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01/13/95 BETTY WOODS WILSON v. STATE BETTY WOODS

January 13, 1995

BETTY WOODS WILSON
v.
STATE; BETTY WOODS WILSON V. STATE



Appeal from Madison Circuit Court. Appeal from Tuscaloosa Circuit Court. (CC-92-1893). (CC-92-1893.60). Thomas Younger, TRIAL JUDGE.

Rule 39(k) Motion Denied May 5, 1995. Rehearing Overruled May 5, 1995, . As Substituted.

Taylor, Judge. All The Judges Concur Except Patterson, J., Who Dissents With Opinion.

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Betty Woods Wilson, was convicted of hiring someone to kill her husband, Dr. Jack W. Wilson, a Huntsville ophthalmologist, an offense made capital because the murder was "done for a pecuniary or other valuable consideration or pursuant to a contract or for hire." § 13A-5-40(a)(7), Code of Alabama 1975. The appellant waived the jury's participation in the penalty phase of the capital trial and the state recommended that Wilson be sentenced to life without parole. The court accepted the state's recommendation and sentenced the appellant to life imprisonment in the penitentiary without the possibility of parole.

This case was originally submitted to this court after oral argument in February 1994. Before a decision in this case could be released, the appellant filed a petition for post-conviction relief pursuant to Rule 32, Ala.R.Crim.P., collaterally attacking her conviction and sentence. When that petition was filed, submission of the direct appeal in this case was set aside until the trial court acted on the post-conviction petition. The trial court denied the petition in September 1994. A briefing schedule was set for appeal from the post-conviction petition and this case was resubmitted to this court on December 12, 1994. This is one of the reasons for the delay in this case.

This opinion consolidates the appeals from both the appellant's conviction of the crime of capital murder and the court's denial of her petition for post-conviction relief.

The state's evidence tended to show that the body of Dr. Jack Wilson was found in his home on Boulder Circle in Huntsville, Alabama, on May 22, 1992. *fn1 He had been severely beaten around the head, arms, and hands and had been stabbed twice in the chest. A bloody baseball bat was found approximately five feet from the body.

Dr. Wilson died leaving an estate valued at approximately $6,300,000. The terms of Dr. Wilson's will provided that the majority of his estate would go to his wife, the appellant, Betty Woods Wilson.

Dr. Joseph Embry, forensic pathologist for the Alabama Department of Forensic Sciences, testified that Dr. Wilson died as a result of injuries caused by the beating to his head and the stab wounds to his chest. He further testified that there were nine lacerations on Dr. Wilson's head. The lacerations ranged in size from 7/8 of an inch to 2 1/2 inches in length. It was Dr. Embry's opinion that the lacerations were consistent with wounds that would be caused by a baseball bat.

At the time of appellant Wilson's trial, James Dennison White was under indictment for the murder of Dr. Wilson. White, pursuant to a plea agreement, testified that he was hired by appellant Wilson and her sister, Peggy Lowe, to kill Dr. Wilson. He said that he met Lowe at his daughter's school in Vincent, Alabama, where he often did carpentry work. Their friendship developed after he did some carpentry work for Lowe, and they frequently talked on the telephone. White said that one of the reasons he committed the murder was to win Lowe's affection. White said that Lowe once told him while they were talking on the telephone that she loved him. Lowe told White that she had a friend who was in a bad marriage and whose husband mistreated her. She told him that this friend wanted to get rid of her husband. White learned in March 1992 that this friend was in fact Lowe's sister, Betty Woods Wilson. White told Lowe that he had "connections" and could arrange for the murder of Dr. Wilson. Between late March 1992 and early April 1992, Lowe and White discussed having Wilson's husband killed. He testified that they agreed upon a price of $5,000. He said that Peggy Lowe called him later in April to tell him that her sister had given her one-half of the money to give to him.

