Avery v. State

545 So. 2d 123, 1988 Ala. Crim. App. LEXIS 761
CourtCourt of Criminal Appeals of Alabama
DecidedDecember 30, 1988
StatusPublished
Cited by60 cases

This text of 545 So. 2d 123 (Avery v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avery v. State, 545 So. 2d 123, 1988 Ala. Crim. App. LEXIS 761 (Ala. Ct. App. 1988).

Opinion

545 So.2d 123 (1988)

Larry AVERY
v.
STATE.

5 Div. 348.

Court of Criminal Appeals of Alabama.

March 22, 1988.
On Return to Remand December 30, 1988.
Rehearing Denied February 24, 1989.
Certiorari Denied May 19, 1989.

*124 Greg Ward, Lanett, for appellant.

Don Siegelman, Atty. Gen., and Charles W. Hart III, Asst. Atty. Gen., for appellee.

Alabama Supreme Court 88-671.

PATTERSON, Judge.

The appellant, Larry Avery, was indicted and convicted for committing the offense of theft of property in the first degree. He was sentenced, as a habitual offender, to life imprisonment.

Avery, a black male, contends that, in exercising its peremptory jury strikes, the prosecution was motivated by racial bias, and that consequently he is entitled to a *125 new trial under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The record establishes that the prosecution used 12 strikes to strike 12 blacks on the venire and that no black sat on the jury. The record also reflects an explanation by the prosecution for each of its strikes against a black venireperson.

In reviewing the reasons given by the prosecution, the trial court did not have the benefit of the guiding principles of Branch v. State, 526 So.2d 609 (Ala.1987) (as modified on rehearing, December 4, 1987), for the trial occurred prior to our supreme court's decision in Branch. While this court is not automatically required to remand for additional consideration under the guidelines of Branch, where the trial court has already conducted a Batson hearing, e.g., Shelton v. State, 521 So.2d 1035 (Ala.Cr.App.1987), cert. denied, 521 So.2d 1038 (Ala.1988), we find that the instant circumstances warrant additional consideration under the Branch guidelines. See Scales v. State, 539 So.2d 1069, 1073 (Ala. Cr.App.1988) (Bowen, P.J., dissenting). Several of the prosecution's explanations appear to be somewhat tenuous, being based on such intangibles as "body language," "negative attitude," and "demeanor." These explanations require close scrutiny. Branch, 526 So.2d at 629, n. 16. Moreover, "intuitive judgment or suspicion by the prosecutor is insufficient to rebut the presumption of discrimination." Id. at 623 (citing Batson, 476 U.S. at 97, 106 S.Ct. at 1723). In addition, several strikes were based on "age." The Branch court considers these to be basically "group-based" strikes. Id. at 626, n. 13. Thus, we find that the prosecution's explanations should be reviewed in the context of the entire jury selection proceedings and, particularly, the prosecution's exercise of all its strikes.

Accordingly, we remand the cause with directions for the trial court to review again the proceedings conducted before it, using the guidelines of Batson and Branch. In carrying out this responsibility, the court may or may not conduct an additional hearing. The court is to file findings of fact and conclusions of law with this court.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

I.

This case was remanded to the trial court with instruction to review its proceedings concerning the selection of the jury, in the light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and the guidelines of Ex parte Branch, 526 So.2d 609 (Ala.1987). We left the decision as to whether an additional hearing should be held to the discretion of the trial court, and the trial court chose not to hold such a hearing. The trial court reconsidered its denial of appellant's motion to quash the jury panel for the state's alleged racial discrimination in the selection of the jury and, finding no evidence of racial discrimination in the jury selection process, reaffirmed its previous ruling. The trial court's order, which embodies its findings in this regard, has been filed with us, and we consider it as a return to our remand. For a better understanding of this matter, we set out the pertinent part of this order, as follows:

"The above-styled cause was remanded for reconsideration of the Court's ruling in regard to a motion filed alleging race-based striking by the State in violation of the principles of law set forth in Batson v. Kentucky in light of Branch v. State and Shelton v. State [, 521 So.2d 1035 (Ala.Cr.App.1987), cert. denied, 521 So.2d 1038 (Ala.1988) ]. The Court agrees that the State's explanations of its strikes citing body language, demeanor and negative attitude seem on their face to be somewhat tenuous. However, after a review of all of the facts and circumstances and the Court's own recollection of the jury voir dire process by both the State and defense, the Court is satisfied that the State did not use race as a basis for using its peremptory strikes. The Court cannot specifically identify the members of the jury panel who exhibited negative *126 body language or demeanor. At the same time the Deputy District Attorney who conducted voir dire was very close to the jury due to acoustical problems with the Chambers County Courthouse. The Court did notice that some of the jurors seemed to respond more favorably toward one side or the other. Some of the jurors who seemed very uninterested toward the State's questions seemed more receptive to defendant's attorney.
"Later, during a hearing on defendant's Batson motion, the Court was satisfied with the State's explanation of its peremptory strikes based on its own observation of voir dire and on the demeanor of the Deputy District Attorney who explained the State's strikes. The Court is completely satisfied of the honesty of the Deputy District Attorney. Consequently, the Court reaffirms its ruling denying defendant's motion to quash."

In the instant case, appellant is black and the victim white. The prosecution used 12 of its peremptory strikes to exclude all blacks from the jury venire. Appellant objected on the ground that the prosecutor had used her strikes to systematically exclude blacks from the jury solely because of their race. The objection was timely. The trial court did not expressly rule that a prima facie case of discrimination had been established by appellant, but required the prosecution to explain its peremptory strikes. After the prosecutor explained her 12 black strikes, the trial court overruled appellant's objection and denied his motion to quash the jury panel.

We follow the rule that, when the prosecution's explanations for its strikes are of record, we will review the trial court's findings, even though there has been no express finding by the trial court that a prima facie case of discrimination has been established. Currin v. State, 535 So.2d 221 (Ala.Cr.App.1988). See also United States v. Forbes, 816 F.2d 1006 (5th Cir.1987). From the record in this case, we can fairly conclude that the inquiry into the prosecution's explanations implied such a finding and shifted the burden of justification to the prosecution.

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545 So. 2d 123, 1988 Ala. Crim. App. LEXIS 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avery-v-state-alacrimapp-1988.