Owens v. State

531 So. 2d 22
CourtCourt of Criminal Appeals of Alabama
DecidedJuly 19, 1988
StatusPublished
Cited by35 cases

This text of 531 So. 2d 22 (Owens 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
Owens v. State, 531 So. 2d 22 (Ala. Ct. App. 1988).

Opinion

531 So.2d 22 (1987)

Charles Edward OWENS
v.
STATE.

4 Div. 536.

Court of Criminal Appeals of Alabama.

April 14, 1987.
On Return to Remand July 19, 1988.

Michael J. Bellamy, Phenix City, for appellant.

Charles A. Graddick, Atty. Gen., and M. Beth Slate and William D. Little, Asst. Attys. Gen., for appellee.

AFTER REMAND FROM THE SUPREME COURT OF ALABAMA

PATTERSON, Judge.

Pursuant to the authority of Ex parte Owens, 531 So.2d 21 (Ala.1987), we remand this case to the trial court with instructions that if the court determines that the facts establish a prima facie showing of purposeful discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 *23 L.Ed.2d 69 (1986), the court must give the prosecutor the opportunity to come forward with race-neutral explanations for his use of the peremptory strikes used to strike members of appellant's race. If the prosecutor is unable to do so, then appellant is entitled to a new trial. See Ex parte Jackson, 516 So.2d 768 (Ala. 1986); Acres v. State, [Ms. 3 Div. 843, February 10, 1987] (Ala.Cr.App.1987). Upon disposition, the court shall make written findings of fact on this issue and make due return to this court.

REMANDED WITH INSTRUCTIONS.

All Judges concur.

ON RETURN TO REMAND

On return to remand, the trial court submitted the following findings:

"This case has been remanded from the Alabama Court of Criminal Appeals for a hearing to be held to determine whether the State's jury strikes violated the precepts of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 [90 L.Ed.2d 69] (1986). A hearing was held at which the defendant and his counsel were present.
"The Court makes the following findings:
"a. 71 persons composed the venire from which the jury was selected.
"b. 16 of the 71 persons were black.
"c. The State had 24 strikes and the selection of one alternate.
"d. The defendant had 23 strikes and the selection of one alternate.
"e. 15 black persons were stricken by the State.
"f. The alternate juror left by the State was black.
"g. The defendant struck 23 whites.
"h. The jury was as follows:
"i. the 12 regular petit jurors were white;
"ii. one alternate juror was black; and
"iii. one alternate juror was white.
"i. The two alternate jurors were excused from service before the jury began to deliberate.
"j. Defendant is black.
"k. Defendant has proven a prima facie showing [of] racial selection of the jury by the State.
"l. The district attorney was given the opportunity to explain his reasons for striking members of defendant's race.
"m. The district attorney has articulated race-neutral explanations as reasons for his strikes."

In reviewing these findings, we recognize that "[w]e may only reverse the trial judge's determination that the prosecution's peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous." Ex parte Branch, 526 So.2d 609 (Ala.1987) modified on reh'g, (December 4, 1987) (quoting this court's opinion in Branch, 526 So.2d 605, 608 (Ala.Cr.App.1986)). See also Lockett v. State, 517 So.2d 1346, 1349-50 (Miss.1987), and cases cited therein. In applying this "clearly erroneous" standard of review, we find the following to be helpful:

"A finding of discrimination, or a finding of no discrimination, is a finding of fact. Anderson v. Bessemer City, 470 U.S. 564, 573 [105 S.Ct. 1504, 1511, 84 L.Ed.2d 518] ... (1985). In a Batson context, the Supreme Court observed that because the trial judge's findings `largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.' Batson, 476 U.S. at 98, n. 21 [106 S.Ct. at 1724 n. 21].... `[F]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses.' Anderson, 470 U.S. at 573 [105 S.Ct. at 1511] ...., quoting F.R.C.P. 52(a).

"`[A] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' Anderson, 470 U.S. at 573 [105 *24 S.Ct. at 1511] ..., citing United States v. United States Gypsum, 333 U.S. 364, 395 [68 S.Ct. 525, 542, 92 L.Ed. 746] ... (1948). Thus, if the trial court's `account of the evidence is plausible in light of the record viewed in its entirety, [an appellate] court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.' Id., [470 U.S. at 574, 105 S.Ct. at 1511]."

State v. Antwine, 743 S.W.2d 51, 66 (Mo. 1987) (en banc), cert. denied, ___ U.S.___, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988). In reviewing the lower court's ruling, we have been mindful that it is not our function to decide this issue de novo, to "duplicate the role of the lower court." Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

However, we find that the court's ruling that the prosecutor articulated race-neutral explanations for his strikes is "clearly erroneous." During the hearing on remand, the following occurred:

"MR. DAVIS [prosecutor]: As to venire person 71, that venire person was a single male who was in the same age class as the defendant, and for that reason we struck him, considering that there were a number of venire persons that we had a desire to protect. We excluded that venire person based on his age and single status.
"...
"MR. BELLAMY [defense counsel]: That was the overwhelming factor in the strike of that juror?
"MR. DAVIS: Judge, I don't know what overwhelming is supposed to mean but that was the primary reason that we struck him.
"MR. BELLAMY: Were there other reasons or other factors that you looked at in striking this particular juror?
"MR. DAVIS: I would say that the fact that he was the same race as the defendant was a factor.
"MR. BELLAMY: The fact that he was the same race was a factor? Can you rate that as to what factor or how did it go on the list?
"MR. DAVIS: No.
"MR. BELLAMY: Can you give it a list—
"MR. DAVIS: I would say it was not the most important factor.
"MR.

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Bluebook (online)
531 So. 2d 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owens-v-state-alacrimapp-1988.