White said that after he received the money he paid some past due utility bills, deposited $500 in his bank account which had been overdrawn by over $400, and spent the remaining money on his four children. By the end of April he had spent the money. The reason that White was in financial difficulty, he said, was because he had injured his right ankle and left knee at a previous job. White testified that he had an eighth grade education, that he had been married four times, and that he had drug and alcohol problems.

White testified that Lowe started pressuring him to murder Dr. Wilson after he had sexual intercourse with her on May 15, 1992. Lowe told him that if he did not murder Dr. Wilson, she would have to repay her sister. He stated that he told Lowe that in order to go to Huntsville to commit the murder he needed more money because he had spent the $2,500 she had given to him in April. Lowe told him to go to Lake Guntersville State Park and get some money from appellant Wilson who was at an Alcoholics Anonymous "AA" meeting. Lowe told him to go to Wilson's car, a black BMW, which would be parked near the entrance to the park and retrieve a book entitled The Sleeping Beauty and the Firebird. The car would be unlocked and the book would be on the back seat. The book, about a ballet, would have money in it to finance his trip to Huntsville to murder Dr. Wilson.

White arrived at Lake Guntersville State Park on the evening of May 16, 1992, but the security guard at the entrance gate would not let him enter. He told the guard that he needed to retrieve a book from appellant Wilson's car and that he had come a long distance to get it. The guard told him that he could try to contact Wilson on a pay telephone located at a service station several miles from the park entrance. White went to the pay telephone and called Lowe. Lowe told him to call the front desk at the lodge to try and locate her sister. White left a message for appellant Wilson at the front desk. He then waited by the front entrance and one of the guards brought the book to him. He testified that after he got the money and the book, he went to Huntsville and drove past the Wilson house and then returned to his trailer in Vincent.

White testified that not more than two days after May 16, he received a telephone call from Wilson. Appellant Wilson asked him what was "going on" and why he had not committed the murder. She also told him that she wanted Dr. Wilson murdered before May 24, because she did not want to go on their planned vacation with him. White said that he was unable to get cartridges for his gun. On May 20, 1992, Lowe telephoned him and said that she had the "tool and equipment to do the job." He said that he met appellant Wilson and Lowe at Logan Martin Dam. They were in appellant Wilson's black BMW. Lowe got out of the BMW holding a sweater in her hand. She opened one of the doors to his truck and dropped a .38 caliber revolver, which had been wrapped in the sweater, on the seat. White went back to his trailer, wrapped the gun in a towel, and hid it under some boards behind his trailer.

White stated that he was told that he would receive a telephone call telling him when to commit the murder. Early in the morning of May 21, 1992, he received a telephone call from the appellant. He said that he went to Dr. Wilson's office but decided not to kill him there because there were too many people around. He went to a pay telephone near the office, telephoned Lowe, and talked to appellant Wilson, who was staying at Lowe's house. He told her that he needed some money so that he could spend the night in Huntsville. He said that appellant Wilson told him to meet her at the Chick-Fil-A restaurant at Parkway City Mall in Huntsville around 12:00 that day and that she would give him some money. White said that he stood in line at the Chick-Fil-A restaurant, was waited on by a girl named Christina, got a sandwich, walked outside, and sat down on one of the benches. Wilson also went through the line in the restaurant, walked outside, and handed him a bag that contained an $100 bill.

White then went to K-Mart, purchased a travel kit and some underwear, so that he could spend the night in Huntsville. He then checked into a Ramada Inn. He decided to drive by the Wilson house to "check the layout" of the property. He said that he tried to act like a jogger, although he was dressed in jeans. While he was in the Wilsons' neighborhood he saw a neighbor of the Wilsons doing yard work. He returned to the hotel and called Lowe. The following morning appellant Wilson telephoned him. White told her that she would need to drive him to their house so that no one would see him.

