May 29, 2015
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 juror for the State and because of " the
Prospective juror no. 23/R.B.: The prosecutor stated that he
struck R.B., a Caucasian female, because his initial
impression of R.B. was that she would not be a strong juror
for the State and she did not respond to any questions during
Prospective juror no. 35/S.B.: The prosecutor stated that he
struck S.B., a Caucasian female, because, although his
initial impression was that she would be an " okay"
juror for the State, S.B. did not respond to any questions
during voir dire and appeared to be close to Floyd's age.
Prospective juror no. 70/K.D.: The prosecutor stated that he
struck K.D., a Caucasian female, because K.D. was
approximately the same age as Floyd.
prosecutor further stated that, based on his notes and rating
system, he had determined that prospective jurors no.
8/M.W.A., no. 32/L.J.B., and no. 42/R.S.B, Caucasian females
who ultimately served on the jury, would be good jurors for
the State and that prospective jurors no. 18/K.P.B. and no.
62/M.D., Caucasian females, and prospective juror no.
30/J.B., an African-American female, each of whom was struck
by the defense, would have also been good jurors for the
prosecutor explained that, during the selection process, he
noticed that the defense was using its peremptory strikes to
remove veniremembers who were not similar in age to Floyd. He
stated that, after he had removed veniremembers that he
believed would not be good jurors for the State, he
challenged veniremembers in the age group the defense was
trying to seat on the jury, i.e, those similar in age to
prosecutor offered into evidence his strike list that
provided the names and numbers of the veniremembers, upon
which he had made notations about each of the veniremembers;
a list showing each veniremember's prior jury service and
any criminal charges; and the strike list that contained
information about the veniremembers, including race, sex,
occupation, etc., and upon which members of law enforcement
had made notations about various veniremembers and whether
those veniremembers would be good jurors for the State.
rebut the prosecutor's reasons and to show that the
prosecutor engaged in actual, purposeful discrimination,
Floyd argued that the reasons offered by the prosecutor for
his strikes were pretextual and a sham because, he said, the
Houston County district attorney's office had in the past
engaged in discrimination during the jury-selection process.
In support of his argument, Floyd named five cases in which
convictions from the Houston Circuit Court had been reversed
based on the State's having exercised its peremptory
challenges in a discriminatory manner. He further argued
that, although the prosecutor claimed that a number of the
removed veniremembers or their family members had criminal
convictions, many of those convictions were not in the record
and/or were unavailable for verification by the defense; that
the prosecutor failed to ask follow-up questions during voir
dire of veniremembers who had been struck to associate the
reason provided to this case; that the prosecutor's
exercise of his peremptory strikes based on the race-neutral
reason of age was disingenuous because the prosecutor used
age as a reason to strike veniremembers ranging from age 28
years old to 77 years old; and that, although the prosecutor
stated that he struck African-American veniremembers based on
traffic tickets and opinions they had regarding the death
penalty, the prosecutor did not strike two similarly situated
support of his argument, Floyd submitted a legal memorandum
listing various cases in Houston County involving Batson
objections, including five cases in which an appellate court
had reversed convictions based on a Batson violation; a copy
of defense counsel's strike list; and a strike list
providing additional information about the various
veniremembers, including date of birth, sex, race,
the hearing, the trial court entered a written order finding
that the prosecutor had proffered race-and gender-neutral
reasons for exercising his peremptory strikes.
return to remand, the Court of Criminal Appeals upheld the
trial court's finding that the State had provided
race-and gender-neutral reasons for its use of its peremptory
strikes, considered the other issues presented on direct
appeal, and affirmed Floyd's conviction and sentence.
Floyd v. State, [Ms. CR-05-0935, August 29, 2008] __
So.3d __, (Ala.Crim.App. 2008) (opinion on return to remand).
certiorari review, this Court held that on remand the trial
court had failed to comply with the order of the Court of
Criminal Appeals that it provide specific findings concerning
the reasons proffered by the prosecutor for striking
African-American and/or female veniremembers and that the
Court of Criminal Appeals had erred in assuming the role of
the trial court and finding that the State's reasons for
striking prospective jurors no. 5/T.M.A. and no. 58/I.C. were
nondiscriminatory. Ex parte Floyd, [Ms. 1080107, September
28, 2012] __ So.3d __, __, (Ala. 2012). This Court reversed
the judgment of the Court of Criminal Appeals and remanded
the case for that court to remand the case with directions
for the trial court
" to make necessary findings of fact and conclusions of
law on the following issues: whether the State's offered
reasons for striking the African-American jurors it struck
were race neutral; whether the State's offered reasons
for striking the female jurors it struck were gender neutral;
and 'whether the defendant has carried his burden of
proving purposeful discrimination.'"
