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03/24/95 ROGER ELTON ARNOLD v. STATE

March 24, 1995

ROGER ELTON ARNOLD, SR.
v.
STATE



Appeal from Mobile Circuit Court. (CC-91-2642.80 and CC-91-2643.80). Edward McDermott, TRIAL JUDGE.

Released For Publication February 20, 1996.

Taylor, Presiding Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, PRESIDING JUDGE

The appellant, Roger Elton Arnold, Sr., was convicted of attempted murder (see §§ 13A-6-4 and 13A-4-2, Code of Alabama 1975) and of burglary in the second degree (see § 13A-7-6, Code of Alabama 1975). He was sentenced to life in the penitentiary on the attempted murder conviction and to 20 years in the penitentiary on the burglary conviction. Both sentences were to be served concurrently.

The appellant initially contends that his rights under the United States Supreme Court case of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986), were violated when the prosecution used four of its six strikes to remove male members of the venire. Specifically, he contends that this action denied him equal protection of the law by excluding a certain group of people based on gender.

In Batson, the United States Supreme Court held that black prospective jurors could not be struck from a black defendant's jury based solely on their race. The United States Supreme Court extended its decision in Batson to apply to white defendants in Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L.Ed.2d 411 (1991); to civil cases in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L.Ed.2d 660 (1991); and to defense counsel in criminal cases in Georgia v. McCollum, ___ U.S. ___, 112 S. Ct. 2348, 120 L.Ed.2d 33 (1992). Recently the Alabama Supreme Court held that Batson applies to the striking of white prospective jurors. White Consolidated Industries, Inc. v. American Liberty Insurance Co., 617 So. 2d 657 (Ala. 1993). In 1994 the United States Supreme Court extended Batson to apply to gender in J.E.B. v. Alabama, ___ U.S. ___, 114 S. Ct. 1419, 128 L. E. 2d 89 (1994).

The following occurred when defense counsel raised a Batson challenge:

"Mr. Soto [defense counsel]: I forgot the new case that the Supreme Court just came out. It's a Batson [case]. It's a sex-based case. It's actually Alabama in the title, but under Batson I object to the State's -- that four of the State's six strikes were of males. And while I don't think I have to make a showing that my client is a male because of Powers, I think that the State discriminated against my client by using most of his strikes against males.

"The Court: What?

"Mr. Soto: Sir?

"The Court: What was your --

"Mr. Soto: Yes, sir. Judge, he struck 148, who's a white male; 125, who's a white male; 127, who's a black male; and 140 is a black male.

"Of the six strikes, he used four of them against males. And I say that and the other relevant circumstances point out to a prima facie case of discrimination. I ...


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