He testified that appellant Wilson met him at the Parkway City Mall around 3:00 p.m. on Friday, May 22, 1992. As he got out of his car to get in her BMW, he saw that she was wearing flowered tennis shoes. He got down on the floor of her car and she drove him to her house. When they pulled into the garage, she handed him $40 and told him where her husband's bedroom was located. Dr. Wilson was not home at this time. White testified that he decided not to use the gun and instead took along some rope. He said that he stayed in the house for what he believed to be several hours waiting for Dr. Wilson to arrive. As he was walking on the landing of the stairs he came face-to-face with Dr. Wilson. They wrestled, he knocked Dr. Wilson down, and he grabbed an object that he later said that he could not identify and started beating Dr. Wilson with it. He testified that after this he "blanked out" and the next thing he remembers is finding himself behind the Wilson house in the woods. He buried a bag containing some clothes in the woods, went back to the house, and had appellant Wilson drive him to his car, which was parked at the mall.

The remaining $2,500 was to be left in Lowe's garage on the Sunday after the murder. He said he went to Lowe's house to get the remaining $2,500, but found no money in the garage.

Numerous witnesses corroborated various details of James White's testimony. Testimony was presented that corroborated his testimony that he received money in April to commit the murder. There was testimony that White, who had no steady job and had had no money for quite some time, had a great deal of money immediately before Dr. Wilson's murder. Linda Bush, head teller at First Bank of Childersburg, testified that on April 27, 1992, White deposited $500 to his checking account. He also made payments on some loans and bought two money orders. In all, he gave Bush over $1,000 in cash. Bush further stated that at the time he conducted the above banking transactions with her as the teller, she noticed that he had some money in his hand wrapped in a money wrapper indicating that it was $1,000. She further testified that James White had made no deposits to his account from January 22, 1992, to April 27, 1992. At the time of his April 27 deposit his account had a deficit balance of over $400.

Shirley Smith, the owner of Smith Grocery store in Vincent, Alabama, where White lived, testified that two weeks before May 22, White came into her store and paid her the amount of two of his checks that had been returned to her marked "insufficient funds."

The state also presented evidence that corroborated James White's testimony that appellant Wilson was unhappy in her marriage and that she wanted Dr. Wilson murdered. There was testimony that the marriage had deteriorated. Appellant Wilson and Dr. Wilson had separate bedrooms, and appellant Wilson had had several extra-marital affairs, one as recently as two weeks before Dr. Wilson's murder. JoAnn Chiri, a technician who worked in Dr. Wilson's office, testified that appellant Betty Wilson was unkind to her husband and that she had made the statement that she would rather be a well respected widow than a divorcee.

E.F. *fn2 testified that he met appellant Wilson at an AA meeting and that they had an affair. He testified that they frequently met at hotels but that they had also met at the Wilson house.

M.A.L., a former friend whom appellant Wilson had met through AA, testified that she ended her friendship with appellant Wilson after she learned that she was using her as an alibi when Wilson went to New York City to meet another man.

Brenda McDowell, Dr. Wilson's bookkeeper, testified that she once saw Wilson in the midst of a rage against Dr. Wilson and that Wilson told her to give Dr. Wilson a "message"; she then made an obscene hand gesture.

Shirley Green, the Wilsons' housekeeper at the time of the murder, testified that the Wilsons slept in separate bedrooms, that appellant Wilson made many derogatory remarks about Dr. Wilson, and that she referred to a colostomy bag Dr. Wilson wore as a result of surgery as his "shit bag." Appellant Wilson told the housekeeper that there were many things about Dr. Wilson that she did not like. She further testified that appellant Wilson frequently had male visitors at the Wilson house.

There was testimony that Wilson had previously inquired about hiring someone to kill Dr. Wilson in 1986. Brenda Cerha testified that appellant Wilson asked her about hiring someone to kill Dr. Wilson. Cerha became friends with Wilson after Cerha married Dr. Wilson's best friend. Cerha's husband committed suicide in 1986. Shortly after Cerha's husband's death in March 1986, appellant Wilson asked Cerha if she killed her husband. Cerha testified that appellant Wilson then stated to her: "I want to kill Jack. Will you help me and do you know how we can do it?" She testified that after this conversation with Wilson, their friendship deteriorated.

