Ex parte Christopher Anthony Floyd; In re: Christopher Anthony Floyd
State of Alabama
on denial of rehearing: August 21, 2015.
for Publication May 28, 2016.
Appealed from Petition for Writ of Certiorari to the Court of
Criminal Appeals (CR-05-0935); Houston Circuit Court
(CC-04-1670). Larry K. Anderson, Trial Judge.
Petitioner: Randall S. Susskind, Carla C. Crowder, Equal
Justice Initiative, Montgomery.
Respondent: Luther Strange, Atty. Gen., Kevin W. Blackburn,
Asst. Atty. Gen.
Justice. Moore, C.J., and Bolin, Parker, Main, and Bryan,
JJ., concur. Murdock, J., dissents. Shaw and Wise, JJ.,
FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
Court issued a writ of certiorari to determine whether the
following holdings of the Court of Criminal Appeals in
Christopher Anthony Floyd's appeal from his
capital-murder conviction are proper: that the Houston
Circuit Court (" the trial court" ) did not err in
holding that the State provided valid race-and gender-neutral
reasons for its exercise of its peremptory strikes during
jury selection, that the trial court did not err by refusing
to admit into evidence all of Floyd's statements made to
law-enforcement officers, and that the trial court did not
err in denying Floyd's motion for a new trial based on
newly discovered evidence. We affirm.
and Procedural History
Floyd was convicted of the murder of Waylon Crawford. The
murder was made capital because it was committed during a
robbery, see § 13A-5-40(a)(2), Ala. Code 1975. Floyd was
sentenced to death. In selecting the jury for Floyd's
case, the prosecutor and Floyd's counsel exercised a
total of 36 peremptory challenges. The State used its 18
challenges to remove 10 of 11 African-American veniremembers
and 12 of 18 female veniremembers. Floyd's counsel
removed one African-American and seven female veniremembers.
The jury consisted of six white male jurors, six white female
jurors, two alternate white male jurors and one alternate
African-American female juror. Floyd did not object to the
jury based on Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986)(prohibiting racial
discrimination in jury selection), or J.E.B. v.
Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89
(1994)(prohibiting gender discrimination in jury selection).
direct appeal, the Court of Criminal Appeals held that the
record indicated that the prosecutor's use of his
peremptory challenges created a prima facie case of
discrimination under both Batson and J.E.B. That court
remanded the case for the trial court to conduct a
Batson/J.E.B. hearing. Floyd v. State, [Ms.
CR-05-0935, Sept. 28, 2007] __ So.3d __, (Ala.Crim.App.
remand, the trial court conducted a hearing and required the
prosecutor, Gary Maxwell, to provide explanations for the
exercised peremptory challenges. Before providing
explanations for his peremptory challenges, the prosecutor
explained his general practice in selecting a jury for a
" In a capital murder case where voir dire is extensive,
and ordinarily the process lasts a day or longer, I try to
rate each and every juror initially on gut reaction. If you
will look at State's Exhibit 1 there, in black outside of
a lot of the juror's names, I will write 'Okay.'
I will write just a dash for a minus. I might write a plus,
being -- minuses are bad gut reaction, pluses are a good gut
reaction. Okay is just okay. All right.
" Also, in doing so -- I do that when the clerk is
calling the names of the jurors and asking them to stand.
Now, also, as is the Court's practice -- when I say the
Court, the list that we have, I will put a 'B'
outside of the names of those who are black. I do that not
only from the appearance in court but from the jury list
that's propounded by the clerk's
" I have done this same procedure, the initial gut
reaction rating system, for over 30 years. It's proven to
be pretty accurate, I think. Then as questioning proceeds --
I adjust those ratings based on responses or lack of
responses to the questions, questions the Court asks,
questions the State asks, and the questions that the
defendant propounds as to whether I feel they would favor the
State or the defense, on their demeanor, the way they answer
the questions, and not just the answer to the questions, the
answer or again their failure to respond.
" Now, ... I do that second rating system basically in
red. I may go back, I may change a minus to a plus. I may
change a plus to a minus.
