Windsor v. StateWindsor v. State
Harvey Lee Windsor was convicted of capital murder under
I
During closing argument, the following exchange occurred:
“[Prosecution]: An intentional act — [the Judge] will tell you a person acts intentionally if his purpose is to cause that result or to engage in that conduct. That intent, whether Mr. Harvey Lee Windsor pulled the trigger of that sawed-off shotgun or whether [Colon] Lavon Guthrie did it, is still there. The intent to kill. Intent is a state of mind — something that is rarely capable of positive proof. I expect the Judge will tell you that. If we could get into that mind over there and put out here what is in there, we would have no reason for a jury.
“[Defense counsel]: Object, that is improper argument.
“[The Court]: Overruled.
“[Prosecution]: I‘ll tell you that he did have the intent to kill. If you find the intent to kill, there can be but one verdict. The state of mind — not capable of positive proof. How can you decide what his intent was? We have to prove — to find him guilty of capital murder — the intent. Intent can be inferred from his actions. Judge Austin will tell you in his charge that the intent can be inferred from his actions. Let‘s look at his actions. What did he do? How do we decide his intent? What are his actions?”
As this Court recently held in Ex parte Musgrove, 638 So.2d 1360, 1368 (Ala. 1993), “When an accused contends that a prosecutor has made improper comments during a closing argument, the statements at issue must be viewed in the context of the evidence presented in the case and the entire closing argument[s] made to the jury. . . .” (citing Washington v. State, 259 Ala. 104, 65 So.2d 704 (1953); Stephens v. State, 580 So.2d 11 (Ala.Crim.App. 1990), aff‘d, 580 So.2d 26 (Ala. 1991), cert. denied, 502 U.S. 859, 112 S.Ct. 176, 116 L.Ed.2d 138 (1991)). In this case, the prosecutor was explaining the difference between felony murder and capital murder, and arguing that the State had proven Windsor guilty of capital murder. In order to do so, the State had to prove Windsor‘s intent to kill.
In this narrow context, it is apparent that the prosecutor was referring not to Windsor‘s failure to testify, but rather to the State‘s own failure to produce direct evidence of Windsor‘s intent. The only way for the State to prove intent, and, therefore, to obtain a conviction on the capital murder charge, was to show that Windsor acted in accordance with an intent to kill. In a certain sense, what the prosecutor said was
Alabama, by statute, specifically protects the privilege against self-incrimination from comment by the prosecution.
In Ex parte Wilson, 571 So.2d 1251, 1261 (Ala. 1990), this Court cited the standard endorsed by the United States Court of Appeals for the Eleventh Circuit:
” ‘[A] statement by a prosecutor is improper if it was manifestly intended to be, or was of such a character that the jury would naturally and necessarily take it to be, a comment on the failure of the accused to testify.’ Marsden v. Moore, 847 F.2d 1536, 1547 (11th Cir.), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988); United States v. Betancourt, 734 F.2d 750, 758 (11th Cir.), cert. denied, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 365 (1984).”
We cannot say that the statement made in this case was intended to be a remark on Windsor‘s failure to testify; nor can we conclude that the natural and necessary reaction of the jury would be to conclude that the prosecutor was referring to Windsor‘s failure to take the stand in his own defense. We hold that the trial court properly overruled the objection to the prosecutor‘s statement.
II
The State‘s next argument for reversal is that the Court of Criminal Appeals erred in holding that any violation of §§
“It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity, in accordance with this article, to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.”
There are two alternative plans and procedures for qualifying, selecting, drawing, summoning, and empaneling juries in Alabama, but each is essentially made up of four distinct stages. Stage one: The jury commission for each county compiles and maintains a master list of all persons in the county who may be called for jury duty. §§
Stage two: Under the first plan, the “jury box” plan, names are drawn from the master list, and the jury commission determines whether the persons drawn are qualified to serve as jurors. §§
Stage three: The next step in the process is designed to determine if the prospective jurors are able to serve on the jury or whether they should be excused. Although “[n]o qualified prospective juror is exempt from jury service,”
Stage four: The parties in the case are allowed to strike a jury by challenging certain persons for cause, or certain others peremptorily, subject, of course, to the restrictions of Batson and its progeny. See, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The question raised in Stage four is, “Do the parties want this person to serve on the jury that will decide their case?” Batson and its progeny are inapplicable to the question before us, because they deal solely with stage four of the process.