There was testimony that corroborated White's account of the occurrences at Lake Guntersville State Park. Keith Tucker, a security guard at the park, testified that on May 16, 1992, White came to the entrance gate and wanted to get a book from appellant Wilson's car. Tucker told him to go to a pay telephone and contact Mrs. Wilson through the front desk at the lodge. Robert Hawkins, another security guard at Lake Guntersville State Park, testified that he accompanied appellant Wilson to her black BMW to get the book. The car was unlocked and the book was in the back seat. Hawkins delivered the book to the appellant, who was waiting at the entrance gate. Similar testimony was given by David Stork, who worked at the front desk of the lodge at Lake Guntersville State Park. Telephone company records confirmed that on May 16, 1992, a 10-minute telephone call was made to Lowe's house from a pay telephone at a store about three miles from the entrance gate to Lake Guntersville State Park.

Other witnesses corroborated many other details of White's testimony. Ron White, manager of Chick-fil-A restaurant at Parkway City Mall where James White said he ate on the day before the murder, testified that on May 21, 1992, an employee by the name of Christina was working at the food counter.

Vince Caruso, an associate at Camelot Music at Parkway City Mall, testified that on May 21, 1992, appellant Wilson bought two compact discs. The store was a two-minute walk from the Chick-Fil-A restaurant.

Karen James, an employee of K-Mart in Huntsville, testified that at 12:24 on May 21, 1992, an individual purchased aftershave lotion, a travel kit, and some men's underwear, and paid for the purchase with a $100 bill.

Gary Houck, manager of Ramada Inn, at which White said he spent the night, testified that James White stayed at the Ramada Inn the evening of May 21, 1992, that he paid cash for the room, and that he made several telephone calls from his room. Telephone records confirmed that White called Lowe. At 5:49 p.m. a one-minute call was made to Lowe's house, and at 8:03 p.m. a six-minute call was made to Lowe's house.

Jim Garrett, a neighbor of the Wilsons, testified that on May 21, at 4:00 p.m., he saw a man, appearing to be a jogger, wearing jeans, go by the Wilson house and stop in front of it.

Mavis Kennedy, Peggy Lowe's next door neighbor, testified that on Sunday, May 24, two days after the murder, she saw White in the Lowe's garage.

A book from a public library was in White's possession at the time of his arrest. It had been checked out of the library by Betty Wilson. The name of the book was The Sleeping Beauty and the Firebird. Police testified that appellant Wilson's gun was found near White's trailer in the place he told police to look for it.

Witnesses testified as to Wilson's conduct on the day of the murder. Peter Coulter, shoe manager at Yeildings department store in Parkway City Mall, testified that on May 22, 1992, at 2:11 p.m., appellant Wilson bought a pair of flowered tennis shoes. JoAnn Williamson testified that appellant Wilson came to her office around 4:00 p.m. to pick up a check. David Williams, a clerk at Whitesport Pharmacy, testified that appellant Wilson was there at 4:30 p.m. to get some prescriptions filled.

Sheila Irby, a neighbor of appellant Wilson's, testified that she saw a man she identified as White limping in the direction of the Wilson house around 5:00 p.m. Irby further testified that she saw appellant Wilson driving toward her house, she thought, at around 5:15 p.m.

N.N., a close friend of Wilson's through their meetings at AA, testified that she called appellant Wilson to see if they could meet earlier than the time that they had arranged to meet that day. Appellant Wilson declined, telling her that she had some shopping to do. N.N. told Wilson that she would like to go shopping with her. Appellant Wilson told her that she would just see her at the meeting around 5:30 p.m.

