Appeal from Jefferson Circuit Court. (CC-93-6264). Michael McCormick, TRIAL JUDGE.
Long, Judge. All The Judges Concur.
The opinion of the court was delivered by: Long
The appellant, Alton Jerome Hodges, was convicted of the possession of a controlled substance, a violation of § 13A-12-212(a)(1), Code of Alabama 1975. He was sentenced to one year and one day in the penitentiary.
The appellant contends that the trial court improperly overruled his motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, he maintains that the trial court improperly considered only the racial composition of the jury in determining that the defense failed to establish a prima facie case of discrimination, a practice now expressly disapproved by the Alabama Supreme Court in Ex parte Thomas, [Ms. 1921804, September 2, 1994] __ So. 2d ____ (Ala. 1994).
The record reflects that after the jury was struck, the following transpired:
"MR. LENTINE [defense counsel]: Your Honor, at this time I'd make a motion under Batson v. Kentucky and Ex parte v.[sic] Jackson for the State's striking of juror venire members No. 210 and No. 209. I believe that both of these strikes were racial and discriminatory.
"I think specifically on 209 that it was done for the reason of race rather than anything else. And I make a Batson motion at this time based on the fact that I think there was a prima facie case shown regarding specifically No. 209. I think also on No. 210 who indicated that back here in individual voir dire that he had--although he knew the defendant's family from a long time back, that he wasn't close to them now and hadn't been close to them apparently in years, and indicated that he could decide this case solely on the facts and evidence presented.
"THE COURT: Well, my records indicate that there are eight blacks on the venire. That the State used two out of seven to strike black jurors. The defendant used one. That means, of course, there are five black citizens on the panel.
"I'm going to deny your motion."
(R. 47-49.) The record does not reflect how many persons were on the venire.
It appears from the record that the trial court based its ruling that the appellant failed to establish a prima facie case of discrimination solely on the fact that five black persons remained on the jury. As noted, the Alabama Supreme Court has expressed disfavor with this reasoning in Ex parte Thomas, [Ms. 1921804, September 2, 1994], ____ So. 2d ____ (Ala. 1994).
"Before the release of the Alabama Supreme Court's decision in Thomas, this court had consistently held that when a Batson objection was raised by a black defendant and a greater percentage of African-Americans sat on the jury than the percentage that sat on the venire no prima facie case of discrimination had been established. Harrell v. State, 571 So. 2d 1270 (Ala. 1990), cert. denied, 499 U.S. 984, 111 S. Ct. 1641, 113 L.Ed.2d 736 (1991). See also Raspberry v. State, 615 So. 2d 657 (Ala. Cr. App. 1992); Ashley v. State, 606 So. ...