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01/13/95 RAYMOND EUGENE BROWN v. STATE

January 13, 1995

RAYMOND EUGENE BROWN
v.
STATE



Appeal from Montgomery Circuit Court. (CC-87-1464).

Montiel, Judge. All the Judges concur.

The opinion of the court was delivered by: Montiel

ON RETURN TO REMAND

MONTIEL, JUDGE

Raymond Eugene Brown was convicted of four counts of capital murder for the killings of Linda LeMonte and Sheila Smoke. The appellant was sentenced to death. For a recital of the facts in this case, see Brown v. State, 571 So. 2d 345 (Ala. Crim. App. 1990), writ quashed, 571 So. 2d 353 (Ala. 1990).

On April 27, 1990, this Court reversed the trial court's judgment because the voir dire examination of the jury venire was insufficient to allow the trial court to make an independent determination as to whether the jurors' impartiality had been affected by the extensive publicity surrounding this case. See Brown, supra. On June 10, 1991, the United States Supreme Court vacated this Court's judgment and remanded the case to this Court for further consideration in light of Mu'Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). See Alabama v. Brown, ___U.S.___, 111 S.Ct. 2791, 115 L.Ed.2d 966 (1991). On July 26, 1991, this Court again reversed the trial court's judgment, holding that both the facts and the applicable law in this case are distinguishable from Mu'Min. See Brown v. State, 586 So. 2d 991 (Ala. Crim. App. 1991). On April 10, 1992, the Alabama Supreme Court reversed this Court's judgment, concluding that trial court had "acquired adequate information from the venire to make an independent determination as to whether the jurors would be impartial" and remanded the case to this Court. See Brown v. State, 632 So. 2d 14, 17 (Ala. 1992).

On remand, this Court on September 18, 1992, in light of Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), remanded this case to the trial court so that a hearing could be held to determine whether the prosecution could provide racially neutral reasons for the use of its peremptory strikes to remove blacks from the jury. See Brown v. State, 632 So. 2d 17 (Ala. Crim. App. 1992).

Pursuant to this Court's instructions, the trial court held a hearing and required the prosecutor in this case, Jimmy Evans, to give reasons for striking 20 of 23 blacks from the jury venire. Following the hearing, the trial court found that the prosecutor had given racially neutral reasons for each of the State's strikes. This cause is now before this Court on return to remand.

I

In this Court's September 18, 1992 opinion, we held that a prima facie case of purposeful discrimination had been established by the defense based on the fact that the prosecution had used 20 of its 23 strikes to remove blacks from the jury and based on the history of the Montgomery County District Attorney's Office with regard to its use of peremptory strikes to remove blacks from the juries. The State urges this Court to reexamine its finding that the appellant established a prima facie case of discrimination.

The State argues that its pattern of strikes does not provide strong evidence of discrimination. We disagree. Here, there were 24 blacks on the venire. Defense counsel struck one black and the State struck 20 of the 23 remaining blacks on the venire. Thus, the State used 87% of its strikes to remove blacks leaving a jury that was 25% black.

"Statistical evidence may be used to establish a prima facie case of discrimination. In both Ex parte Bird, 594 So. 2d 676 (Ala. 1991), and Ex parte Yelder, 630 So. 2d 107 (Ala. 1992), the prosecution struck substantial numbers of black veniremembers. In Bird, the venire was 36% black. The State used 17 of its 20 (85%) peremptory strikes to remove blacks, leaving a jury that was 8% black. In Yelder, the venire was 31% black. The State used 24 of its 32 (75%) strikes to remove blacks, leaving a jury that was 16% black. With reference to both cases, the Alabama Supreme Court stated: 'The sheer weight of statistics such as these raises a strong inference of racial discrimination requiring clear and cogent explanations by the State in rebuttal.' Ex parte Yelder, 630 So. 2d at 109."

Kidd v. State, [Ms. CR. 92-247, March 4, 1994] ___ So. 2d ___ (Ala. Crim. App. 1994). See also Ex Parte Thomas, [Ms. 1921804, September 2, 1994] ___ So. 2d ___ (Ala. 1994).

The State also argues that the fact that the State struck whites before it struck any blacks is evidence that its pattern of strikes was not discriminatory. This Court rejected this argument Freeman v. State, [Ms. CR. 90-279, May 6, 1994] ___ So. 2d ___ (Ala. Crim. App. 1994).

The State further argues that it is the district attorney's staff, and not the district attorney himself, that has shown a history of discrimination in the use of peremptory strikes. This Court in Freeman also rejected the State's argument that the district attorney is not responsible "for his staff's observation of or failure to observe the requirements of Batson and Branch." Freeman, ___ So. 2d at ___.