Belinda Schumann, an acquaintance of appellant Wilson's, testified that Wilson drove her car out of a parking space at the building at which the AA meetings were held at 5:25 p.m. Witnesses testified that Wilson did not arrive at the AA meeting until 6:00 p.m. and that she was not in her usual attire. Appellant Wilson normally "dressed up" for AA meetings, but on that day she was dressed casually and wearing flowered tennis shoes.

Appellant Wilson's defense was that she was trying to help White get into AA. Peggy Lowe testified that the occurrences at Lake Guntersville State Park merely constituted an effort by appellant Wilson to try to give money to White so that he could come to the AA meeting at Lake Guntersville State Park and spend the weekend.

I

Wilson initially contends that there was not sufficient evidence presented to corroborate the testimony of James Dennison White. According to § 12-21-222, Code of Alabama 1975, White's testimony must be corroborated before appellant Wilson could be convicted of capital murder. § 12-21-222 states:

"A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."

Wilson was convicted of capital murder pursuant to § 13A-5-40(a)(7), Code of Alabama 1975, i.e., murder "done for a pecuniary or other valuable consideration or pursuant to a contract or for hire." The corroborative evidence in this case would need to be directed to corroborating the murder for hire aspect of this case, not the actual killing. No one has ever alleged or claimed that Betty Woods Wilson actually bludgeoned and stabbed Dr. Wilson herself.

The state's theory of this case was that appellant Wilson planned the crime, procured and paid someone to carry out the plan, and facilitated the commission of the crime. The charge is murder for hire. The appellant's alleged participation in the crime consisted of procuring and paying someone else to commit the act. We will address the true issue of corroboration, or lack of corroboration, as to her participation. At issue here is whether the state presented sufficient evidence to corroborate White's testimony that he had an agreement with and was paid by the appellant to murder her husband, Dr. Jack Wilson.

Initially, we observe that this court, in reviewing the "sufficiency of the evidence," must view the evidence in the light most favorable to the state. Franklin v. State, 629 So.2d 759 (Ala. Cr. App. 1993); Wells v. State, 619 So.2d 228 (Ala. Cr. App. 1993).

We here set out the law concerning corroborative evidence as previously quoted in our cases:

"The test for determining the sufficiency of the corroborative evidence of the testimony of an accomplice is through a 'subtraction process.' The test is generally stated:

"'(F)irst, the evidence of the accomplice must be eliminated, and then, if upon examination of all other evidence, there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration....'"

McCoy v. State, 397 So.2d 577, 585 (Ala. Cr. App.), cert. denied, 397 So.2d 589 (Ala. 1981).

As further stated in Chevere v. State, 607 So.2d 361 (Ala. Cr. App. 1992):

"'"Corroborative evidence need not refer to any statement or fact testified to by the accomplice. Neither must it be strong nor sufficient of itself to support a conviction. The probative value of the evidence need only legitimately tend to connect the accused with the crime and need not directly do so. Further, corroborative evidence need not directly confirm any particular fact nor affirm each and every material fact testified to by the accomplice. Corroboration may be proven by circumstantial evidence alone."

"' Mills v. State, 408 So.2d [187] at 191 [Ala. Cr. App. 1981)].

"'"The entire conduct of the accused may be surveyed for corroborative circumstances and if from them his connection with the offense may be fairly inferred the requirement of the statute is satisfied. 2 Wharton's Criminal Evidence, § 746.'

" Colvette [v. State ], 568 So.2d [319] at 321-22 [(Ala. Cr. App. 1990)], quoting Moore v. State, 30 Ala. App. 304, 307, 5 So.2d 644, 645 (1941), cert. denied, 242 Ala. 189, 5 So.2d 646 (1942).

