Fisher v. State

587 So. 2d 1027, 1991 Ala. Crim. App. LEXIS 169
Court of Criminal Appeals of Alabama·Decided March 1, 1991·No. 1 Div. 948·Published·Cited by 53 cases

Opinions

McMILLAN, Judge.

Manson Fisher, Jr., was convicted of capital murder, for the murder of three persons by one act or pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), Code of Alabama 1975. Following a sentencing hearing, the jury returned an advisory sentence of life without parole, and the trial court imposed that sentence.

I

Fisher argues that he was denied equal protection of the law, due process of law, a fair trial, and “various other state and federal constitutional statutory rights” by the prosecutor’s alleged systematic and purposeful exclusion of women from the jury. The record indicates that defense counsel objected at trial to the striking of females from the jury, as follows:

“In addition, the State saw fit to strike twelve women out of the eighteen strikes, which on its face, is a systematic exclusion of women from the jury. And the defendant would allege and suggest to the Court that it simply because this is a capital case that may or may not could result in a sentence of death [sic]. And for that reason only those women were struck.”

The prosecutor responded by stating that because women are “not a racially cognizable group defined under Batson,” the law of that case should not apply. The prosecutor further stated that because the defendant was not female, “even if you extended Batson and applied it,” Fisher would not have standing. Thereafter, the trial court overruled the objection to the striking of females.

[1030]*1030Because the objection addressed the prosecutor’s peremptory strikes and not the composition of the venire or the method for drawing a venire, the appellant’s grounds alleging the denial of a jury composed of a fair cross section of the population, a violation of § 12-16-55, Code of Alabama 1975, and § 12-16-56, Code of Alabama 1975, are waived. See, e.g., Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990).

This court has previously held that the standards of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), do not extend to “gender based” peremptory strikes:

“This court recently addressed this issue in the case of Daniels v. State, [Ms. CR-89-447, September 21, 1990], [581] So.2d [536] (Ala.Cr.App.1990); see also, Stariks v. State, [Ms. CR-89-1113, October 26, 1990], [572] So.2d [1301] (Ala.Cr.App.1990). In Daniels, we held that Batson does not extend to gender-based peremptory strikes.
“ ‘ “Although the Court in Batson relaxed the evidentiary burden of Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)], it offered no intimation that it was extending the equal protection safeguards involving peremptory strikes to gender: ‘By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice.’ 106 S.Ct. at 1724 (emphasis added). While the strictures of the Equal Protection Clause undoubtedly apply to prohibit discrimination due to gender in other contexts, there is no evidence to suggest that the Supreme Court would apply normal equal protection principles to the unique situation involving peremptory challenges.
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“ 1 “Clearly, if the Supreme Court in Batson had desired, it could have abolished the peremptory challenge or prohibited the exercise of the challenges on the basis of race, gender, age or other group classification. A careful examination of the Batson opinion, however, leads this Court to the firm conclusion that, in light of the important position of the peremptory challenge in our jury system, the Court intended Batson to apply to prohibit the exercise of peremptory challenges on the basis of race only.” ’
“Daniels, [581] So.2d [536,] quoting United States v. Hamilton, 850 F.2d 1038, 1042-43 (4th Cir.1988), cert. dismissed sub nom. Washington v. United States, [489] U.S. [1094], 109 S.Ct. 1564, 103 L.Ed.2d 931 (1989), cert. denied, Hamilton v. United States, [493] U.S. [1069], 110 S.Ct. 1109, 107 L.Ed.2d 1017 (1990). We see no reason to depart from this decision here.”

Dysart v. State, 581 So.2d 541 (Ala.Cr.App.1990).

As to Fisher’s claim that he was denied his right to a fair trial due to these strikes, we conclude that he has failed to meet his burden of proof in raising this claim. “The constitutional standards of fairness require that a defendant have ‘a panel of impartial, “indifferent” jurors.’ Irvin v. Dowd, 366 U.S. [717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) ].” Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). Moreover, a defendant has a right to “ ‘a tribunal both impartial and mentally competent to afford a hearing.’ Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038 (1912).” Tanner v. United States, 483 U.S. 107, 125, 107 S.Ct. 2739, 2750, 97 L.Ed.2d 90 (1987). In determining whether an appellant was denied his right to a fair trial, a court must examine the totality of the circumstances. Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977). Where a defendant charges that a practice is “so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial[,] if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 1347, 89 [1031]*1031L.Ed.2d 525 (1986). In the present case, the appellant “has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected.” Dobbert v. Florida, supra, 432 U.S. at 303, 97 S.Ct. at 2303. The jury list contained in the record indicates that seven females served on the jury and that one of the alternates was also a female. The appellant has failed to provide any indication that he was prejudiced by the State’s exercise of peremptory strikes against females on the venire.

II

The appellant argues that the trial court erred in denying his motions for expert assistance or for funds to obtain independent expert assistance and, further, by denying him a hearing on this matter. Specifically, the appellant argues that a psychological or psychiatric expert was needed in order to assist him in developing his defense of intoxication and in order to evaluate his mental state.

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Fisher v. State, 587 So. 2d 1027, 1991 Ala. Crim. App. LEXIS 169 (Ala. Ct. App. 1991).

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