PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Russell Circuit Court, CC-92-124, Court of Criminal Appeals, CR-92-320). Paul J. Miller, Jr., Trial Judge. This Opinion Substituted by the Court for Withdrawn Opinion of May 20, 1994, .
As Amended. Second Correction. Third Amendment. Released for Publication August 12, 1995.
Almon, Hornsby, C. J., and Shores, Kennedy, Ingram, and Cook, JJ., concur. Houston, J., concurs in the result. Maddox, J., who did not participate in the original decision, Dissents from the denial of the State's application for rehearing.
The opinion of the court was delivered by: Almon
On Application for Rehearing
The opinion released on May 20, 1994, is withdrawn and the following is substituted as the opinion of the Court.
Addie Lee Thomas was convicted of the murder of her husband and was sentenced to 20 years' imprisonment. The Court of Criminal Appeals affirmed, by an unpublished memorandum (see Thomas v. State, So. 2d (Ala. Crim. App. 1993)); we granted her petition for a writ of certiorari to determine whether a statement in that court's memorandum conflicts with Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and cases following Batson. The question is whether we should reaffirm the principle that "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." Harrell v. State, 571 So. 2d 1270, 1271 (Ala. 1990), cert. denied, 499 U.S. 984, 113 L. Ed. 2d 736, 111 S. Ct. 1641 (1990). Or, as Thomas phrases the issue, may a defendant make a prima facie case of discrimination by showing that the prosecutor used a large number of his peremptory challenges to engage in a pattern of striking blacks from the venire, even though a higher percentage of blacks ultimately sat on the jury than on the venire?
The only facts in the record that are relevant to this case appear in the following Discussion between the defense attorney, the prosecutor, and the Judge:
"MR. KELLY: On behalf of the defendant, Addie Thomas, we would, pursuant to Batson, ... ask the State of Alabama to come forward with neutral reasons for their strikes. In the jury venire, 32, each side was granted 9 strikes with [the] 10[th] strike being alternate. Of the 10 strikes which the State has, they utilized 9 of them to strike members of African-American descent, which is a recognized minority. We would ask the State to come forward with race-neutral reasons for these [strikes]. As the jury is constituted, I believe there are six members of ... African-American descent seated on the jury.
"MR. ESTES: Your Honor, in response the State would contend that the State is not obliged to come forward with race-neutral reasons for its strikes, since the composition of the jury venire is 15 minority and 17 white jurors. The composition of the jury as selected is 50 percent black, and because the composition of the jury is slightly more than the composition of the jury venire in terms of the percentage, the State is not obliged to show race-neutral reasons for any of its strikes. The composition of the jury does not show a prima facie Batson [violation].
"THE COURT: I agree. I would overrule."
The memorandum of the Court of Criminal Appeals states, in pertinent part:
" Affirmed by Memorandum. The judgment of the circuit court is affirmed. The appellant, Addie Lee Thomas, appeals her conviction and her subsequent sentence of twenty years' imprisonment for the murder of her common law husband. Thomas raised two issues on appeal. Thomas first contends that the trial court committed reversible error by not allowing a Batson hearing following the state's use of nine of its ten peremptory strikes against black members of the venire. The original venire pool consisted of 47% black members and the final empaneled jury was 50% black. The trial court did not make a clearly erroneous ruling by finding that a prima facie case of discrimination was not established against the state. See Harrell v. State, 571 So. 2d 1270 (Ala. 1990) (holding that a prima facie case of discrimination is not established merely by the number of peremptory strikes against blacks in cases where the percentage of blacks on the empaneled jury is higher than the percentage of the venire pool)."
In Harrell v. State, 555 So. 2d 263 (Ala. 1989) ("Harrell I "), the Court held that after the prosecutor uses peremptory challenges to remove black veniremembers, the court should hold a Batson inquiry to afford the defendant the opportunity to present a prima facie case of racial discrimination. 555 So. 2d at 267-68.
The circuit court in this case did not deprive the defendant Thomas of an opportunity to put on a prima facie case, but simply held that Thomas had failed to make a prima facie showing of discriminatory strikes and, thus, the court refused to order the prosecutor to give reasons for his strikes.
In Harrell I, this Court granted the State's petition for certiorari review, but affirmed the judgment of the Court of Criminal Appeals, remanding the case for the circuit court to hold a Batson hearing. The Court recognized in Harrell I the problems circuit Judges were facing in struggling with whether a "pattern of strikes" existed in a particular case:
"'The court may be forced to play an often confusing numbers game to decide whether a "pattern" of discriminatory strikes exists. Decisions based upon numbers alone necessarily assume a somewhat arbitrary character and are a major reason for the often contradictory outcomes in lower court decisions.'"