During the hearing on the Batson motion, the district attorney stated that his reasons for striking the jurors were based on reconstructed of the notes from when the jury was struck. The district attorney stated that before he strikes a jury, the jury list is divided by the individual characteristics of the potential jurors such as "age, sex, and race." (Record on Return to Remand (R.R.R.) 21.) In this particular case, the district attorney stated that he was trying to compose a jury "tailored to what we were going to do to try to debunk the insanity defense." (R.R.R. 22.) The district attorney stated that he wished to have persons on the jury who were older, mature, married, employed, and had children.

The following are the reasons given by the district attorney for his strikes:

Juror 7 (white male - age 60) was struck because he indicated that he was opposed to the death penalty and that religion was the most important thing in his life.

Juror 145 (white female - age 44) was struck because she had been cited for traffic violations in 1987 and because her husband was a psychologist.

Juror 127 (black female - age 20) was struck because she was single, young, and had no children. Her employment status was unclear. There was a question as to whether she worked at the Gayfers department store's warehouse. The district attorney had information that she worked at the Alabama Beverage Control Board warehouse and several investigations had been conducted there. The district attorney felt that "if she had worked at that A.B.C. warehouse, there was a possibility during the course of that investigation that she might have been interviewed and there might be some hostility to the office based on the investigation." (R. 34.)

Juror 37 (black female - age 26) was struck because she was single and had no children and because she had a minor history of traffic violations.

Juror 44 (black female - age 26) was struck because the district attorney believed she had a larceny conviction in 1987. Further, she worked at a prison and the district attorney's office was conducting an investigation of prisons at the time.

Juror 148 (black female - age unknown) was struck because she had a minor traffic violation and because she had a master's degree in psychology.

Juror 40 (black female - age 27) was struck because was single, young, and had no children. She spoke in a loud and strong voice and the district attorney felt that she would not be easily persuaded by others.

Juror 79 (black female - age 28) was struck because she was single, relatively young, and unemployed.

Juror 46 (black female - age 33) was struck because she had been convicted of fraud.

Juror 134 (black female - age 30) was struck because she was single and had no children.

Juror 121 (black female - age 35) was struck because she was employed at Brockway Glass and the district attorney's office had conducted a major investigation of alleged embezzlement by employees. The district attorney did not feel "it was in the best interest of the State to have someone who may have been employed when there was an extensive employee embezzlement there." (R. 42.)

Juror 72 (black female - age 40) was struck because she had been convicted of fraud.

Juror 87 (black male - age 42) was struck because he had a minor traffic offense and a "child restraint violation." The district attorney did not know what the nature of that violation was and he had "no way of finding out at that particular time." (R. 43.)

Juror 117 (black male - age 22) was a college student. He was struck because he was young, unmarried, and had no children. The district attorney could not determine if he was employed.

Juror 143 (black male - age 21) was struck because he was single and had no children. He also had a traffic violation for driving on the wrong side of the road and the district attorney could not determine if that violation the result of a plea on a charge of driving under the influence.

Juror 137 (black male - age 21) was struck because he was young and had no children and because he stated that religion was very important in his life. The district attorney also stated that he was unsure whether this potential juror would have trouble following the Judge's instruction because he was a minister.

Juror 70 (black female - age 55) was struck because she was single and had no children and it was unclear whether she worked in the mental health facilities at Baptist Hospital.

Juror 2 (black female - age 48) was struck because she had a relative who had been convicted of larceny as a result of prosecution by the district attorney's office, and they lived at the same address. Furthermore, she indicated that she was a widow who did not want to be on the jury because she could not afford to take time off work.

Juror 19 (black female - age 61) was struck because her record showed a 1957 violation of the prohibition law and because she had a loud voice.

Juror 28 (black female - age 52) was struck because she indicated that religion was the most important thing in her life and because her husband was a minister.

Juror 71 (black female - age 45) was struck because she was single and the district attorney had no information on her employment status or whether she had children.

Juror 144 (white female - age 39) was struck because she was a trained labor arbitration advocate and because of her religious beliefs.

Juror 22 (black female - age unknown) was an alternate juror. She was struck because she had traffic violations and because she worked at Baptist Hospital.

The trial court issued the following order after the hearing:

"Brown was convicted in this court on March 29, 1988, and sentenced to death by electrocution for the double murder of a woman and her child after having previously being convicted of murder. Both the defendant and the victims were white and this case carried no racial overtones.

"The record in this case shows that the venire from which the jury was struck consisted of 74 persons, 9 of which (including 1 black person) were excused from service by this court, and 7 of which (including 2 black people) were struck for cause. Three black persons actually served on the trial jury in this case and one of the alternate jurors was also black. Of the state's strikes in this case 20 of 23 were black. Of the defense strikes 1 of 23 was black.