Ex parte Floyd, __ So.3d __at __.
to this Court's order, the Court of Criminal Appeals
remanded the case with instructions that the trial court make
the necessary findings of fact and conclusions of law.
Floyd v. State, [Ms. CR-05-0935, December 14, 2012]
__ So.3d __, (Ala.Crim.App. 2012). The trial court on second
remand entered an order, making specific findings of fact
with regard to the State's proffered reasons for striking
African-American and female veniremembers and finding that
Floyd had not demonstrated that the prosecutor had engaged in
actual, purposeful discrimination on the basis of race or
gender during the jury-selection process. The trial court
rejected Floyd's claims that the prosecutor had violated
Batson and J.E.B. during the jury-selection process and found
that the prosecutor had proffered race-and gender-neutral
reasons for his peremptory strikes and that Floyd had not
satisfied his burden of proving that the prosecutor's
reasons had been pretextual or sham or that the prosecutor
had engaged in actual, purposeful discrimination during the
return to second remand, the Court of Criminal Appeals
affirmed Floyd's conviction and sentence, holding that
the trial court's judgment was not clearly erroneous
because the record supported the trial court's conclusion
that the prosecutor had presented facially race-and
gender-neutral reasons for his strikes, that the
prosecutor's reasons were not pretextual or sham, and
that Floyd had not satisfied his burden of proving that the
prosecutor engaged in actual, purposeful discrimination
against African-American and female veniremembers during the
jury-selection process. Floyd v. State, [Ms.
CR-05-0935, November 8, 2013] __ So.3d __, __,
(Ala.Crim.App. 2013) (opinion on return to second remand).
Court has now granted certiorari review to consider whether
the Court of Criminal Appeals properly upheld the trial
court's denial of Floyd's Batson and J.E.B. claims,
the trial court's refusal to admit into evidence all of
Floyd's statements made to law-enforcement officers, and
the trial court's denial of Floyd's motion for a new
trial based on newly discovered evidence
certiorari review, this Court does not accord the legal
conclusions of an intermediate appellate court a presumption
of correctness. Therefore, this Court applies de novo the
standard of review that was applicable in the intermediate
appellate court. Ex parte Toyota Motor Corp., 684 So.2d 132,
135 (Ala. 1996).
contends that the judgment of the Court of Criminal Appeals
upholding the trial court's finding that the State's
reasons for striking I.C. and T.M.A. were race-and
gender-neutral and that he did not satisfy his burden of
proving that the prosecutor engaged in actual, purposeful
discrimination during the jury-selection process conflicts
with Batson and J.E.B.
contention that the trial court erred in not finding a Batson
or J.E.B. violation focuses on the second and third step in a
Batson/J.E.B. inquiry. In the second step of the inquiry, the
party against whom the prima facie case has been established,
i.e., the nonmoving party, has the burden of proving that its
reasons for its peremptory challenges were race or gender
neutral. Ex parte Branch, 526 So.2d 609, 623 (Ala. 1987). The
nonmoving party must provide " a clear, specific, and
legitimate reason for the challenge which relates to the
particular case to be tried, and which is
nondiscriminatory." Ex parte Branch, 526 So.2d at 623.
The nonmoving party's reason, however, does not have to
equal the reason for a strike for cause; rather, the
nonmoving party's explanation must be facially valid. Ex
parte Branch, 526 So.2d at 623.
" Within the context of Batson, a 'race-neutral'
explanation 'means an explanation based on something
other that the race of the juror. At this step of the
inquiry, the issue is the facial validity of the
prosecutor's explanation. Unless a discriminatory intent
is inherent in the prosecutor's explanation, the reasons
offered will be deemed race neutral.' Hernandez v.
