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09/02/94 EX PARTE WILLIE MCNAIR (IN WILLIE MCNAIR

September 2, 1994

EX PARTE WILLIE MCNAIR (IN RE: WILLIE MCNAIR
v.
STATE OF ALABAMA)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Montgomery Circuit Court, CC-92-2589, Henry Circuit Court, CC-90-086, Court of Criminal Appeals, CR-90-1556). S. Edward Jackson, Trial Judge.

Released for Publication December 7, 1994. As Corrected February 17, 1995. Second Correction.

Houston, Hornsby, C. J., and Almon, Shores, Steagall, and Ingram, JJ., concur. Maddox, J., concurs specially.

The opinion of the court was delivered by: Houston

HOUSTON, JUSTICE.

Willie McNair was indicted and convicted in Henry County for the capital offense stated in Ala. Code 1975, § 13A-5-40(a)(2), involving the murder and robbery of 68-year-old Ella Foy Riley. In a unanimous decision, the Court of Criminal Appeals on January 21, 1994, following three remands, affirmed McNair's conviction and death sentence, and it later overruled his application for rehearing. See McNair v. State, [Ms. CR-90-1556, July 24, 1992; August 13, 1993; September 30, 1993; and January 21, 1994] So. 2d (Ala.Crim.App. 1992), for a detailed statement of the facts and a Discussion of the procedural history of this case. We granted certiorari review pursuant to Rule 39(c), Ala.R.App.P.

The Court of Criminal Appeals correctly resolved the issues discussed in its several opinions. We find it necessary to write to only three of those issues -- whether McNair was entitled to a new trial based on the holding in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986); whether McNair was entitled to a new trial based on the fact that one of the trial court's bailiffs, who had had contacts with the jury, was permitted to testify as a prosecution witness during the guilt phase of the trial; and whether there was sufficient evidence to support the trial court's finding of the aggravating circumstance set out in § 13A-5-49(8).

Relying on Batson v. Kentucky, supra, McNair contends that the prosecutor engaged in purposeful racial discrimination in removing blacks from the jury venire during the guilt phase of the trial. The record shows that there were 64 members of the venire from which McNair's jury was selected. Eighteen of those members were black. The prosecutor used 11 of his 26 peremptory strikes to remove blacks. Seven blacks served on the jury.

Although the trial court made no initial finding that McNair had established a prima facie case of racial discrimination, it nonetheless required the prosecutor to state his reasons for the strikes. The prosecutor's reasons for striking the 11 blacks, as noted by the Court of Criminal Appeals, were as follows:

"1) Boatwright -- 'has a misdemeanor in the past' and based on the recommendation of assistant district attorney Durrell Whiddon, 'who knows everybody.'

"2) Brackin -- was born in 1962.

"3) Brady -- was born in 1966.

"4) Chitty -- his brother had recently been convicted for 'selling.' Chitty and his brother lived at the same residence.

"5) Ford -- criminal violations and anti-law enforcement.

"6) Kelly -- based on information from law enforcement that he was '"unstable per family members," that he was not a stable individual in relationship in his demeanor, appearance, or actions.'

"7) Leonard -- born 1908, '"slow, slow, doesn't pay attention,"' 82 years old.

"8) Marsh -- based on Whiddon's recommendation which was based on Whiddon's 'knowing him, his reputation in the community.'

"9) McAllister -- based on Whiddon's recommendation 'as not being in Henry County.'

"10) Rivers -- born in 1963, 'we used our last strikes to strike all the people on the list that were born in the 1960's.'

"11) Thomas -- born in 1965."

So. 2d at .

The Court of Criminal Appeals held that no Batson violation had occurred, stating:

"After the prosecutor listed his reasons for these strikes, the trial Judge inquired into the racial composition of Henry County, receiving estimates ranging from 33% to 40% for the black population of the county. Upon determining that 58% of the jury was black, the trial Judge denied the appellant's 'Batson ' objection:

"'I'm going to deny the Batson motion. I think between the number of blacks and the reasons given by the State, and the pattern that no racially relative pattern has been shown as to their strikes.'

