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01/13/95 MARK ALLEN GAFFORD v. STATE

January 13, 1995

MARK ALLEN GAFFORD
v.
STATE



Appeal from Butler Circuit Court. (CC-94-31). Edward McFerrin, TRIAL JUDGE.

Released For Publication January 16, 1996.

McMILLAN, Judge. All Judges concur.

The opinion of the court was delivered by: Mcmillan

McMILLAN, JUDGE

The appellant, Mark Allen Gafford, was convicted of murder, a violation of § 13A-6-2, Code of Alabama 1975.

The appellant's appointed counsel on appeal has filed a "no-merit" brief, pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), stating that he has diligently reviewed the record and can find no error harmful to the substantive rights of the appellant. Nevertheless, appellate counsel has raised the following issues as possibly having some merit:

"I. Whether the court erred in finding no prima facie Batson [violation] was shown.

"II. Whether the trial court erred in refusing to instruct the jury on criminally negligent homicide.

"III. Whether the State failed to properly notify the defense that defendant would be sentenced pursuant to the Habitual Felony Offender Act.

"IV. Whether defendant's written statement to the police was inadmissible, because it may have been incomplete and/or involuntary."

Other than the argument concerning Batson v. Kentucky, we agree with appellate counsel that the record contains no issues that could be deemed meritorious on appeal. However, the trial court was incorrect in denying the appellant's Batson motion based solely on a comparison of the percentage of blacks on the venire with the percentage of blacks who served on the jury.

The record reveals that 8 of the 39 veniremembers were black. The State struck three of the eight black veniremembers, which left five blacks to serve on the jury. The trial court ruled that "based on the racial makeup of the jury venire ... there has not been a prima facie case of discrimination made."

Recently, the Alabama Supreme Court, in Ex parte Thomas, 659 So. 2d 3 (Ala. 1994), addressed the question whether a defendant can establish a prima facie case solely on the fact that a prosecutor used a large number of his peremptory challenges to strike black veniremembers. In Thomas, the court expressed disapproval of the following dicta in Harrell v. State, 571 So. 2d 1270, 1271-72 (Ala. 1990), cert. denied, 499 U.S. 984, 113 L. Ed. 2d 736, 111 S. Ct. 1641 (1991): "when the evidence shows only that blacks were struck and that a ...


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