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03/24/95 STATE v. CHESTER LEON WHITLEY

March 24, 1995

STATE
v.
CHESTER LEON WHITLEY, JR.



Appeal from Russell Circuit Court. (CC-91-551.60). Wayne Johnson, TRIAL JUDGE.

Rehearing Denied May 5, 1995. Certiorari Denied June 30, 1995. Released For Publication December 14, 1995.

Cobb, Judge. All the Judges concur except Long, J., who recuses.

The opinion of the court was delivered by: Cobb

COBB, JUDGE

This case was originally assigned to another Judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.

This is an appeal by the State of the trial court's order granting Chester Whitley's Rule 32, Ala. R. Crim. P., petition challenging his conviction for murder. Following an evidentiary hearing, the trial court entered the following order:"I

"The Court will address the grounds in Defendant's petition.

GROUND 1

"A. Defendant claims that the petition jury was unconstitutionally selected and impaneled in that the State struck certain jurors for their age in violation of Batson v. Kentucky. The matter of Defendant's Batson motion was decided adversely to Defendant by the Court of Criminal Appeals [607 So. 2d 354, 356-358]; therefore, this ground is barred.

"B. Defendant also claims that the jury was unconstitutionally selected and impaneled because one of the jurors, who became the jury foreman, failed to disclose during voir dire that his stepmother was an employee at the Russell County jail.

Defendant's trial attorney testified this would have influenced his striking of jurors. 'The measuring stick to be applied . . . is whether the action of the juror might have unlawfully influenced the verdict . . . This test casts a light burden on the Defendant.' State v. Freeman, 605 So. 2d 1258, 1260 (Ala. Cr. App. 1992). In Freeman the Court of Criminal Appeals reversed the conviction and remanded the case for a retrial where the jury foreman failed to disclose that he had been a former police officer. Accord, Ex Parte Ledbetter, 404 So. 2d 731 (Ala. 1981).

Ex Parte Lowe, 514 So. 2d 1049 (Ala. 1987), addresses the argument of harmless error in that the State would contend the evidence against Defendant was overwhelming. There the Supreme Court held overwhelming evidence of guilt does not render prejudicial error to be harmless. The Freeman decision applied this rule.

The court cannot distinguish Freeman from the case sub judice ; therefore, the court must find that Defendant was denied his right to be tried by an impartial jury as guaranteed by the Sixth Amendment to the United States Constitution. Defendant's petition should be granted on this ground and a new trial be ordered.

"II

"The court will proceed to address the other grounds as required by Rule 32.

"GROUND 2

"Defendant claims he received ineffective assistance of counsel on ...


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