Windsor‘s challenge seems to involve a Sixth Amendment fair-cross-section argument, but does not truly rise to the level of a constitutional challenge to the array.1 Instead, he argues that the practice in St. Clair County of excusing jurors by telephone was arbitrary and unlawful and resulted in a “tainted venire.” According to the defendant, certain classes of jurors were underrepresented as a result of what he contends was the unauthorized acceptance of excuses by personnel in the clerk‘s office.2
Exactly which jurors were excused for what reasons is not clear from the record. Apparently, about 30 prospective jurors telephoned the clerk‘s office before the day they were to appear, and were excused either by the clerk herself, one of her assistant clerks, or, in some cases, a judge. According to the clerk, those excused were “students [who] were taking exams and people who were on vacations and elderly people and physically impaired people.” None of these reasons would be inappropriate if a juror presented it to the judge after appearing for jury duty. In fact, nothing in the statutes suggests that
This Court has stated that “it is the duty of the court to hear all the excuses and himself pass upon the same.” Taylor v. State, 249 Ala. 130, 136, 30 So.2d 256, 260 (1947) (citing Title 30, § 38, Code of 1940). However, that statement was made long before the Legislature enacted
The only suggestion of impropriety is found in the following exchange between defense counsel and the clerk at the hearing regarding the unauthorized excuses:
“Q: Could it have been for purely arbitrary reasons that some of these people were deleted from this list?
“A: What do you mean?
“Q: If someone called that was a friend and they called someone in this courthouse to be let off. That could have happened on this list, could it not?
“A: I suppose.
“Q: What I‘m saying, the process is sometimes subject to abuse, is that not correct?
“A: I don‘t think we abuse it.”
This is nothing like the proof of fraud required by
“The initial burden of showing the State‘s purposeful or deliberate exclusion of any identifiable group from participation as jurors rests with the appellant. In the absence of a showing of purposeful systematic exclusion, no reversal is required. . . .” Williams v. State, 375 So.2d 1257, 1266 (Ala.Crim.App. 1979), cert. denied, 375 So.2d 1271 (Ala. 1979) (citations omitted). Windsor has shown nothing to indicate any purposeful and systematic exclusion of any identifiable class of potential jurors, nor has he shown that he suffered any harm as a result of such an alleged exclusion. Although there may be some slight discrepancy between the percentages of certain classes of persons living in St. Clair County and the percentages of those same classes as represented on the venire from which Windsor‘s jury was chosen, no statistical analysis would reveal the invidious discrimination already prohibited by Alabama law.
§ 12-16-56, Ala. Code 1975 .“The purpose of [
§ 12-16-80 ] is to accomplish the salutary purpose of preventing the quashing of venires for mere irregularities and to obviate the resulting delays in the administration of justice. The ‘irregularities’ spoken of refer to trivial administrative errors. They do not refer to such radical departures from the statutoryscheme as to constitute a usurpation of legislative authority.”
Kittle v. State, 362 So.2d at 1273.
The “irregularity” asserted here is the practice of the St. Clair County circuit clerk‘s office of granting what would be perfectly legitimate excuses to prospective jurors without the benefit of a formal delegation of power and a proper designation by the presiding judge. We conclude that the actions of the clerk, her staff, and possibly a judge or two, were not a usurpation of authority, but, instead, were the natural result of an attempt to conform to the spirit, if not the letter, of the statutes.
For the foregoing reasons, we reverse the judgment of the Court of Criminal Appeals and remand the case for action consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, STEAGALL, KENNEDY, INGRAM, and COOK, JJ., concur.