"'Corroborate' is defined as to 'strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.' Black's Law Dictionary 344 (6th ed. 1990). The evidence presented in corroboration does not have to be enough standing alone to result in a conviction. The corroborating evidence need not be 'strong.' Andrews v. State, 370 So.2d 320, 322 (Ala. Cr. App.), cert. denied, 370 So.2d 323 (Ala. 1979). See also Reed v. State, 407 So.2d 153 (Ala. Cr. App. 1980), rev'd on other grounds, 407 So.2d 162 (Ala. 1981).

"Section 12-21-222, 'does not require corroborative testimony as to material elements of the crime. . . .' Ex parte Bell, 475 So.2d 609, 613 (Ala.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985), but, the corroborative evidence must 'tend to connect the defendant with the commission of the crime.' § 12-21-222, Code of Alabama 1975. 'The corroboration of an accomplice may be shown by circumstantial evidence.' Kuenzel v. State, 577 So.2d 474, 515 (Ala. Cr. App. 1990), aff'd, 577 So.2d 531 (Ala. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991)."

607 So.2d at 365-66. Further, "'[a] combination of facts may be sufficient to corroborate the testimony of an accomplice even though each single fact, standing by itself, is insufficient.' Jackson v. State, 534 So.2d 689, 691 (Ala. Cr. App. 1988)." Blankenship v. State, 589 So.2d 1321, 1324 (Ala. Cr. App. 1991).

Looking at the combination of the evidence set out above, we hold that there was sufficient evidence corroborating the testimony of the alleged accomplice White to connect Betty Woods Wilson to the crime of murder for hire.

White testified that he had been instructed by Wilson's sister that Wilson would give him some money necessary to cover his expenses in committing the murder by leaving it in a book on the back seat of Wilson's car, which would be parked at Lake Guntersville State Park. He further testified that when he attempted to retrieve the book from the car, guards at the park would not allow him to enter the premises. White contacted Wilson's sister and then telephoned the front desk at the Lake Guntersville State Park Lodge and left a message for Wilson that he was in need of the book that she had. Thereafter, a guard brought the book to White at the park gate.

The state presented evidence corroborating White's testimony regarding what happened at the park. Keith Tucker, a security guard at the entrance to the park, testified that White did in fact attempt to enter the park to retrieve a book from Wilson's car. Tucker would not allow White to enter the park but told him he could telephone the lodge from a pay telephone at a gas station a few miles down the road. Telephone records showed that a collect telephone call was made to appellant Wilson's sister's residence from a Union 76 Station approximately three miles from the park entrance. Robert Hawkins, a security guard inside the lodge, testified that he received a message to contact Wilson and inform her that someone at the gate needed a book that she had. After finding Wilson, he accompanied her to her car, where she retrieved the book. He then carried the book to the gate and gave it to White.

Wilson's participation in the murder was that she paid White to murder her husband. White testified to the events surrounding the payment of expense money by appellant Wilson. The testimony of the guards at the park and the telephone records corroborate White's testimony that Wilson paid him to murder her husband.

Additionally, evidence was presented that Wilson, six years before the murder, had told Brenda Cerha that she wanted to kill her husband. This comment was not a single, isolated incident. When considered in conjunction with the other evidence presented and with other comments made by the appellant -- i.e., that she would rather be a widow than a divorcee -- it is clear that the appellant had a continuing desire to rid herself of her husband.

Furthermore, there was testimony that White had in his possession a considerable sum of cash, at least $2,000, around the time White testified he was first paid $2,500 cash by Wilson to kill her husband. This evidence alone does not prove that he received that money from Wilson; however, when considered in relation to the other evidence, it supports White's testimony that he was paid to murder Dr. Wilson. Considering Wilson's desire to rid herself of her husband, it is legitimate to infer that White obtained the money from Wilson.

As we have previously stated, corroborative evidence does not have to be so strong or sufficient as to support a conviction; it must only connect the accused to the commission of the crime. Chevere, supra. The corroborative evidence detailed above in the facts was sufficient to connect appellant Wilson to the crime of hiring someone to kill Dr. Wilson.

