Appeal from Wilcox Circuit Court. (CC-92-33). Jack Meigs, TRIAL JUDGE.
Rule 39(k) Motion Denied December 29, 1994. Rehearing Denied December 29, 1994. Released for Publication August 21, 1995.
The opinion of the court was delivered by: Taylor
The appellant, Theodore Spencer, was convicted of the unlawful distribution of a controlled substance in violation of § 13A-12-211, Code of Alabama 1975. He was sentenced to seven years in the penitentiary.
The state's evidence tended to show that on February 3, 1992, the appellant sold crack cocaine to Deputy Tommy Rives, an undercover narcotics officer with the Wilcox County Sheriff's Department. Deputy Rives testified he had been working in the Vredenburgh area of Wilcox County, attempting to buy drugs. He said that he approached the appellant on February 2, 1992, about buying drugs, but the appellant told him he did not have any. The next day, February 3, 1992, Deputy Rives asked the appellant again about buying drugs. The appellant told Rives to follow him. Rives testified that he followed the appellant for a while, and that the appellant then got into the car with Rives. Rives stated that they drove to Albert Kelsaw's house, where the appellant told Kelsaw he "needed something." Kelsaw told them to go down the road and wait. They drove to the designated place. Rives testified that approximately 15 to 20 minutes later Kelsaw drove up behind Rives's car and stopped. Rives gave the appellant a $20 bill. The appellant walked back to Kelsaw's car, where he remained for two or three minutes, and then returned and told Rives that Kelsaw only had $30 rocks. Rives handed the appellant another $10, which the appellant took back to Kelsaw's car. The appellant returned with a white crystal rock, which later proved to be crack cocaine. The appellant was arrested and charged with the unlawful distribution of a controlled substance.
The appellant raises two issues on appeal.
The appellant first contends that the trial court erred in denying his motion 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, ___ U.S. ___, 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 extended Batson to the striking of white veniremembers. White Consolidated Industries, Inc. v. American Liberty Insurance Co., 617 So.2d 657 (Ala. 1993).
After making a timely Batson motion, the moving party must establish a prima facie case. Once a prima facie case is established, the opposing party must offer a clear, specific and race-neutral reason for each strike. Batson. The state used seven out of its eight peremptory strikes to remove blacks. The appellant contends that the state improperly used three of its peremptory strikes to keep blacks off of the jury. In particular, the appellant challenges the striking of prospective jurors 55, 4, and 88. The state told the trial court that it struck prospective jurors 55 and 4 on the recommendation of Wilcox County Sheriff Prince Arnold. Sheriff Arnold told the prosecutor that these individuals had bad reputations in the community for crime and that both had been arrested on several occasions. Also, Arnold told the prosecutor that prospective juror number 88 had been arrested and charged with several crimes in New York. This court held that strikes based on similar recommendations from law enforcement officers did not violate Batson in Currin v. State, 535 So.2d 221 (Ala. Cr. App.), cert. denied, 535 So.2d 225 (Ala. 1988). The Alabama Supreme Court recently held that a strike based on information on a prospective juror's criminal history was race-neutral in Ex parte McNair, 653 So. 2d 353 (Ala. 1994). Furthermore, this court has repeatedly held that striking a juror with a criminal history does not violate Batson. See Jackson v. State, 549 So.2d 616 (Ala. Cr. App. 1989); Powell v. State, 548 So.2d 590 (Ala. Cr. App. 1988); Currin, supra; Nesbitt v. State, 531 So.2d 37 (Ala. Cr. App. 1987).
Therefore, the appellant's rights under the Equal Protection Clause of the Fourteenth Amendment were not violated by the state's peremptory strikes of black jurors.
The appellant next contends that the trial court erred in denying his motion for a ...