New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114
L.Ed.2d 395 (1991). 'In evaluating the race-neutrality of
an attorney's explanation, a court must determine
whether, assuming the proffered reasons for the peremptory
challenges are true, the challenges violate the Equal
Protection Clause as a matter of law.' Id.
'[E]valuation of the prosecutor's state of mind based
on demeanor and credibility lies " peculiarly within the
trial judge's province." ' Hernandez,
500 U.S. at 365, 111 S.Ct. at 1869."
Allen v. State, 659 So.2d 135, 147 (Ala.Crim.App.
the trial court determines that the nonmoving party has
provided facially valid race- and gender-neutral reasons for
its peremptory challenges, the burden then shifts to the
moving party to prove that the nonmoving party has engaged in
actual, purposeful discrimination. During this third step of
the Batson/J.E.B. inquiry, the trial court evaluates the
persuasiveness of the nonmoving party's reasons to
determine whether the nonmoving party has engaged in
purposeful discrimination. Purkett v. Elem, 514 U.S.
765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The trial
court's determination of the moving party's showing
of intent to discriminate is " a pure issue of fact
subject to review under a deferential standard."
Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct.
1859, 114 L.Ed.2d 395 (1991). As this Court explained in Ex
" [T]he trial judge must make a sincere and reasonable
effort to evaluate the evidence and explanations based on the
circumstances as he knows them, his knowledge of trial
techniques, and his observation of the manner in which the
prosecutor examined the venire and the challenged jurors.
People v. Hall, 35 Cal.3d 161, 672 P.2d 854, 858,
197 Cal.Rptr. 71 (1983); see also [People v.]
Wheeler, 22 Cal.3d  at 281, 583 P.2d  at 764,
148 Cal.Rptr.  at 906 [(1978)].
" In evaluating the evidence and explanations presented,
the trial judge must determine whether the explanations are
sufficient to overcome the presumption of bias. Furthermore,
the trial judge must be careful not to confuse a specific
reason given by the state's attorney for his challenge,
with a 'specific bias' of the juror, which may
justify the peremptory challenge:
" 'The latter, a permissible basis for exclusion
of a prospective juror, was defined in Wheeler as " a
bias relating to the particular case on trial or the
parties or witnesses thereto."
Wheeler, 22 Cal.3d at 276, 148
Cal.Rptr. at 902, 583 P.2d at 760. ...'
" Slappy [v. State], 503 So.2d  at 354 [(Fla. Dist.
Ct.App. 1987)]. The trial judge cannot merely accept the
specific reasons given by the prosecutor at face value, see
Hall, 35 Cal.3d at 168, 672 P.2d at
858-59, 197 Cal.Rptr. at 75;
Slappy, 503 So.2d at 356; the judge
must consider whether the facially neutral explanations are
contrived to avoid admitting acts of group
526 So.2d at 624.
appellate court may reverse the trial court's
determination that the nonmoving party's peremptory
challenges were not motivated by intentional discrimination,
the third consideration in a Batson/J.E.B. inquiry, only if
that determination is clearly erroneous. Ex parte Branch, 526
So.2d at 625. Whether the nonmoving party engaged in actual,
purposeful discrimination involves consideration of not only
the nonmoving party's credibility, but also the
veniremember's demeanor, and such determinations rest on
the trial court's firsthand observations. As the United
States Supreme Court stated in Hernandez, when determinations
rest upon credibility and demeanor, they rest "
'peculiarly within a trial judge's
province.'" Hernandez, 500 U.S. at 365
(quoting Wainwright v. Witt, 469 U.S. 412, 428, 105
S.Ct. 844, 83 L.Ed.2d 841 (1985)).
regard to Floyd's claim that the prosecutor, the
nonmoving party in this case, purposefully excluded
African-Americans from his jury, Floyd focuses on the
prosecutor's exercise of a peremptory challenge to remove
prospective juror no. 58/I.C. from the venire. The
prosecutor, when asked to provide reasons why he exercised a
peremptory challenge to remove I.C. from the venire, stated
that he removed I.C. because he did not know much about her
in that she had been omitted from the State's strike
lists and because she did not respond to questions. The trial
court found these reasons to be race neutral, see Jackson
v. State, 686 So.2d 429, 431 (Ala.Crim.App.
