from Houston Circuit Court (CC-12-878; CC-12-879; CC-12-880;
CC-12-881; and CC-12-882)
Clark Petersen was convicted of one count of murder made
capital because two or more persons were murdered by one act,
scheme, or course of conduct, see §
13A-5-40(a)(10), Ala. Code 1975; three counts of murder made
capital because three people were killed during the course of
a burglary, see § 13A-5-40(a)(4) Ala. Code
1975; and one count of attempted murder, see
§§ 13A-6-2 and 13A-4-2, Ala. Code 1975. During the
penalty phase of Petersen's trial, the jury recommended
by a vote of 10 to 2 that Peterson be sentenced to death on
the capital-murder convictions. The circuit court then
sentenced Petersen to death for his capital-murder
convictions and to life imprisonment for his attempted-murder
conviction. This appeal, which is automatic in a case
involving the death penalty, followed. See
§ 13A-5-53, Ala. Code 1975.
and Procedural History
sentencing order, the circuit court recited the following
facts underlying Petersen's convictions and sentences:
"On August 9, 2012, Ryan Clark Petersen shot and killed
Cameron Paul Eubanks, Tiffany Paige Grissett and Thomas
Robins, and seriously wounded Scotty Russell at Teasers
nightclub in rural Houston County. Petersen used a Glock
[brand] 9mm pistol he purchased approximately one month
earlier, and had been issued a concealed carry pistol permit
by the Coffee County sheriff's department a few days
before the shootings.
"Teasers is a lawfully operated nightclub, licensed to
sell alcoholic beverages, and features scantily clothed women
dancers, also referred to as performers, as entertainers for
patrons. Teasers is located on U.S. highway 84 in the rural
unincorporated area of Wicksburg in western Houston County.
Typically, Teasers requires a 'coverage charge' for
entry. But, the evening of August 9, 2012, the nightclub
offered a special discount it called 'Tattoo
Thursday.' Customers could show their personal tattoo and
gain entry for free without paying a cover charge. Teasers
and the dancers typically make money by either the customers
paying the dancers for dances or customers purchasing drinks
for the dancers. Either way, the proceeds are shared between
the club and the dancers. Teasers does not accept any form of
payment other than cash, and an ATM machine is on the
premises. The building is divided into two areas for
customers: a larger room that holds a bar, a DJ booth,
numerous tables and chairs and dance stages for the dancers,
and a smaller room with couches for 'private dances,'
also referred to as 'lap dances.' During normal
business operation the public areas are dimly lit and feature
recorded music and strobe lighting. Teasers has a 'no
touch' policy, meaning patrons are not permitted any
physical contact with the dancers. Also, state licensing
regulations require the dancers to have at least minimal
coverage of the breasts [and] pelvic areas. Firearms are not
permitted inside the nightclub. Teasers is operated as a
private membership club under Alabama law.
"Petersen, an Enterprise resident, traveled alone in his
car to Teasers, about fifteen miles east of Enterprise, the
evening of August 9, 2012. Petersen entered the club by
showing his tattoo and was not charged a fee. He had
approximately three-hundred dollars in United States currency
with him. Holly Lowery was a waitress who served Petersen.
She testified Petersen was served beer and other drinks, and
he purchased drinks for the dancers. Petersen remained in the
larger dance room. Lowery stated that Petersen was not
intoxicated, but that he was 'buzzed.' She also
described Petersen as 'rude.' Crystal Sellers was a
dancer that night and testified that Petersen was
'drunk' and was talking to everyone and touching
other people. She stated he was stumbling, he was referring
to himself as 'Clark Kent' and people were laughing
"Bruce Middleton is a co-owner of Teasers (along with
Paul Eubanks, Cameron's father). Middleton was working at
Teasers on the night of August 9, 2012. An employee came to
Middleton in his office and reported that Paige, one of the
dancers, was having problems with Petersen. Middleton had
Petersen brought to his office. Middleton testified that
Petersen did not appear intoxicated, but he was upset over a
dispute with a dancer about a 'dollar dance.'
