emphasis omitted). In Hernandez v. New York,500 U.S. 352 ,360 ,111 S.Ct. 1859 ,1866 ,114 L.Ed.2d 395 (1991) . . . 'A neutral explanation in the context [of Batson] means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.' The reasons for the prosecution's strikes may upon further inquiry by the trial court prove to be race neutral."
"The failure to articulate a sufficient race-neutral reason for excluding even a single black veniremember may entitle the defendant to a new trial." Ex parte Bankhead,
Thomas allows that facts may exist under which percentages may be relevant to make or rebut a prima facie case of discrimination. The Alabama Supreme Court stated in Thomas:
"In a proper case, the fact that the percentage of blacks [or women] on the jury is higher than the percentage of blacks [or women] on the venire may be a factor to be considered in deciding whether a prima facie case of discrimination has been made or rebutted. However, where, as [in Thomas], the prosecutor has used such a large portion of his strikes against blacks [or women] as to indicate a pattern of striking blacks [or women] from the venire, the fact that the jury has a higher percentage of blacks [or women] than the venire had does not mean that no prima facie case of discrimination has been made."Thomas, supra. The record in the present case shows that such a large portion of the prosecutor's strikes were used to remove females and blacks, as to indicate discriminatory intent in their removal.
Based on the Alabama Supreme Court's ruling in Ex parteThomas, supra, we conclude that the appellant presented a prima facie case of gender and racial discrimination in the prosecution's exercise of its peremptory strikes. Because the appellant presented a prima facia case of gender and racial discrimination, the prosecution must give its reasons for its strikes. We remand this cause to the circuit court for an evidentiary hearing to determine whether the prosecution exercised any of its strikes in a racially discriminatory manner. The circuit court must determine if the prosecution's reasons *795 are race- and gender-neutral. The circuit court is directed to file a return to this court within 90 days of the date of this opinion, and in that return to include a transcript of any testimony taken, as well as the court's written findings and conclusions.
Exhibit number 3 was a photograph taken outside of the burglarized apartment showing the bedroom window through which the burglar attempted to escape and its window screen. There was no objection to exhibit number 3, R. 73. "In order for this court to review an allegation of erroneous admission of evidence, a timely objection must be made to the introduction of the evidence, specific grounds for the objection should be stated and a ruling on the objection must be made by the trial court." Gibbs v. State,
Exhibit number 4 depicted a bent window screen in the window from which the appellant had attempted to escape. The appellant did not state how this photograph was cumulative. However, the trial court compared exhibit number 4 to exhibit number 3 before admitting it into evidence. The record does not support the allegation that the exhibit was cumulative. However, the "[a]dmission of cumulative testimony is within the sound discretion of the trial judge. Even though such evidence may tend to inflame the jury, its admissibility will not be affected if it sheds light upon a material inquiry or illustrates the transaction at issue." Allen v. State,
Exhibit number 15 was a photograph showing the bed and items on the bed in the bedroom where the appellant was apprehended. Exhibit number 16 depicted dresser drawers that had been pulled out of the dresser in the bedroom and items hanging out of the drawers. Exhibit number 17 depicted assorted items thrown on the bed. R. 80-1. The trial court admitted Exhibits 15, 16, and 17 stating that "they show different scenes." R. 83. The exhibits are not included in the record on appeal, therefore, there is no basis on which to find the trial court in error. "Where the record is silent on appeal, it will be presumed what ought to have been done was not only done, but rightly done." Adams v. State,
Therefore, we remand this cause to the circuit court for an evidentiary hearing as directed in part I of this opinion to determine whether the State exercised its strikes in a discriminatory manner.
REMANDED WITH DIRECTIONS.*
All the Judges concur.