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10/21/94 BRODERICK TYRONE RUTLEDGE v. STATE

October 21, 1994

BRODERICK TYRONE RUTLEDGE
v.
STATE



Appeal from Jefferson Circuit Court. CC-93-2725. James Hard, TRIAL JUDGE.

Rehearing Denied December 29, 1994. Released for Publication April 1, 1995.

Bowen

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

Broderick Tyrone Rutledge, the appellant, was convicted of robbery in the first degree and sentenced to 20 years' imprisonment. He raises three issues on this direct appeal from that conviction.

I

The appellant contends that the prosecutor violated the principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala. 1987), in striking veniremember A. B. The prosecution struck three of the nine blacks on the jury venire. Six blacks served on the 13-member jury. The prosecutor's reason for striking all three blacks, including A. B., was because "they were sitting on Judge Pearson's case this week where it was a[n acquittal] - - and we talked to the prosecutor on that case and it was a robbery and it was a very good case and he asked them all can you base it on an eyewitness and they all said they could. And then they came back and said they needed something more than eyewitness testimony." R. 9-10. The prosecutor informed the trial court that A. B. "refused to talk to the prosecutor [in the other case] at all." R. 11.

The prosecution also struck a white veniremember who had served on that jury. The defense struck the remaining veniremember who had served on that prior jury and who was white. The trial Judge found that "the State has given race neutral reasons for striking the black males on the jury." R. 13.

The fact that a veniremember served on a jury that returned a not guilty verdict or that was unable to return a verdict has been held to be an acceptable reason for striking that veniremember. E.g., Childers v. State, 607 So.2d 350, 352-53 (Ala.Cr.App. 1992) (veniremember previously served on jury that returned a not guilty verdict), affirmed as to this issue, reversed on other grounds, 640 So.2d 16 (Ala. 1994); Powell v. State, 608 So.2d 411, 413 (Ala.Cr.App. 1992) (veniremember previously served on a jury that was unable to reach a verdict and on another jury that returned a not guilty verdict); Whittlesey v. State, 586 So.2d 31, 32 (Ala.Cr.App. 1991) (three veniremembers had previously served on juries that returned not guilty verdicts or that were unable to reach a verdict); Watkins v. State, 551 So.2d 421, 422-23 (Ala.Cr.App. 1988) (one veniremember previously served on a jury that returned a not guilty verdict; another veniremember had previously served on two juries, one criminal, one civil, both of which were unable to return a verdict).

II

The appellant contends that his confession should have been suppressed because it was the product of a promise to drop other cases against him. He also asserts that his mother, "fearful that [he] would be charged with additional robberies, used physical violence to coerce [him] into making a statement of 'what [the police] want to know.'" Appellant's brief at 8.

The robbery for which the appellant was tried occurred at a convenience store on the night of December 21, 1992. The 18-year-old appellant was questioned about this robbery at a Birmingham police station on the morning of February 5, 1993. It appears that police officers transported him in a police car from the apartment he resided in with his mother to the police station. The appellant's mother, Barbara Rutledge Arnold, followed in her own car.

At the police station, the appellant was questioned by Detective Cedrick Stevens and Lieutenant John Fisher. The evidence is undisputed that the appellant initially voluntarily waived his constitutional "juvenile Miranda rights" *fn1 after which he gave a statement characterized by Detective Stevens as a "denying statement" in which he denied any involvement in the robbery. At that point, the appellant's mother was not in the interrogation room; she had not been in the interrogation room at any time previously. Detective Stevens testified that the appellant did not ask for his mother to be present.

After the appellant made the "denying statement," the officers, apparently one at a time, talked with the appellant's mother. It appears that both officers showed her photographs taken by a security camera in the store in which the robbery occurred. She identified the appellant as one of the people in the photographs. See Part III of this opinion.

Ms. Arnold testified that the officers told her that they suspected that the appellant was involved in two other robberies at the same convenience store. She testified that one of the officers told her that because she "was so cooperative" he was going to charge the appellant with only one robbery instead of three. R. 46-47. Detective Stevens admitted telling Ms. Arnold that he believed the appellant was involved in two other robberies at the convenience store, but he categorically denied making any promise or any statement to the effect that if the appellant would confess to one robbery, he would not be charged with the other two robberies. Lieutenant Fisher could not recall if he knew of the other robberies, but denied that he made any promise to either the appellant or to Ms. Arnold with regard to the appellant's confession.

After the police talked with Ms. Arnold, she was permitted to speak with the appellant. Ms. Arnold testified:

"Broderick kept saying he don't know what he's talking about, so I hit Broderick up side the head. . . . And his nose started bleeding. I told him he better tell people what they want to know because you going to be in more trouble than you already is, because [the officer] said you have two or three more robbery cases on you." R. 144-45.

Ms. Arnold said that she told the appellant "he better go on and tell because if they going to throw one [sic] out, that would leave just one." R. 49. She also stated that when she struck the appellant, "the detective told [her she] couldn't do that in there because of child abuse." R. 45.

Detective Stevens testified that when he returned to the interrogation room with the appellant's mother, he asked the appellant,

"'Do you still continue saying the same thing?' [The appellant] said he didn't know . . . nothing about the ...


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