Middleton stated that Petersen told him he gave Paige a
twenty dollar bill and he was being 'ripped off.'
Middleton offered to refund twenty dollars to Petersen, who
became belligerent. At this point, Middleton told Petersen he
had to leave the club since he had been warned twice earlier
in the evening about 'groping' dancers. Middleton
stated Petersen began cursing and refused to leave.
"When Petersen refused to leave the office, Middleton
and Joe Glow (an employee) grabbed Petersen's wrists and
arms and began to forcibly remove him. Cameron Eubanks, also
an employee, who was working the entry area, aided the
physical removal of Petersen. James Williams, the DJ, came
and followed the men removing Petersen. William Gaines, the
bartender, testified that Petersen was resisting the men and
was 'flailing' and grabbing the door frame in
resistance. However, Petersen [was] successfully physically
removed with no injury to anyone, including Petersen. A
portion of Petersen's removal [was] recorded on video by
the nightclub's video surveillance system.
"Lorainne Peacock was in her vehicle in the Teasers
parking lot and saw Petersen being forcibly removed through
the front door. She testified that she witnessed Petersen
calmly walk to his Ford Taurus automobile in the parking lot,
and enter the front passenger door. Petersen then got out of
the car with a pistol and walked back to the front door of
Teasers. Cameron Eubanks was still standing just outside the
front door. Petersen approached Eubanks and shot him with the
pistol six times: twice in the chest, twice in the abdomen,
once in the pelvic region and once in the head.
"Petersen then entered the front door by either stepping
over Eubanks's body or around him. As Petersen made
entry, a patron, Scotty Russell, was in the club and
proceeding towards the front door exit. Russell was not aware
of the murder that just occurred. Russell was suddenly and
unexpectedly confronted by Petersen in the narrow hallway
just inside the front door. Upon seeing ... Petersen with a
handgun Russell instinctively threw his right arm up towards
his head and Petersen shot him in the arm. Russell testified
that he 'played dead' and heard Petersen say to
someone else 'alright bitch it's your turn now'
and he heard more shooting. Russell was able to exit the
club. Russell spent three days in the hospital for his
injury. The gunshot shattered the bone in his right arm,
requiring the installation of a rod, plate and three pins in
surgery, along with one hundred and thirty (130) stitches and
physical therapy. Russell spent five months undergoing
physical rehabilitation, and testified his right arm is
eighty-eight (88) percent functional and shrapnel remains in
his arm. Russell subsequently filed a lawsuit against Teasers
in which he alleged, through his attorney, that Petersen was
"Petersen, in the main room of the club, then shot
Tiffany Paige Grissett, a dancer, twice in the back, causing
her death. Both bullets passed through Grissett's body
and at least one lodged in a wall. Petersen then entered the
smaller private dance room and fatally shot Thomas Robins, a
customer, in the chest. Petersen's gun had ten bullets,
and at this point he has used each one in a deadly manner on
another human being (eight in the torso, one in the head, one
in an arm blocking the head).
"Petersen then left Teasers through the front door into
the parking lot. He went around to the rear of the building.
By this time, Paul Eubanks, who lived in a home immediately
behind Teasers was aware of the shooting in the club. Paul
Eubanks [saw] Petersen fleeing to the west behind the club
and fire[d] three shots with his own pistol at Petersen, but
[did] not hit him. Petersen successfully scale[d] a fence
into an adjoining field in the darkness.
"The Houston County sheriff and deputies responded to
the club, but [were] unable to locate Petersen during the
night. In the early dawn of August 10, 2012, Petersen
voluntarily [came] out of the field and [was] arrested.
Petersen had visible scrapes and scratches from fleeing into
the field. Petersen [was] immediately taken to the Houston
County jail. As part of the booking process the jail's
physician's assistant, Jason Smoak, examine[d] Petersen
for physical injuries and [found] none, other than the
scrapes and scratches from the field where he fled after the
murders. When Smoak ask[ed] Petersen how he fe[lt], Petersen
answer[ed] by saying 'I feel like I just shot three
people.' Smoak further stated that Petersen did not
appear to be under the influence of any substance, his speech
was not slurred, and he responded appropriately to questions.
