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11/10/94 LINDSEY MACON v. STATE

November 10, 1994

LINDSEY MACON
v.
STATE



Appeal from Jefferson Circuit Court. (CC-91-1498). James Garrett, TRIAL JUDGE.

Rehearing Denied December 29, 1994. Certiorari Denied March 3, 1995. Released for Publication July 5, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Lindsey Macon, was convicted of criminal conspiracy to traffic in cannabis in violation of § 13A-12-204, Code of Alabama 1975. He was sentenced to 16 years in the penitentiary and was fined $25,000.

The state's evidence tended to show that in December 1990, narcotics agents from the Alcoholic Beverage Control Board (ABC) began working in Etowah County with a confidential informant named Johnny Spain. Spain introduced the agents to William Howard Marty, the appellant's codefendant. Marty arranged to purchase 10 pounds of marijuana from the undercover agents for $1,000 a pound. The sale was scheduled to take place on January 4, 1991, at a Birmingham area motel room. Spain, along with two undercover ABC agents posing as a drug dealer and Spain's son-in-law, met Marty at the motel room. A few minutes later, the appellant arrived and was introduced as Doug. The appellant made several telephone calls and then went outside to his car. He returned with a roll of money. The agents produced one pound of marijuana so that the appellant and Marty could inspect it. The agents had left the other nine pounds outside in their vehicle. The appellant and his other codefendants were arrested.

This case exemplifies the dilemma sometimes faced by an appellate court. Although the notice of appeal in this case was filed on August 13, 1993, the completed record was not filed until May 11, 1994. The last brief to this court was filed on September 9, 1994, and we now release this opinion on November 10, 1994. By the time this case was submitted to this court -- September 13, 1994 -- the 280-day period that is the recommended time standard from the filing of the notice of appeal to the release of the opinion had already been exceeded.

The appellant raises two issues on appeal.

I

The appellant first contends that the trial court erred in denying his motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), alleging that the state used its peremptory strikes in a racially discriminatory manner.

In Batson, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits peremptory strikes based solely on race. Batson has been extended to white criminal defendants, Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), to defendants in civil cases, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991), to strikes by defense counsel in criminal trials, Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), and most recently, to gender-based strikes, J.E.B. v. Alabama, ___ U.S. ___, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994). The Alabama Supreme Court has also applied Batson to the striking of white veniremembers. White Consolidated Industries, Inc. v. American Liberty Insurance Co., 617 So. 2d 657 (Ala. 1993).

Once a party makes a timely Batson motion, the movant must establish a prima facie case of discrimination, and, if a prima facie case is established, the opposing party must offer a clear, specific, and race-neutral reason for each strike. Batson, supra. The appellant contends that the state improperly used eight of its peremptory strikes to remove blacks from the jury. The prosecutor gave the following reasons for striking the eight black prospective jurors:

Prospective juror number 35 - This juror was struck because she was unemployed.

Prospective juror number 51 - This juror was struck because ...


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