"After hearing and fully considering the legal arguments and factual data presented in this hearing, which the record shows, the Court finds that the State through its Attorney General, Jimmy Evans, has articulated clear, cogent, and sound reasons for its peremptory strikes, all being racially neutral. In making this determination this court has specifically considered the demeanor of the sworn witness for the State, evidence at the hearing, and this court's knowledge of these proceedings as trial Judge in this case.

"In addition, this court notes for the record in this case, that in the opinion of this Court, this defendant in all respects received a fair trial in this matter.

"In Conclusion, the Court finds that the reasons stated by the State in using its peremptory strikes were/are racially neutral, and permissible under the cases of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), Ex parte Jackson, 516 So. 2d 768 (Ala. 1986), Ex parte Branch, 526 So. 2d 609 (Ala. 1987) and Bui v. State, [Ms. 191509, November 13, 1992] 627 So. 2d 855 (Ala. 1992)."

Recently, this Court in Freeman stated,

"'The trial court's ruling on a Batson motion will be reversed only if clearly erroneous. Nance v. State, 598 So.2d 30, 31 (Ala.Cr.App. 1992); Jackson v. State, 594 So.2d 1289 at 1294 (Ala.Cr.App. 1991). "It is well settled that the ruling of the trial court on a Batson hearing is entitled to substantial deference and will not be disturbed on review unless it is 'clearly erroneous.'" Ex parte Bankhead, 625 So.2d 1146 (Ala. 1993). In Ex parte Branch, 526 So.2d 609, 625-26 (Ala. 1987), the Alabama Supreme Court approved the use of a "clearly erroneous" [standard] for reviewing the factual findings by the trial court in Batson proceedings. In Bui v. State, 627 So. 2d 855 (Ala. 1992), the Alabama Supreme Court said, "'the reviewing court's inquiry . . . shall not be restricted by the mutable and often overlapping boundaries inherent within a Batson -analysis framework, but, rather, shall focus solely upon the propriety of the ultimate finding of discrimination vel non.'

Merriweather v. State, 629 So.2d 77, 88 (Ala.Cr.App. 1993). The United States Supreme Court, in Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859, ___, 111 S.Ct. 1859, 1866 (1991), explained the rationale for this standard of review, as follows:

'Deference to trial court's findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will "largely turn on evaluation of credibility" 476 U.S., at 98, n. 21 [106 S.Ct. at 1724, n. 21]. In the typical challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lie "peculiarly within a trial Judge's province." Wainwright v. Witt, 469 U.S. 412, 428 [105 S.Ct. 844, 854, 83 L. Ed. 2d 841] (1985), citing Patton v. Yount, 467 U.S. 1025, 1038 [104 S.Ct. 2885, 2892, 81 L. Ed. 2d 847 (1984). '"

Freeman, ___ So. 2d at ___.

In Bui v. State, 627 So. 2d 855 (Ala. 1992), the Alabama Supreme Court held that a reviewing court must look at all of the circumstances to determine whether a trial court's Conclusion that the State's reasons for its strikes are race-neutral is clearly erroneous. The Supreme Court held that, in light of the circumstances of the case, the failure of the State to offer an explanation for one peremptory strike did not mandate a finding that a Batson violation existed. The following facts were considered in Bui :

"That Bui, who is Vietnamese, was tried for these murders before the United States Supreme Court's decision in Powers ; that there was almost a five-year delay in requiring the prosecutors in this case to come forth with the reasons for striking blacks from the venire; that race-neutral reasons were given for striking eight of the nine black persons removed from the venire by the state; that this case does not involve a black defendant or a black victim; that one black person served on the jury (the prosecutors had the opportunity to strike this black person also, but did not); that the defense struck one black person from the venire; and that one of the most distinguished black circuit Judges in this state was not convinced that the state's strikes were racially motivated."

Bui, 627 So. 2d at 860. In this case, the appellant, who is white, was tried before the Powers decision; almost five years had passed between the time the prosecutor struck the jury and the time he proffered his reasons for his strikes; race-neutral reasons were given for most of the prosecutor's strikes; neither the defendant nor the victims in this case are black; three blacks served on the jury in this case; the defense struck one black person from the jury; the same trial Judge that presided over Bui presided over this case and found that the State's strikes were not racially motivated.

In Justice Adams's Concurring opinion in Bui, he stated:

"The trial Judge's determination in each case that peremptory challenges were not racially motivated is, ordinarily, entitled to considerable deference. Batson v. Kentucky, 476 U.S. 79, 98 n 21, 106 S.Ct. 1712, 1724 n. 21, 90 L.Ed. 2d 69 (1986). Such a determination is one circumstance on which the State is entitled to rely on appeal. The weight to be accorded this circumstance by the reviewing court is significantly magnified if the trial Judge himself shares the race of the challenged veniremembers.