II

Wilson also contends that the court erred in denying her motion based on the United States Supreme Court's holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the United States Supreme Court held that the Equal Protection Clause prohibits the prosecution from exercising its peremptory strikes to remove blacks from a black defendant's jury solely on the basis of their race. In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the Court extended its decision in Batson to the striking of blacks from a white defendant's jury. Batson was further extended to apply to civil cases in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). The United States Supreme Court in Georgia v. McCollum, ___ U.S. ___, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), held that the protections of Batson were also available to defense counsel in criminal trials. The Alabama Supreme Court, in White Consolidated Industries, Inc. v. American Liberty Insurance Co., 617 So.2d 657 (Ala. 1993), further extended the applications of Batson to the striking of white veniremembers. Batson has also been extended to prohibit gender-based strikes. J.E.B. v. Alabama, ___ U.S. ___, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

Specifically, Wilson contends that the court erred in holding that she did not present a prima facie case of racial discrimination. We will reverse a trial court's ruling on a Batson motion only when that ruling is clearly erroneous. Ex parte Branch, 526 So.2d 609 (Ala. 1987).

"A defendant claiming a Batson violation must make a prima facie showing that the prosecution used its peremptory strikes in a discriminatory manner. Jackson v. State, 594 So.2d 1289 (Ala. Cr. App. 1991). Only when the defendant establishes facts and circumstances that raise an inference of discrimination must the state give its reasons for its peremptory strikes. Carter v. State, 603 So.2d 1137 (Ala. Cr. App. 1992)."

Stokes v. State, [Ms. CR-93-26, July 8, 1994] ___ So.2d ___, ___ (Ala. Cr. App. 1994).

A review of the record reveals that the venire included 94 members, 15 of whom were black. Of the state's 41 peremptory challenges, 9 were used to remove black veniremembers. The defense used two of its strikes to eliminate black veniremembers.

The only basis that Wilson gave for her Batson claim was that the state struck 9 of the 15 black veniremembers. The court twice asked the appellant, "Anything else?" before stating that it did not believe that the appellant had presented a prima facie case of discrimination. Thereafter, the state responded to the appellant's motion, arguing that the appellant had not established a prima facie case of discrimination. The court then overruled the appellant's Batson motion.

"In determining whether there is a prima facie case, the court is to consider 'all relevant circumstances' which could lead to an inference of discrimination. See Batson, 476 U.S. at 93, 106 S.Ct. at 1721, citing Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). The following are illustrative of the types of evidence that can be used to raise the inference of discrimination:

"1. Evidence that the 'jurors in question shared only this one characteristic -- their membership in the group -- and that in all other respects they [were] as heterogeneous as the community as a whole.' [People v. ] Wheeler, 22 Cal.3d [258] at 280, 583 P.2d [748] at 764, 148 Cal.Rptr. [890] at 905 [(1978)]. For instance 'it may be significant that the persons challenged, although all black, include both men and women and are [of] a variety of ages, occupations, and social or economic conditions,' Wheeler, 22 Cal.3d at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905, n. 27, indicating that race was the deciding factor.

"2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

"3. The past conduct of the state's attorney in using peremptory challenges to strike all blacks from the jury venire. Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)].

"4. The type and manner of the state's attorney's questions and statements during voir dire, including nothing more than desultory voir dire. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Wheeler, 22 Cal.3d at 281, 583 P.2d 764, 148 Cal.Rptr. at 905.

"5. The type and manner of questions directed to the challenged juror, including a lack of questions, or a lack of meaningful questions. Slappy v. State, 503 So. 2d 350, 355, (Fla. Dist. Ct. App. 1987); People v. Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr. 656 (1986); People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 764, 148 Cal.Rptr. 890 (1978).

"6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., in Slappy, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged. Slappy, 503 So.2d at 352 and 355.

"7. Disparate examination of members of the venire; e.g., in Slappy a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, ...


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