1996)(holding that nonresponsiveness to questioning can be a
race-neutral reason), and State v. Harris, 184 Ariz.
617, 620, 911 P.2d 623, 626 (Ariz. Ct.App. 1995)(finding the
prosecutor's proffered reason that she lacked knowledge
about the veniremember to be race neutral). The trial court
further found that Floyd did not satisfy his burden of
proving that the prosecutor's reasons were pretextual or
sham and that he engaged in actual, purposeful discrimination
in the jury-selection process.
maintains that the reasons offered by the prosecutor for his
strikes of African-Americans and females do not adequately
rebut the inference of actual, purposeful discrimination
because, he says, those reasons are pretextual or sham. He
argues that I.C.'s alleged lack of responsiveness to
questions is pretextual or sham and is not supported by the
record because during group voir dire I.C., as did a
Caucasian veniremember, responded to questions as requested
by the questioner by either raising or not raising her hand.
See Ex parte Branch, 526 So.2d at 625 (holding that
disparate treatment of veniremembers with the same
characteristics or who answer questions in the same manner
suggests that the reason for striking one over the other is
pretextual or sham). Similarly, he further argues that the
prosecutor's lack of knowledge about I.C. is pretextual
or sham because the prosecutor did not engage in additional
voir dire with I.C. to learn more about her. Ex parte
Bird, 594 So.2d 676, 683 (Ala. 1991)(" [T]he
failure of the State to engage in any meaningful voir dire on
a subject of alleged concern is evidence that the explanation
is a sham and a pretext for discrimination." ).
Court, in light of the deference to be accorded the trial
court in its determination of whether Floyd satisfied his
burden of proving that the prosecutor engaged in actual,
purposeful discrimination, cannot conclude from the record
that the trial court's holding that Floyd did not satisfy
his burden of proving that the prosecutor engaged in actual,
purposeful discrimination is clearly erroneous. We cannot
agree with Floyd that the prosecutor engaged in disparate
treatment because he used a peremptory challenge to remove
I.C. and did not use a peremptory challenge to remove
prospective juror no. 21/A.B., a Caucasian male. The record
indicates that the prosecutor, who relied heavily upon his
impressions and knowledge of the veniremembers in the
exercise of his peremptory challenges, knew little about I.C.
because she was omitted from his strike lists. The record
further indicates that the prosecutor from his strike lists
knew that A.B. had not served previously on a jury and that
he did not have a criminal history. Under the facts of this
case, these known facts about A.B. negate the evidence of any
disparate treatment of I.C. and A.B.
the prosecutor's admission of his lack of knowledge about
I.C. when proffering reasons for the exercise of the
peremptory challenge does not require the conclusion that the
prosecutor engaged in actual, purposeful discrimination.
This Court in State v. Bui, 627 So.2d 855 (Ala.
1992), agreed with the United States Court of Appeals for the
Fifth Circuit that the " '" [f]ailure by a
prosecutor to explain every peremptory strike of black jurors
is not necessarily fatal to the prosecutor's ability to
rebut a prima facie case ...." '"
State v. Bui, 627 So.2d at 859
(quoting United States v. Forbes, 816 F.2d 1006,
1011 n. 7 (5th Cir. 1987), quoting in turn United States
v. David, 803 F.2d 1567, 1571 (11th Cir. 1986)). Here,
the prosecutor admitted that I.C. had been inadvertently
omitted from his strike lists and that, consequently, he had
little information about her. In light of the
prosecutor's explanation of the process he used in
striking a jury, the prosecutor's candor that he knew
nothing about I.C., his stated reluctance to seat a juror he
did not believe was good for the State, and the deference
accorded the trial court in making credibility determinations
concerning the prosecutor, we cannot hold that the trial
court's finding that Floyd did not satisfy his burden of
proving that the prosecutor engaged in actual, purposeful
discrimination in the selection of the jury in this regard is
contention that the prosecutor purposefully excluded females
from the jury focuses on the prosecutor's exercise of a
peremptory challenge to remove prospective juror no. 5/T.M.A.
from the venire. According to Floyd, the trial court accepted
at face value the prosecutor's proffered reason of her
age for the removal of T.M.A. from the jury. He maintains
that because the prosecutor did not connect T.M.A.'s age
to the case, the reason is pretextual or sham and evidences
actual, purposeful discrimination on the part of the
prosecutor. See Ex parte Branch, 526 So.2d at 624 (providing
that a guideline for determining whether a prosecutor's
reason for an allegedly discriminatory strike was valid or
sham includes " 'an explanation based on a group
bias where the group trait is not shown to apply to the
challenged juror specifically'" (quoting Slappy
v. State, 503 So.2d 350, 355 (Fla. Dist. Ct.App.
1987))). See also Ex parte Brooks, 695 So.2d 184, 190 (Ala.
1997)(recognizing that " age, employment status, and
marital status are not sufficiently race-neutral reasons for
a peremptory strike, if the prosecutor gives that reason as
the sole basis for the strike, where that reason is unrelated
to the case" ).
record, however, does not support Floyd's argument that
the prosecutor engaged in disparate treatment because the
record establishes that the prosecutor did relate the reason
of age to the case. The record establishes that Floyd, a
Caucasian, was 33 years old and that T.M.A. was 48 years old
at the time of the trial. At the Batson/J.E.B. hearing, the
prosecutor stated that he struck T.M.A. because he believed
she was within the age range of the juror the defense was
trying to seat. A review of the prosecutor's strikes
indicates that, after he struck veniremembers he believed
would not be good jurors for the State, he exercised his
peremptory challenges to remove veniremembers whose ages were
in Floyd's age range in an effort to prevent the defense
from seating the type juror it believed would be pro-defense.
Thwarting the defense's objective in jury selection is a
race-neutral reason, and we cannot conclude based on the
record before us that the trial court's finding that
Floyd did not satisfy his burden of proving that the
prosecutor engaged in actual, purposeful discrimination by
striking T.M.A. is clearly erroneous.
Court has reviewed the record in light of Floyd's
contention that the State did not provide race- and/or
gender-neutral reasons for striking prospective juror no.
59/M.C., prospective juror no. 19/D.B., prospective juror no.
60/L.C., prospective juror no. 23/R.B., prospective juror no.
35/S.B., and prospective juror no. 70/K.D. The record,
however, supports the trial court's conclusion that the
State proffered race- and/or gender-neutral reasons for its
peremptory challenges of those jurors. See Whatley v.
State 146 So.3d 437, 456 (Ala.Crim.App. 2010) (noting
that, " '" [a]lthough a juror's
reservations about the death penalty need not be sufficient
for a challenge for cause, his view may constitute a
reasonable explanation for the exercise of a peremptory
strike." '" (quoting Dallas v. State,
711 So.2d 1101, 1104 (Ala.Crim.App. 1997), quoting in turn
Johnson v. State, 620 So.2d 679, 696 (Ala.Crim.App.
1992)), and finding a juror's demeanor to be a
race-neutral reason); Smith v. State, 838 So.2d 413
(Ala.Crim.App. 2002) (finding a juror's religious/moral
conviction against sitting in judgment to be a race-neutral
reason); Jackson, supra (finding a juror's
nonresponsiveness to be a race-neutral reason); and
Sanders v. State, 623 So.2d 428, 432 (Ala.Crim.App.
1993)(recognizing that age can provide a race-neutral
reason). Additionally, in light of the deference accorded to
the trial court in determining whether a prosecutor's
reasons are pretextual or sham, we cannot hold that Floyd
satisfied his burden of proving that the prosecutor engaged
in actual, purposeful discrimination.
" Deference to trial court findings on the issue of
discriminatory intent makes particular sense in this context
because, as we noted in Batson, the finding will 'largely
turn on evaluation of credibility.' 476 U.S., at 98, n.
21. In the typical peremptory challenge inquiry, the decisive
question will be whether counsel's race-neutral
explanation for a peremptory challenge should be believed.
There will seldom be much evidence bearing on that issue, and
the best evidence often will be the demeanor of the attorney
who exercises the challenge. As with the state of mind of a
juror, evaluation of the prosecutor's state of mind based
on demeanor and credibility lies 'peculiarly within a
trial judge's province.' Wainwright v. Witt,
469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985),
citing Patton v. Yount, 467 U.S. 1025, 1038, 104
S.Ct. 2885, 81 L.Ed.2d 847 (1984)."
Hernandez v. New York, 500 U.S. at 364.
before this Court establishes that the trial court's
finding that Floyd did not satisfy his burden of proving that
the prosecutor engaged in actual, purposeful discrimination
in the selection of the jury is clearly erroneous. "
'[A] finding is " clearly erroneous" when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'"
Anderson v. Bessemer City, 470 U.S. 564, 573, 105
S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States
v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct.
525, 92 L.Ed. 746 (1948)). Because this Court does not have a
firm conviction from the record before us that the prosecutor
committed a Batson or J.E.B. violation during the selection
of Floyd's jury, Floyd has not established that the
decision of the Court of Criminal Appeals affirming the trial
court's finding that no Batson or J.E.B. violation
occurred in the selection of his jury conflicts with prior
Floyd contends that the decision of the Court of Criminal
Appeals upholding the trial court's refusal to admit into
evidence all of Floyd's statements to law-enforcement
officers conflicts with Rule 801(c), Ala. R. Evid.
Specifically, Floyd argues that the trial court exceeded the
scope of its discretion by refusing to admit into evidence
all the statements he made to law-enforcement officers
because, he says, those statements were admissible nonhearsay
statements and their preclusion from evidence inhibited the
jury's ability to evaluate the credibility and
reliability of his September 27, 2004, statement, which was
admitted into evidence, and prevented him from presenting a
September 27, 2004, Floyd admitted to law-enforcement
officers that he shot Waylon Crawford. The trial court
admitted Floyd's confession into evidence. During the
12-year investigation of the offense, Floyd made several
other statements to law-enforcement officers. In those
statements, Floyd either denied participation in the offense
or provided information about the offense to law-enforcement
officers that differed from the statement he had made on
September 27, 2004. The State filed a motion in limine asking
the trial court to prevent Floyd from making any reference
either directly or indirectly to any statement he had made to
law-enforcement officers or to the contents of the statement
unless the State notified the Court and the defense that it
intended to introduce that statement. The trial court granted
the motion and refused to admit any evidence regarding any of
the statements Floyd made to law-enforcement officers other
than evidence concerning the statement he made on September
" The question of admissibility of evidence is generally
left to the discretion of the trial court, and the trial
court's determination on that question will not be
reversed except upon a clear showing of abuse of discretion
Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000).
802, Ala. R. Evid., provides: " Hearsay is not
admissible except as provided by these rules or other rules
adopted by the Supreme Court of Alabama or by statute."
Rule 801(c), defines hearsay as " a statement other than
one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted." Generally, " '[t]he declarations of
the accused made after the commission of the crime, are not
admissible in his favor unless they constitute a part of the
res gestae or are introduced by the State.'"
Wilsher v. State, 611
So.2d 1175, 1186 (Ala.Crim.App. 1992) (quoting Harrell v.
State, 470 So.2d 1303, 1306 (Ala. Cr. App. 1984)).
Miller v. State, 441 So.2d 1038, 1039 (Ala.Crim.App.
1983), the Court of Criminal Appeals addressed a
defendant's attempt to admit into evidence a statement he
had made to law-enforcement officers in an effort to present
his testimony without being subjected to cross-examination.
That court stated:
" 'A " self-serving declaration" is a
statement made out of Court which is favorable to the
interest of the declarant. Unless, for some recognized
reason, it comes within the exception to the general rule,
such a declaration is not admissible in evidence when
tendered by the favored party, if not a part of the res
gestae. The prime objection to this character of proof is
that it does violence to the hearsay rule. Further, it opens
the door to the introduction of untrustworthy declarations
and permits a party to manufacture his own
Miller, 441 So.2d at 1039 (quoting Jarrell v.
State, 35 Ala.App. 256, 50 So.2d 767 (1950)).
contends that the trial court erred in refusing to admit into
evidence all of his statements to law-enforcement officers
because, he says, the statements are not hearsay. He
maintains that he did not offer the statements to prove the
truth of the contents of the statements; rather, he says, he
offered the statements for the sole purpose of proving that
he made other statements and that those other statements are
inconsistent with his September 27, 2004, confession.
However, to achieve Floyd's objective for admitting the
other statements into evidence -- proving that his September
27, 2004, confession was unreliable in light of the
inconsistency of that statement with other statements he had
made to law-enforcement officers -- Floyd offered the other
statements to prove " the truth of the matter
asserted" in each statement, i.e., that he did not
commit the offense. Thus, Floyd's statements, other than
his confession, which was submitted into evidence by the
State, made to law-enforcement officers were hearsay, and the
trial court did not exceed the scope of its discretion by
refusing to admit them into evidence. The judgment of the
Court of Criminal Appeals upholding the trial court's
refusal to admit all statements Floyd made to law-enforcement
officers into evidence does not conflict with Rule 801(c),
Ala. R. Evid.
Floyd contends that the decision of the Court of Criminal
Appeals that the trial court did not err in denying his
motion for a new trial based on newly discovered evidence
conflicts with Ex parte Heaton, 542 So.2d 931 (Ala. 1989).
Specifically, Floyd contends that the trial court exceeded
the scope of its discretion in denying his motion for a new
trial because, he says, the evidence satisfied all the
requirements for a new trial.
trial Floyd maintained that Paul Wayne Johnson, not he, had
committed the offense and that Johnson, by threatening to
harm Floyd and his family, had pressured him into confessing
that he committed the offense. After Floyd had been convicted
and sentenced, Dorothy Dyson, a friend of Floyd's family,
came forward stating that on the night Crawford was murdered
she saw Johnson and that his shirt was covered with blood. In
light of this newly discovered evidence, Floyd moved for a
new trial, arguing that the evidence supported the
defense's theory that Johnson, not he, committed the
offense. The trial court, after conducting a hearing at which
Dyson testified, entered an order questioning Dyson's
credibility and denying Floyd's motion for a new trial.
" '" The appellate courts look with disfavor
on motions for new trials based on newly discovered
evidence and the decision of the trial court will not be
disturbed absent abuse of discretion." Further, "
this court will indulge every presumption in favor of the
correctness" of the trial judge's decision. The
trial court is in the best position to determine the
credibility of the new evidence.'
" Isom v. State, 497 So.2d 208, 212
(Ala.Crim.App. 1986) (citations omitted). To establish a
right to a new trial based on newly discovered evidence,
the petitioner must show the following: (1) that the
evidence will probably change the result if a new trial is
granted; (2) that the evidence has been discovered since
the trial; (3) that it could not have been discovered
before the trial by the exercise of due diligence; (4) that
it is material to the issue; and (5) that it is not merely
cumulative or impeaching. ... While all five requirements
ordinarily must be met, the law has recognized that in
certain exceptional circumstances, even if the newly
discovered evidence is cumulative or impeaching, if it
appears probable from looking at the entire case that the
new evidence would change the result, then a new trial
should be granted."
Ex parte Heaton, 542 So.2d at 933 (emphasis added;
some citations omitted).
" The granting of a new trial on the basis of newly
discovered evidence 'rests in the sound discretion of the
trial court and depends largely on the credibility of the new
evidence.' Robinson v. State, 389 So.2d 144
(Ala. Crim. App.)[,] cert. denied, 389 So.2d 151 (Ala. 1980).
The trial court is the factfinder in a hearing on a motion
for new trial. One condition of the trial court's
granting a new trial based on newly discovered evidence is
that the court must believe the evidence presented at the
hearing. Seibert v. State, 343 So.2d 788 (Ala.
McDonald v. State, 451 So.2d 440, 442 (Ala.Crim.App.
the guidelines for granting a new trial in light of newly
discovered evidence set forth in Ex parte Heatonand
McDonaldto the facts of this case, we conclude that the trial
court did not exceed the scope of its discretion in denying
Floyd's motion for a new trial. At the end of Dyson's
testimony, the trial court questioned Dyson to address its
concerns about the credibility of her testimony. The record
indicates that the trial court's concerns were not abated
by Dyson's responses. Because " a condition to the
granting of a new trial on the basis of newly discovered
evidence is that the trial court must believe the evidence
presented," McMillian v. State, 594 So.2d 1253,
1264 (Ala.Crim.App. 1991), and the record indicates that
Dyson's testimony did not satisfy this criteria, this
Court cannot conclude that the trial court exceeded the scope
of its discretion by denying Floyd's motion for a new
trial based on newly discovered evidence. Dowdy v.
