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09/09/94 DONNIE LOUIS MOORE v. STATE

September 9, 1994

DONNIE LOUIS MOORE
v.
STATE



Appeal from Madison Circuit Court. (CC-93-199). Thomas Younger, TRIAL JUDGE.

As Amended. Second Correction February 10, 1995. Rule 39(k) Motion Denied March 3, 1995. Rehearing Denied March 3, 1995. Certiorari Denied May 5, 1995. Released for Publication October 17, 1995.

McMILLAN, Judge. All Judges concur except Montiel, J., Dissents with opinion.

The opinion of the court was delivered by: Mcmillan

McMILLAN, JUDGE

The appellant, Donnie Louis Moore, appeals from a conviction of trafficking in cocaine, a violation of § 13A-12-231, Code of Alabama 1975. He was sentenced to 15 years' imprisonment and was ordered to pay $50,000 to the crime victims' compensation fund.

The appellant argues that the trial court erred in denying his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L. Ed. 2d 69 (1986) motion, based on the State's peremptory strikes of juror P. B., one of two black veniremembers.

The record reveals the following colloquy between the trial court, the prosecutor, and defense counsel regarding the Batson motion:

"[Defense counsel]: Judge, I make a motion to disqualify the panel on the basis of Batson v. Kentucky and its progeny.

"And I would ask that the record reflect that, of the 35 prospective jurors, 33 were Caucasian, two were black. ... That the panel, as a whole, was not representative of the racial makeup of the community at large.

"I would ask to -- ask that the record show that the defendant is black and charged with trafficking in cocaine. And I would ask the record to show that the State struck 50 % of the black jurors, that is, one of the two, that being P. B. And on the basis of that, I would argue that we have made a prima facie showing of bias on the part of the prosecution in the jury selection.

"THE COURT: You have not made a prima facie showing based on percentage, because you have got every juror that is available to you, you have got every juror that is available for you to strike from, there are none others available. The composition of the jury, in order to show racial bias, you would have to show some bias in the selection process. The jurors are selected in this case, in this county, by a computer out of Montgomery. We have nothing to do with the selection of this panel.

"[Defense counsel]: Yes, sir.

"THE COURT: And you have every juror that is available at the time this jury is selected.

"Now, on the question of the 50% striking, I do not believe that the striking of one black would be a prima facie showing, but, nevertheless, be that as it may, let me hear from the State on that point.

"[Prosecutor]: Yes, sir, Judge.

"THE COURT: On both points, as a matter of fact.

"[Defense counsel]: Yes, sir.

"[Prosecutor]: Well, I know what one point I was going to talk about is. The striking of -- I believe her name was P. B., ...


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