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10/21/94 PHILLIP ALLEN v. STATE

October 21, 1994

PHILLIP ALLEN
v.
STATE



Baldwin. CC-92-731. Pamela Baschab, TRIAL JUDGE.

Rule 39(k) Motion Denied December 29, 1994. Rehearing Overruled December 29, 1994. Certiorari Denied March 24, 1995. Released for Publication August 8, 1995. As Amended December 20, 1995.

Bowen

The opinion of the court was delivered by: Bowen

ON RETURN TO REMAND

BOWEN, PRESIDING JUDGE

On original submission, this Court remanded this case to the trial court with instructions that that court conduct an evidentiary hearing and apply the principles stated in

J.E.B. v. Alabama, ___ U.S. ___, ___, 114 S. Ct. 1419, 1430, 128 L. Ed. 2d 89 (1994), in which the Supreme Court of the United States held that "the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man."

On remand, the trial court, after conducting an evidentiary hearing, set aside the conviction and granted the appellant, Phillip Allen, a new trial, concluding that the State had improperly discriminated against males in the use of its peremptory jury strikes. After finding that the State used 11 of its 15 peremptory strikes to remove males from the jury venire, resulting in a jury of 9 males and 3 females, the trial court concluded that the appellant had established a prima facie case of gender discrimination.

The trial court concluded that the prosecutor did provide gender-neutral reasons for striking 8 of those 11 veniremembers. As to the remaining three, the trial court stated in its order:

"As to the remaining three male jurors struck the State provided the following reasons:

"#20 - Mr. C___ - He was a truck driver and as such would have special knowledge of tractor gear shifts. He was from Barnwell.

"#08 - Mr. Be___ - He was a mechanic and as such would be an expert or 'heavy hitter' on knowledge of gear shifts.

"#14 - Mr. Bo___ - Works for a construction company so was probably familiar with heavy equipment operations and thus by analogy would know more about tractor shifting than the average person.

"The Court found that as to the three remaining jurors either the Defendant offered argument that the reasons given [by the prosecutor for striking those veniremembers] were a 'sham or pretext' or the Court took note on its own initiative that the reasons given were ...


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