"After extensive testimony and consideration of the circumstances surrounding the State's voir dire in this case, Judge Price, an experienced black circuit Judge and former prosecutor, emphatically rejected the defendant's allegations of discrimination. In doing so, he specifically referred to his natural, preemptive 'sensitivity' to this issue.

"Judge Price's unique experience and perspective weigh heavily in favor of the State's argument."

Bui, 627 So. 2d at 860-61 (emphasis in original).

While some of prosecutor's explanations for striking some of the jurors are somewhat weak, we cannot say that Judge Price's determination that the prosecutor's strikes were not racially motivated was clearly erroneous considering the "totality of the circumstances" of this particular case in relation to those in Bui, see Ex parte McNair, [Ms. 1930955, September 2, 1994], ___ So. 2d ___ (Ala. 1994). Judge Price expressed his sensitivity to any form of discrimination several times during the Batson hearing in this case. In light of the Supreme Court's reasoning in Bui as expressed above, great deference must be given to the trial court's finding on the issue of discriminatory intent.

II

The appellant contends that the trial court erred by refusing to grant his motion for a change of venue based on the pretrial publicity.

As we stated in Brown v. State, 571 So. 2d 345 (Ala. Crim. App. 1990), this case generated extensive pretrial publicity. The defense submitted 53 exhibits relating to pretrial publicity, consisting of newspaper articles and transcripts of radio and television broadcasts that dealt with this case. The publicity surrounding this case detailed this offense, the 1960 murders of three of the appellant's relatives by the appellant when he was 14 years old, and other offenses committed by the appellant, and noted that the appellant had been paroled from prison on two occasions. The articles and broadcasts also included comments by public officials on these.

Although the change of venue issue was not explicitly addressed by the Alabama Supreme Court in Brown v. State, 632 So. 2d 14 (Ala. 1992), it was implicitly decided adversely to the appellant. In that case, the Supreme Court concluded that the trial court had "acquired adequate information from the venire to make an independent determination as to whether the jurors would be impartial." Thus, the trial court's determination that the appellant could receive a fair and impartial trial in Montgomery County is due to be upheld.

III

The appellant contends the trial court erred by not asking the following questions during the voir dire examination of the jury:

"13. Would the suggestion that the child victim was sexually abused before or after being killed cause you to have difficulty deciding this case fairly and impartially?

"14. Would the fact that the adult victim's body was mutilated with a knife cause you to have difficulty deciding this case fairly and impartially?

"14(a). Do you think you might possibly have difficulty looking at very unpleasant photographs and videotapes involving the crime scene and subsequent autopsies of the victims?

"14(b). Do you think that you might have some difficulty being objective and impartial with respect to this Defendant's guilt or innocence if such evidence were presented to you?"

(R. 118.) Rule 18.4, *fn1 A.R.Crim.P. provides in part:

"(c) Voir Dire Examination. The court shall permit the parties or their attorneys to conduct a reasonable examination of prospective jurors. The court also may conduct an examination of prospective jurors, and the court, in its discretion, may direct that the examination of one or more prospective jurors be separate and apart from the other prospective jurors.

"(d) Scope of Examination. Voir dire examination of prospective jurors shall be limited to inquiries directed to basis for challenge for cause or for obtaining information enabling the parties to knowledgeably exercise their strikes."

In Stringfellow v. State, 485 So. 2d 1238, 1240 (Ala. Crim. App. 1986), this Court stated:

"It is true that, 'in the process of selecting the jury from the venire afforded, each party has the right to have questions formulated by it propounded to the jury, either by the court or by the party as the court may determine, if such questions reasonably relate under the circumstances to the question of the qualification or interest or bias on the part of prospective jurors.' Griffin v. State, 383 So.2d 873, 876 (Ala. Cr. App. 1980); see also, Alabama Power Co. v. Bonner, 459 So.2d 827 (Ala. 1984). It is equally clear, however, that the trial court has broad discretion in determining how the voir dire examination of a jury will be conducted. Robinson v. State, 430 So.2d 883 (Ala. Cr. App. 1983); Witherspoon v. State, 356 So.2d 743 (Ala. Cr. App. 1978). Where the procedure employed by the trial Judge is sufficient to uncover possible prejudice or bias of a juror, the right of a party to have its questions propounded to the jury is not infringed upon. United States v. Brooks, 670 F.2d 148 (11th Cir. 1982), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1339 (1982)."

(Emphasis original.)

The trial court in this case did not abuse its discretion by refusing to allow defense counsel to ask the above questions. The above questions do not relate to the qualifications, interest, or possible bias of the jurors.

The appellant also seems to argue that the refusal of the trial court to ask the jury venire the above questions ...


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