555 So. 2d at 266 (quoting Note, Batson v. Kentucky and the Prosecutorial Peremptory Challenge: Arbitrary and Capricious Equal Protection, 74 Va. L. Rev. 811, 821 (1988)). However, Harrell I cited Ex parte Branch, 526 So. 2d 609 (Ala. 1987), as "setting out certain specific kinds of conduct by a prosecutor that would raise the inference of discrimination under Batson," including "'A pattern of strikes against black jurors on the particular venire....'" *fn1 Harrell I, 555 So. 2d at 266, quoting Branch, 526 So. 2d at 622.
On remand, the circuit court held a hearing and determined that Harrell had made a prima facie case of purposeful discrimination on the part of the prosecutor in selecting the jury. The venire had contained 10 black members; the prosecution struck 5 of them. The circuit court determined that the prosecutor had failed to present race-neutral reasons for striking those five black veniremembers. The Court of Criminal Appeals, on return to remand, reversed Harrell's conviction and remanded the case for a new trial. The State again petitioned for a writ of certiorari, and this Court granted the petition. The Court stated the following in 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 (1990) ("Harrell II "):
"The State ... argues that the following undisputed facts established, as a matter of law, that the prosecutor did not engage in purposeful discrimination when she struck the [five] blacks from the jury venire: 1) The lawfully established venire consisted of 28 people, of whom 10 (35.7%) were black; 2) the prosecutor used 5 of her 8 peremptory challenges to strike blacks and the remaining 3 to strike whites; 3) defense counsel used all 8 of his peremptory challenges to strike whites from the venire; and 4) the jury that was ultimately empanelled consisted of 5 blacks, amounting to 41.7% of the jury (a greater percentage than was on the lawfully established venire), and 7 whites.
"If these were the only facts Harrell relied on to raise an inference of discrimination, we would agree with the State and reverse the judgment of the Court of Criminal Appeals. As we explained in Harrell , a defendant cannot prove a prima facie case of purposeful discrimination solely from the fact that the prosecutor struck one or more blacks from his jury [emphasis in original]. A defendant must offer some evidence in addition to the striking of blacks that would raise an inference of discrimination. 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 [emphasis added]. Logically, if statistical evidence may be used to establish a prima facie case of discrimination, by showing a discriminatory impact, Harrell , 555 So. 2d 263, citing United States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986), then it should also be available to show the absence of a discriminatory purpose."
In Harrell II, the Court pointed out that the defendant presented evidence "that the five blacks who were struck from the venire shared only one characteristic--their membership in the black race--and that in all other respects they were as heterogeneous a group as the community as a whole." 571 So. 2d at 1272. The Court also pointed out that "the prosecutor engaged in a rather limited voir dire," and that "the record failed to show that any of the five blacks responded to the prosecutor's [voir dire] questions in such a way as to give any insight into why they were stricken." Id. Finally, the Court in Harrell II noted that the United States Court of Appeals for the Eleventh Circuit had already held, under the Swain v. Alabama *fn2 test, that the Mobile County district attorney's office, which had brought the charges against Harrell, had a history of discriminatorily striking blacks. Id.
Thus, the emphasized statement near the end of the two paragraphs quoted above from Harrell II was obiter dictum. The Court stated that "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." 571 So. 2d at 1271. In Harrell's case, that was not the only thing shown, as the Court proceeded to illustrate.
Although the principle stated in Harrell II appears logical from one perspective, i.e., if statistics can be used to show the presence of a discriminatory impact, then they can also be used to show the absence of such an impact, this principle has had the inappropriate effect of preventing a finding of a prima facie showing of discrimination, even where, as here, the prosecutor used a significant number of his strikes to remove blacks from the venire. See, e.g., Scott v. State, 599 So. 2d 1222 (Ala. Crim. App. 1992), cert. denied, 599 So. 2d 1229 (Ala. 1992), overruled on other grounds, Smith v. State, 612 So. 2d 1314, 1316 (Ala. Crim. App. 1992); Hood v. State, 598 So. 2d 1022, 1023 (Ala. Crim. App. 1991); cf. Demunn v. State, 627 So. 2d 1005, 1006 (Ala. Crim. App. 1991), aff'd, 627 So. 2d 1010 (Ala. 1992); Huntley v. State, 627 So. 2d 1011, 1011-12 (Ala. Crim. App. 1992), aff'd, 627 So. 2d 1013 (Ala. 1993).
In Batson, the United States Supreme Court held:
"Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges 'for any reason at all, as long as that reason is related to his view concerning the outcome' of the case to be tried, ... the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors ...