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February 10, 1995


Appeal from Jefferson Circuit Court. (CC-92-4574). Alfred Bahakel, Trial Judge.

Rule 39(k) Motion Denied April 14, 1995. Rehearing Denied April 14, 1995. Certiorari Denied June 30, 1995. Released For Publication December 14, 1995.

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


The appellant, Kathryn Jane Miesner, was convicted of sexual abuse in the first degree, a violation of § 13A-6-66, Code of Alabama 1975. She was sentenced to 10 years' imprisonment; that sentence was split, and she was ordered to serve 6 months in the penitentiary and was placed on probation for the remainder of her sentence.

The appellant contends that the court erred in denying her motion made pursuant to 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 of the United States Constitution 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 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). Batson was further extended when the United States Supreme Court in Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), held that the protections of Batson were also applicable 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), extended Batson to the striking of white veniremembers. Batson has also been extended to prohibit gender-based strikes in J.E.B. v. Alabama, ___ U.S. ___, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994).

Although, the many cases interpreting Batson have created a complex area of the law, the issue in this case is resolved by applying the basic principles set forth by the United States Supreme Court in Batson. The United States Supreme Court in Batson stated:

"More than a century ago, the Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded. Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303, 25 L. Ed. 664 (1880). That decision laid the foundation for the Court's unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn. In Strauder, the Court explained that the central concern of the recently ratified Fourteenth Amendment was to put an end to governmental discrimination on account of race. Id., at 306-307. Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure.

"In holding that racial discrimination in jury selection offends the Equal Protection Clause, the Court in Strauder recognized, however, that a defendant has no right to a 'petit jury composed in whole or in part of the persons of his own race.' Id., at 305 'The number of our races and nationalities stands in the way of evolution of such a conception' of the demand of equal protection. Akins v. Texas, 325 U.S. 398, 403, 65 S. Ct. 1276, 1279, 89 L. Ed. 1692 (1945). But the defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. Martin v. Texas, 200 U.S. 316, 321, 26 S. Ct. 338, 339, 50 L. Ed. 497 (1906); Ex parte Virginia, 10 Otto 339, 345, 100 U.S. 339, 345, 25 L. Ed. 676 (1880). The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, Strauder, (supra) , 100 U.S. at 305, or on the false assumption that members of his race as a group are not qualified to serve as jurors, see Norris v. Alabama, 294 U.S. 587, 599, 55 S. Ct. 579, 584, 79 L. Ed. 1074 (1935); Neal v. Delaware, 13 Otto 370, 397, 103 U.S. 370, 397, 26 L. Ed. 567 (1881).

"Purposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure. 'The very idea of a jury is a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.' Strauder, (supra) , 100 U.S. at 308; see Carter v Jury Comm'n of Greene County, 396 U.S. 320, 330, 90 S. Ct. 518, 524, 24 L. Ed. 2d 549 (1970). The petit jury has occupied a central position in our system of Justice by safeguarding a person accused of crime against the arbitrary exercise of power by prosecutor or Judge. Duncan v. Louisiana, 391 U.S. 145, 156, 88 S. Ct. 1444, 1451, 20 L. Ed. 2d 491 (1968). Those on the venire must be 'indifferently chosen,' to secure the defendant's right under the Fourteenth Amendment to 'protection of life and liberty against race or color prejudice.' Strauder, (supra) , 100 U.S. at 309.


"... Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges 'for any reasons at all, as long as that reason is related to his view concerning the outcome' of the case to be tried, United States v. Robinson, 421 F. Supp. 467, 473 (Conn. 1976), mandamus granted sub nom. United States v. Newman, 549 F.2d 240 (CA2 1977), the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant."

Batson, 476 U.S. at 85-89, 106 S. Ct. 1716-1719, 90 L. Ed. 2d at 79-83. (Footnotes omitted.)

Here, the state used 5 of its 7 peremptory strikes to remove black prospective jurors from the venire. The court directed the state to give its reasons for the strikes. Therefore, whether the court found that the defendant had established a prima facie case of racial discrimination is moot. When the reasons for striking prospective jurors are contained in the record, this court will review those reasons. Dobyne v. State, [Ms. CR-91-1840, April 15, 1994] ___ So. 2d ___ (Ala. Cr. App. 1994).

"A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror." Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). However, this court has stated that when a reason, although suspect, is accompanied by a nonracial reason, the strike of the prospective juror does not violate Batson. Williams v. State, 627 So. 2d 985 (Ala. Cr. App. 1991), on rehearing, 627 So. 2d 994 (Ala. Cr. App. 1992), aff'd, 627 So. 2d 999 ...

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