"Although some of the State's explanations for its peremptory strikes may be suspect under other circumstances, see Ex parte Bird, 594 So. 2d 676 (Ala. 1991), and despite the lack of 'meaningful' voir dire concerning the basis for the strikes, see Richmond v. State, 590 So. 2d 384, 386 (Ala.Crim.App. 1991), we find no inference of racial discrimination because of the statistical evidence present in this case. Here, blacks composed, at most, 40% of the county population, 28% of the jury venire was black, and 58% of the jury was black.

"'When the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created. Logically, if statistical evidence may be used to establish a prima facie case of discrimination, by showing a discriminatory impact, ... then it should also be available to show the absence of a discriminatory purpose.'

" Harrell v. State, 571 So.2d 1270, 1271-72 (Ala. 1990), cert. denied, 499 U.S. 984, 113 L. Ed. 2d 736, 111 S. Ct. 1641, 111 S.Ct. 1641, 113 L. Ed. 2d 736 (1991). See also Scott v. State, 599 So. 2d 1222 (Ala.Crim.App. 1992)."

So. 2d at .

We agree with the Court of Criminal Appeals that McNair is not entitled to a new trial on the ground that the prosecutor engaged in purposeful discrimination in selecting the jury. However, contrary to the holding of the Court of Criminal Appeals, our decision is not based solely on Harrell v. State. Instead, using a "totality of the circumstances" analysis, see Ex parte Branch, 526 So. 2d 609 (Ala. 1987), and Huntley v. State, 627 So. 2d 1013 (Ala. 1992), we conclude that the trial court's ruling on McNair's Batson objection was not clearly erroneous.

This Court, in Ex parte Thomas, [Ms. 1921804, September 2, 1994] So. 2d (Ala. 1994), *fn1 has rejected the very language in Harrell that was relied on by the Court of Criminal Appeals:

"When the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created. Logically, if statistical evidence may be used to establish a prima facie case of discrimination, by showing a discriminatory impact, ... then it should also be available to show the absence of a discriminatory purpose."

Harrell, 571 So. 2d at 1271-72. This Court held in Thomas that a prima facie case of racial discrimination could be shown even if a greater percentage of blacks sat on the jury than sat on the lawfully established venire. In the present case, however, the trial court required the prosecutor to state his reasons for striking the blacks from the venire and then based its ruling on those reasons, as well as on the racial composition of the jury (58% black) and on its finding of no pattern of racial discrimination on the part of the prosecutor. With the case in this posture, we do not limit our inquiry to whether a greater percentage of blacks sat on the jury than sat on the lawfully established venire. All the evidence of record must be considered in reviewing the trial court's finding on the question of unlawful discrimination. Huntley, supra; Jelks v. Caputo, 607 So. 2d 177 (Ala. 1992).

The record shows that McNair's jury was 58% black. The jury venire was only 28% black and blacks composed, at most, only 40% of the population of Henry County. Although these facts, as previously noted, are not controlling here, they do negate a finding of a disparate impact and they weigh heavily against a finding of discriminatory intent on the part of the prosecutor. Furthermore, the reasons given by the prosecutor for his peremptory strikes do not appear, on their face, to be merely "whimsical" or "fanciful." Branch, supra, at 621.

The prosecutor stated that he had stricken jurors Boatwright and Ford on the ground that he had received information from an assistant prosecutor, Durrell Whiddon, and from law enforcement authorities, that those jurors had criminal histories. Striking a juror with a criminal history is racially neutral. See, e.g., Jackson v. State, 549 So. 2d 616 (Ala.Crim.App. 1989); Powell v. State, 548 So. 2d 590 (Ala.Crim.App. 1988), affirmed, 548 So. 2d 605 (Ala. 1989); Currin v. State, 535 So. 2d 221 (Ala.Crim.App. 1988), cert. denied, 535 So. 2d 225 (Ala. 1988); Nesbitt v. State, 531 So. 2d 37 (Ala.Crim.App. 1987). In this respect, we note that juror Hartzog, a white juror, was struck by the prosecutor on the ground that "he had been involved in many criminal violations and was anti-law." Thus, it appears that the ...


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