Harris v. State

545 So. 2d 146
Court of Criminal Appeals of Alabama·Decided February 24, 1989·Published·Cited by 17 cases

Opinion

545 So.2d 146 (1988)

Robert Wesley HARRIS
v.
STATE.

6 Div. 336.

Court of Criminal Appeals of Alabama.

April 26, 1988.
On Return to Remand February 24, 1989.
Rehearing Denied April 14, 1989.
Certiorari Denied June 16, 1989.

J. Louis Wilkinson and Virginia A. Vinson, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

Alabama Supreme Court 88-958.

BOWEN, Presiding Judge.

Robert W. Harris was convicted for the capital offense involving robbery-murder and sentenced to life imprisonment without *147 the possibility of parole. Three issues are raised on this appeal from that conviction.

I

Harris argues that the State was guilty of racial discrimination in striking eight of the eleven prospective black jurors.

The prosecution used eight of its fifteen peremptory strikes to remove blacks from the jury venire. The State used seven peremptory strikes to remove whites from the jury. Without making a determination whether or not the defense had established a prima facie case of discrimination, the trial judge requested the State to explain its strikes.

The black venire persons struck and the prosecutor's stated reasons for striking them were:

"1. Elton Allen stated on voir dire that the defendant's face `looks familiar' and admitted that he `might know him.' The prosecutor stated that he has `this problem, he keeps that handerchief up to his face and his mouth all the time.... it is very irritating. And I felt like it would be irritating to the jury.'
"2. Harry Davis had an objection to the plea bargain which had been worked out with the co-defendant and stated that he did not want to sit on the jury.
"3. Barney Dunagan said he was opposed to capital punishment, did not want to sit in this case, and had `sat on a criminal-robbery case where he found the person not guilty.'
"4. Dexter Irby was young, single, and had a step brother who had been charged with burglary.
"5. Katie Hart was young, single, does not own her own home, and the prosecutor felt `she would relate' to the defendant.
"6. Willie Odum `knew that two people had already been convicted in this particular case' and the prosecutor `felt like... he might have some problems with the third person being convicted.' He said he knew `of and all about' co-defendant Goodgame.
"7. Doshie Hopkins was young, `was disinterested in the whole procedure,' and `seemed as if [he] might relate to this defendant looking at them being about the same age.' The prosecutor stated that by the way this person rolled his eyes and threw his head to the side whenever the prosecutor looked directly at him, he knew, based upon his considerable jury trial experience, that `that person is not with you, has no use for you and is not going to be with you throughout the trial.' Additionally, the prosecutor stated that Hopkins `seemed evasive, he never answered' questions and there `just wasn't enough information' on him.
"8. Brenda Honeycutt had been charged with a criminal offense."

At the conclusion of his individual explanations, the prosecutor stated that his strikes "are not based on race, they are not based on prejudice, they are not based on bias."

The trial judge found that the prosecutor had "given adequate reasons" and denied the defendant's "Batson motion."

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) "changed a defendant's burden of proof on the issue of the prosecution's using peremptory challenges to systematically exclude blacks from serving on the jury." Ex parte Jackson, 516 So.2d 768, 770 (Ala.1986). Batson, although a "clear break" with past precedent, Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986), made "no attempt to instruct these courts how best to implement our holding today." Batson, 476 U.S. at 99-100, n. 24, 106 S.Ct. at 1724, n. 24.

In this case, the trial judge made commendable and significant efforts to satisfy the Batson requirements. However, his attempts were hindered by the lack of any existing implementation procedures.

In Ex parte Branch, 526 So.2d 609 (Ala. 1987), decided after this defendant's conviction, the Alabama Supreme Court stated, "In this opinion we will set forth our understanding of the Batson decision, and the procedures that we believe must be followed to implement it." Branch, 526 So.2d *148 at 616 (emphasis added). Although a "Branch hearing" will not automatically be required in every case in which a "Batson hearing" has been conducted, see Ex parte Shelton, 521 So.2d 1038 (Ala.1988); Avery v. State, 545 So.2d 123 (Ala.Cr.App.1988); Scales v. State, 539 So.2d 1069 (Ala.Cr. App.1988) (Bowen, P.J., dissenting), Branch commands that this Court proceed with an abundance of caution in that regard.

This case must be remanded for further findings by the trial court under the specific guidelines of Branch. Of all the black prospective jurors struck by the State, juror Hart raises the most concern. With regard to that juror, we make two observations. First, "intuitive judgment or suspicion by the prosecutor is insufficient to rebut the presumption of discrimination. Batson, 476 U.S. at [97], 106 S.Ct. at 1723." Branch, 526 So.2d at 623. Second, "Failure by a prosecutor to explain [or satisfactorily explain] every peremptory strike of black jurors is not necessarily fatal to the prosecutor's ability to rebut a prima facie case; likewise, explanation of most of the strikes on nonracial grounds does not necessarily rebut the inference created by Batson that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate.' "United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986). See also United States v. Forbes, 816 F.2d 1006, 1011 (5th Cir.1987).

In remanding this cause we recognize that, in almost every case, the prosecution tendered racially neutral explanations for challenging black jurors. See United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987) (two sons had been in trouble with the law, prosecutor sensed by juror's posture and demeanor that she was hostile to being in court); United States v. Cartlidge, 808 F.2d 1064, 1070-71 (5th Cir.1987) (young, single, and unemployed proper reason under particular facts of that case; avoided eye contact with prosecutor; brother had been convicted of robbery); United States v. Ratcliff, 806 F.2d 1253, 1256 (5th Cir.1986), cert. denied, 481 U.S. 1004, 107 S.Ct. 1625, 95 L.Ed.2d 199 (1987) (fell asleep during jury selection process); United States v. Mathews,

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