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11/10/94 EARNEST MCCLAIN v. STATE

November 10, 1994

EARNEST MCCLAIN
v.
STATE



Lawrence. CC-93-179. Philip Reich, TRIAL JUDGE.

Rule 39(k) Motion Denied December 29, 1994. Rehearing Denied December 29, 1994. Certiorari Denied March 24, 1995. Released for Publication August 8, 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 cause to the trial court with directions that the trial Judge conduct a hearing to determine whether the appellant established a prima facie case of racial discrimination under 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 light of the Alabama Supreme Court's holding in Ex parte Thomas, *fn1 659 So.2d 3 (Ala. 1994).

On return to remand, the trial court filed a written order, the significant portion of which is as follows:

"The Court has considered the arguments of the attorneys, the brief filed, and the transcript of the trial of this case. The Court has also reviewed the biographical information of the venire members contained in the Master Jury Venire List for September 20, 1993 and the responses of the venire members at their initial qualification. The Court further notes that it served as the trial court in this cause and that the Court personally observed and heard the proceedings had and done in the trial of this case and has consulted its own notes and recollection of said proceedings.

"The Court finds that the record reflects that this case was tried by jury beginning September 20, 1993. A jury was empaneled on that day after voir dire by the State and the Defendant. The jury was struck from a list of fifty-four (54) persons, nine (9) of whom were black. The State used seven (7) of its twenty-one (21) strikes against blacks, the Defendant struck one (1) black, and one (1) black male served on the jury.

"The Court has reviewed the cases listed above, along with the cases cited by counsel and has evaluated the evidence in this cause in light of the nine (9) factors set out in Ex parte Branch, supra; the Court has further considered all circumstances surrounding this matter alluded to by both the Defendant and the State.

"The Court makes the following findings with respect to each factor listed in Ex parte Branch.

"1. The Court finds that the Defendant has failed to show that the struck black jurors shared only their race as a common characteristic. In making this Conclusion, the Court has examined the voir dire conducted in this case, noted the responses of the jurors, and has further examined the master jury list for the week of September 20, 1993 at which the said jurors were initially qualified.

"2. The Court finds that there is no pattern of strikes against black jurors on this particular venire. The result of the State's strikes would have left two (2) blacks on the trial jury. It has been held, by way of illustration, that there is no evidence of a pattern of strikes used to challenge black jurors when, for example, having a total of six (6) peremptory challenges, the State used two (2) to strike black jurors and four (4) to strike white jurors and there were blacks remaining on the venire. Ex parte Branch, (supra) at 623.

"3. The Court finds, based on its observations from the bench for the past six (6) years, that the Lawrence County District Attorney's Office nor the particular prosecutors in this case have a history of ...


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