740 So. 2d 485 | Ala. Crim. App. | 1999
The appellant, Megail Douglas, was convicted of unlawful possession of a controlled substance, a violation of §
"[Defense counsel]: At this time, Your Honor, the defendant moves for a hearing under Batson v. Kentucky. The defendant, Megail Douglas, is a member of a racially protected class in that he is a black male. The State, in voir dire, struck juror number 23 . . . who is also a black male. And the defense asserts that strike was racially motivated and moves for a hearing pursuant to Batson v. Kentucky.
"The Court: . . . I'm not satisfied that that is a prima facie showing; however, I am going to ask the State to explain the strike of this particular individual.
"[Prosecutor]: Yes, sir, Judge. On Monday, when the entire jury panel was called before Judge Austin, who qualified them initially, I was standing at the bench and [juror number 23] approached the bench and stated to Judge Austin that he had been convicted of a felony theft . . . and based upon that arrest and conviction, that is the reason the State struck juror number 23.
"The Court: All right, sir. So having heard that I will deny your Batson motion. . . .
"[Defense counsel]: I didn't know that [juror number 23] had been convicted of a felony. That information was not brought out in voir dire in this case and that issue was not addressed in any shape, form, or fashion by the State in voir dire in this case. Whatever the State — however the State came about that information, I don't think that is sufficient to show that the strike was not —
"The Court: I'm satisfied that these matters were apparently done in open court at a time when the defendant and counsel were required to be present; so, I'm going to deny the motion."
(R. 15-16.)
Cooper v. State,"In Batson, the United States Supreme Court held that the prosecution violates equal protection when it peremptorily strikes `potential jurors [from the venire] 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 . After the appellant makes a timely Batson motion and establishes a prima facie showing of discrimination, the burden shifts to the state to provide a race-neutral reason for each strike of a minority veniremember. See, e.g., Ex parte Bird,594 So.2d 676 (Ala. 1991). We will reverse the circuit court's ruling on the Batson motion only if it is `clearly erroneous.' Jackson v. State,549 So.2d 616 (Ala.Cr.App. 1989)."
"Where, as in this case, the trial court requires the opposing counsel to state reasons for the peremptory strikes without first requiring that a prima facie case of discrimination be established, this Court will review those reasons and the trial court's ultimate decision on the Batson motion without determining whether the moving party met its burden of proving a prima facie case of discrimination. McLeod v. State,
581 So.2d 1144 (Ala.Cr.App. 1990)."
705 So.2d at 545. See also Taylor v. State,
The appellant argues that the State's explanation was not properly substantiated because the information the prosecutor relied on was not brought out during voir dire examination. However, he did not include in the record on appeal a transcript of the voir dire proceedings. "Therefore, the record does not show what questions were asked of the veniremembers, nor does it show their responses. This Court cannot consider matters not in the record." Yeomans v. State,
Moreover, the prosecutor offered a race-neutral explanation for the strike and explained how he obtained the information upon which he based the strike. Specifically, the prosecutor stated that he struck juror number 23 because the juror had admitted, during the general qualification of the jurors for the week, that he had a prior felony conviction. "We have held that strikes based on previous criminal charges, prosecutions, or convictions of the veniremember . . . are not racially discriminatory as such."Thomas v. State,
Pugh v. State,"The present test for determining whether an informant's tip establishes probable cause is the flexible totality-of-the-circumstances test of Illinois v. Gates, [
462 U.S. 213 ,103 S.Ct. 2317 ,76 L.Ed.2d 527 (1983)]. The two prongs of the test of Aguilar v. Texas,378 U.S. 108 ,84 S.Ct. 1509 ,12 L.Ed.2d 723 (1964), and Spinelli v. United States,393 U.S. 410 ,89 S.Ct. 584 ,21 L.Ed.2d 637 (1969), involving the informant's veracity *488 or reliability and his basis of knowledge, `are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.' Gates,103 S.Ct. at 2329 . . . . Probable cause involves `a practical, common sense decision whether, given all the circumstances, . . . including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' Gates, 103 S.Ct. at 2332."
In this case, the confidential informant had provided information to the drug task force on five prior occasions. Although the previous information had not resulted in any arrests, "[t]he fact that a confidential informant has not supplied information numerous times does not mean that the informant is not reliable." Usery v. State, 668 So.2d at 921 (citing Kirk v.State,
AFFIRMED AS TO CONVICTION; REMANDED WITH INSTRUCTIONS FOR IMPOSITION OF FINE.
Long, P.J., and McMillan, Cobb, and Fry, JJ., concur.
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