" Ultimately, I try to strike those most likely to lean
towards the defense, not on race. I consider such factors as
their age, their place of employment or lack of employment,
their physical ability based on appearance, and/or responses
to the questions that the Court propounds or the attorneys
propound or on their failure to respond to questions. If they
appear to be having a hard time understanding the Court's
instructions or questions or those questions of the
attorneys, I take that into consideration. If they do not pay
attention, if they daydream, act as if they are bored or just
don't care, I take that into consideration in this second
" In my rating system, for example, Juror [no.
30/]J.B., who was struck by the defense, I
considered to be an excellent juror for the State. And I
think you can see that on my list out there, that there is a
plus beside [Juror no. 30/J.B.'s] name.
" The State seeks jurors who are stable members of the
community and due to the complexity of a capital murder case,
we prefer jurors who have had jury experience and who have
rendered a guilty verdict in the past. We prefer jurors who
have jobs or education that requires concentration and
attention to detail and also analysis.
" A juror's demeanor or body language, his lack of
eye contact with attorneys when they are asking questions can
be a factor especially when he appears disinterested or shows
more animosity towards the prosecution or law enforcement.
" So that's just a basic background of what I do in
preparation for striking the jury."
explaining his methodology for selecting a jury, the
prosecutor offered the following reasons for his exercised
peremptory strikes of African-Americans and females:
Prospective juror no. 28/P.B.: The prosecutor stated that he
struck P.B., an African-American female, because P.B. had 32
bad-check cases, her probation had been revoked, and she was
in the same age range as Floyd.
Prospective juror no. 43/J.B.: The prosecutor stated that he
struck J.B., an African-American male, because J.B. had two
convictions for harassment and had approximately 12 traffic
tickets with the City of Dothan.
Prospective juror no. 59/M.C.: The prosecutor stated that he
struck M.C., an African-American female, because M.C.
initially indicated that she could not vote for the death
penalty and was personally opposed to capital punishment, and
because she vacillated when questioned by the trial court.
Prospective juror no. 38/K.B.: The prosecutor stated that he
struck K.B., an African-American male, because K.B. had been
convicted of disorderly conduct, because he knew a potential
witness who was rumored to have been involved in the
commission of the offense charged, and because a member of
law enforcement had indicated that he would be a bad juror
for the State.
Prospective juror no. 46/T.C.: The prosecutor stated that he
struck T.C., an African-American female, because T.C. had six
convictions and her brother had felony convictions, because
during voir dire she questioned the veracity of testimony
from members of law enforcement, and because of her
familiarity with members of the district attorney's
office as a result of that office's prosecution of her
and her brother.
Prospective juror no. 57/A.C.: The prosecutor stated that he
struck A.C., an African-American female, because A.C. had
been convicted of theft and negotiating worthless negotiable
Prospective juror no. 60/L.C.: The prosecutor stated that he
struck L.C., an African-American female, because he believed
that L.C. was " too familiar with everybody
involved" in the case because she knew the defense
attorneys, members of the district attorney's office, and
the forensic pathologist who performed the autopsy on the
victim. He further explained that he believed L.C.'s
expressed religious beliefs would impact her ability to sit
in judgment of the accused.
Prospective juror no. 19/D.B.: The prosecutor stated that he
struck D.B., an African-American female, because she was
inattentive during voir dire. The prosecutor further stated
that D.B. failed to make eye contact with members of the
prosecution team, but at times during voir dire nodded in
agreement with defense counsel.
Prospective juror no. 58/I.C.: The prosecutor stated that he
struck I.C., an African-American female, because I.C. did not
respond to any questions during voir dire and the prosecution
did not know anything about her.
Prospective juror no. 51/R.C.: The prosecutor stated that he
struck R.C., an African-American female who ultimately served
as an alternate juror, because R.C. was 77 years of age and
he had concerns, based on her demeanor during voir dire and
the length and complexity of the case, that she would be able
to serve as a juror.
Prospective juror no. 5/T.M.A.: The prosecutor stated that he
struck T.M.A., a Caucasian female, because of her age. He
further stated that, although he could not provide a specific
reason, his initial impression of T.M.A. was that she would
not be a good ...