Gilbert Eng'g Co., 372 So.2d 11, 12 (Ala. 1979) (
" A judge abuses his discretion only when his decision
is based on an erroneous conclusion of law or where the
record contains no evidence on which he rationally could have
based his decision." (citing Premium Serv. Corp. v.
Sperry & Hutchinson, Co., 511 F.2d 225 (9th Cir. 1975)).
decision of the Court of Criminal Appeals affirming the trial
court's denial of Floyd's motion for a new trial does
not conflict with Ex parte Heaton and the applicable caselaw.
on the foregoing, the judgment of the Court of Criminal
Appeals is affirmed.
C.J., and Bolin, Parker, Main, and Bryan, JJ., concur.
and Wise, JJ., recuse themselves.[*]
Anthony Floyd argues, among other things, that the trial
court erred in not admitting statements he made to police
that were inconsistent with his out-of-court confession to
police. He contends that the excluded statements tend to
prove that his confession was not credible and that their
exclusion prevented him from presenting a complete defense.
The main opinion rejects this contention with the reasoning
that the proffered statements were inadmissable hearsay
because " to achieve Floyd's objective for admitting
the other statements into evidence -- proving that his
September 27, 2004, confession was unreliable in light of the
inconsistency of that statement with other statements he had
made to law-enforcement officers -- Floyd [necessarily sought
to introduce] the other statements to prove 'the truth of
the matter asserted' in [those statements]." __
So.3d at __.
the unique circumstances of this case and the content of many
of those other statements, I am not persuaded that the stated
rationale for upholding their exclusion - that " Floyd
[necessarily sought] ... to prove the 'truth of the
matter asserted'" in them -- is correct. Even if the
trial court erred in excluding the subject statements on the
ground now urged by Floyd, however, this ground was not
raised below, and I cannot conclude that the exclusion of the
statements represents plain error.
said, after reviewing the record in this case as it now
stands following a second remand, I have substantial concerns
regarding the so-called Batson/J.E.B. challenges to
prospective jurors no. 5/T.M.A. and no. 58/I.C., and I
therefore respectfully must dissent.
[*]Justice Shaw and Justice Wise were members
of the Court of Criminal Appeals when that court considered
This case was originally assigned to
another Justice on this Court; it was reassigned to Justice
Stuart on January 5, 2015.
Maxwell stated that he selected the jury
for the State with the exception of one juror, who, although
he had reservations about her serving in light of her
responses to questions about capital murder, the district
attorney directed not be removed by a State peremptory
The record indicates that the court
provided at least three types of strike lists for the State
and the defense to use during jury selection. One strike list
provided each veniremember's name with an assigned juror
number; another strike list included each veniremember's
name, juror number, date of birth, sex, race, and address,
and a third strike list provided each veniremember's
name, juror number, date of birth, sex, race, occupation,
employer, partial address, spouse's name, and
The State refers to prospective jurors
using initials, e.g., " Juror J.B." ; Floyd uses
numbers, e.g., " Juror no. 30." For purposes of
this opinion, the first time a prospective juror is
referenced in a discussion, we will identify the juror by
both number and initials. Thereafter, we will refer to that
juror using initials.
Floyd did not argue that Maxwell had
selected the juries for the State in any of the cases in
which the defendant's conviction had been
Because Floyd's statements made to
law-enforcement officers, other than his confession, were
inadmissible hearsay; do not fall within an exception to the
hearsay rule, see Rules 803 and 804, Ala. R. Evid.; and were
not by definition not hearsay, see Rule 801(d), Ala. R.
Evid., we pretermit discussion of the other grounds of
conflict Floyd raises in this regard.
[*]Justice Shaw and Justice Wise were members
of the Court of Criminal Appeals when that court considered
For the reason expressed in my special
writing in Ex parte Floyd, [Ms. 1080107, September 28, 2012]
__ So.3d __, __, (Ala. 2012) (Murdock, J., concurring in the
result), I continue to be concerned about the appropriateness
of allowing Batson challenges to be made in capital cases for
the first time on appeal. As I noted in Ex parte Floyd,
however, the State has not objected to this procedure in the
present case, and, as a result, I and the other members of
this Court have been placed in the position of assessing the
Batson issues as best we can under the circumstances.