Gennie v. VanHorne

707 So. 2d 266, 1997 Ala. Civ. App. LEXIS 892, 1997 WL 707091
CourtCourt of Civil Appeals of Alabama
DecidedNovember 14, 1997
Docket2960641
StatusPublished
Cited by1 cases

This text of 707 So. 2d 266 (Gennie v. VanHorne) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gennie v. VanHorne, 707 So. 2d 266, 1997 Ala. Civ. App. LEXIS 892, 1997 WL 707091 (Ala. Ct. App. 1997).

Opinions

THOMPSON, Judge.

The plaintiff appeals from a judgment in her favor, contending that the trial court erred in denying her challenge to the racial composition of the jury. We affirm.

Sandra Gennie filed this action on behalf of herself and her daughter, Chasity Gennie, against Hope VanHorne and Allstate Insurance Company, VanHorne’s automobile insurer, for damages based on injuries they had sustained as passengers in an automobile [268]*268accident.1 The case against VanHorne proceeded to trial. After the jury was selected, counsel for Gennie challenged 5 of defense counsel’s 11 peremptory strikes, under the authority of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court conducted a hearing on the Batson motion. In making her challenges, counsel for Gennie alleged that the strikes were motivated by racial discrimination. Counsel for VanHorne responded to the challenges by giving racially neutral reasons for the strikes. After the hearing, the trial .court denied the Batson motion, finding that each challenged strike was based upon a legitimate reason, and the case proceeded to trial. The jury found for VanHorne on Chasity Gennie’s claim and awarded $550 to Sandra Gennie on her own claim. The court entered a judgment on that verdict and entered an order making the judgment final pursuant to Rule 54(b) Ala. R. Civ. P. Sandra Gennie appeals, arguing that the court improperly denied her Batson challenges.

Our Supreme Court applied Batson in Ex parte Branch, 526 So.2d 609 (Ala.1987). That court has determined that “the fundamental object of [Batson arid its ’pr°geny] ... was to prevent purposeful discrimination in the jury selection process, ...” Nix v. Chilton County Comm’n, 667 So.2d 719, 721 (Ala.1995). “So long as there is a legitimate nonracial reason for the challenged strike, the Batson principles are not violated.” Zanders v. Alfa Mutual Ins. Co., 628 So.2d 360, 361 (Ala.1993).

Extending the ruling in Batson to civil actions, our Supreme Court set forth the requirements necessary to establish a prima facie case-of discrimination:

“‘[Wjhen the objecting party shows that “he is a- member of a cognizable racial group” and that the “relevant circumstances raise an inference” that his opponent “has exercised peremptory challenges to remove from the venire members of [the objecting party’s] race,” the objecting party has made out a prima facie case of purposeful discrimination.’ ”

Thomas v. Diversified Contractors, Inc., 551 So.2d 343, 345-46 (Ala.1989) (quoting Fludd v. Dykes, 863 F.2d 822, 829 (11th Cir.1989)). Once a prima facie case has been established, the burden shifts to the proponent of the strike to provide a clear, specific and legitimate nondiscriminatory reason for the challenge. Ex parte Branch, 526 So.2d at 623. “ ‘The “explanation need not rise to the level justifying exercise of a challenge for cause,” ...; rather, it need only be “a neutral explanation related to the particular case to be tried.” ’ ” Thomas, 551 So.2d at 346 (quoting Fludd, 863 F.2d at 829.)

Our Supreme Court has held that the appellate standard of review on Batson rulings is extremely limited. Ex parte Brown, 686 So.2d 409 (Ala.1996). Trial court rulings on Batson challenges will not be reversed unless they are found to be clearly erroneous. Id. The court in Ex parte Brown stated:

“ ‘It is within the sound discretion of the trial court to determine if peremptory challenges of black jurors were motivated by inténtional racial discrimination. The court’s findings in this regard are afforded great deference and will not be reversed on appeal absent clear error.' ”

686 So.2d at 420 (quoting earlier cases).

The trial court found that Gennie had made a prima facie showing of a Batson violation. This finding placed the burden on VanHorne to establish race-neutral reasons for the challenged peremptory strikes.

Gennie contends that the race-neutral reason given in regard to Juror 39, was based on a reason not supported by the record. The reason was that the juror appeared to be hard of hearing. Gennie argues that, if Juror 39’s hearing problem was a genuine concern for VanHorne’s attorney, he should have questioned the juror specifically on this issue. We disagree. A portion of [269]*269counsel’s explanation appears in the record as follows:

“[Juror 39] this morning had to ask the questions be repeated. And on Monday, during examination and identification of the previous case, again was the only juror out of a total of 41 that either couldn’t hear or didn’t understand and appreciate the basic questions asked by the Court in the jury identification. The Court had to ask [Juror 39] each of the questions that all of the other jurors were able to answer on their own. And I think, again, that the defendant would have the right to strike him on the basis that there might be a legitimate concern that [Juror 39], for whatever reason, might not be able to sit as a juror and listen and understand and comprehend all of the evidence and the law that the Court charges on at a later time.”

In contrast, counsel for Gennie points out, in her brief, that the record does not reflect a single instance during voir dire examination prior to the trial in which Juror 39 requested that a question be repeated. We note that counsel for VanHorne had attended the voir dire examination during an earlier trial (as had counsel for Gennie), and that it was during the •prior examination that counsel for VanHorne claims Juror 39 had asked for questions to be repeated. The voir dire examination in the prior proceeding is not included in the record on this appeal; thus, we are unable to review this evidence. Because the record before us lacks a portion of the evidence upon which the peremptory strike was based, we must give deference to the determination of the trial judge, who was present and who personally observed both voir dire examinations. See Bell v. Lowery, 619 So.2d 1380, 1381 (Ala.1993). Additionally we note that a peremptory strike exercised because a juror appeared inattentive and hard of hearing has been determined to be race-neutral as against a Batson challenge. See Nesbitt v. State, 531 So.2d 37 (Ala.Cr.App.1987); Avery v. State, 545 So.2d 123, 126 (Ala.Cr.App.1988).

Counsel for Gennie argues that the peremptory strike eliminating Juror 14 was a Batson violation. Counsel for VanHorne says the strike was proper because, he says, his notes reflected that the juror’s wife worked in a nursing home in a job similar to the one held by the plaintiff and that the juror had experienced a back injury similar to the one suffered by the plaintiff. Counsel for Gennie does not dispute these factors as potential sources for bias, but argues that Juror 14 never commented on his back injury or on his wife’s job during voir dire, and, therefore,, that these reasons given by Van-Home’s counsel were merely a sham or pretext.

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Bluebook (online)
707 So. 2d 266, 1997 Ala. Civ. App. LEXIS 892, 1997 WL 707091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gennie-v-vanhorne-alacivapp-1997.