"Thereafter, on August 10, 2012, Bill Rafferty, an
investigator with the Houston County sheriff's department
interview[ed] Petersen. Petersen [told] Rafferty that he
[was] bipolar and [was] prescribed Seroquel, Klonopin and
Zoloft for his mental health condition. Petersen state[d] he
was drinking at Teasers and ran out of money, but the dancer
nevertheless ordered a drink and wanted him to pay. Petersen
also state[d] he was taken to an office and was
'manhandled' out the front door by three men.
Petersen [told] Rafferty he then did something
'crazy' and 'without thinking I did something I
can't take back' out of anger. Petersen [got] the gun
from his car's glove box and admit[ted] to shooting
someone, and having gunshots fired at him. He discusse[d] the
circumstances of his purchase of the pistol and obtaining a
pistol permit. Petersen state[d] he [did] not remember
shooting in the club and describe[d] his conduct as 'like
an out of body experience.' At one point, Petersen
ask[ed] Investigator Rafferty if he shot a girl. Petersen
state[d] that it 'drives me crazy' to be touched the
way he was by the owner and employees and that he was
'disrespected.' He [went] on to make statements to
Rafferty that 'I can't believe I did this shit over
that' and 'I don't remember firing in the
building' or going to the smaller private dance room.
Petersen state[d] that he 'blacked out' and denie[d]
wanting or intend[ing] to kill anyone. He state[d] he only
remember[ed] killing Eubanks, but not the shooting of
Russell, Grissett, and Robins.
"Dr. Alfredo Parades, a state medical examiner of the
Alabama Department of Forensic Sciences, performed the
postmortem examination of Tiffany Paige Grissett. She was
shot twice in the back, with one shot entering her left lower
back and exiting through her left side below her breast and
the other entering her right middle back and existing through
her right upper abdomen. Both gunshots were fatal and struck
internally the bottom of her lung, her thoracic aorta and her
stomach. Grissett suffered massive internal hemorrhaging. Dr.
Parades found gunpowder stippling on her skin, which
indicate[d] Petersen was at close range when he shot her,
approximately eighteen or twenty-four inches away. Dr.
Parades stated Grissett survived long enough to feel pain
from her injuries.
"Dr. Steven Denton, a state medical examiner of the
Alabama Department of Forensic Sciences, performed a
postmortem examination of Thomas Robins and Cameron Eubanks.
Robins was shot once in the lower left chest. The bullet
struck Robins's ribs, diaphragm, colon, thoracic aorta
and spine, and he lost over half of his body's blood. Dr.
Denton recovered the bullet just under the skin of
Robins's back. Dr. Denton stated Robins survived for a
few minutes before dying.
"Dr. Denton found six bullet wounds in his postmortem
examination of Cameron Eubanks. Dr. Denton [could] state the
order of the wounds. The gunshots [were] as follows: (1) left
chest; no damage to internal organs; bullet exited the body
(2) upper abdomen/lower chest; internal wounds to diaphragm,
liver, ribs, lower lung, with a large amount of blood loss;
no exit wound (3) outer right side of the abdomen; exit right
back (4) lower right abdomen; small intestine wounded; bullet
penetrated and stopped in the lumbar spine (5) right
pelvic-thigh area; exit left buttocks (6) head wound; top of
head, with a sharp downward trajectory into and through the
brain; immediate loss of consciousness.
"Adam Zeh, an investigator with the Houston County
sheriff's department, testified regarding the crime scene
at Teasers. Petersen's car was found with the glove box
open and the keys were recovered in the front passenger
floor. The gun case for the Glock pistol and another clip
with ten bullets for the pistol were also found in
Petersen's car. A receipt from Publix grocery store in
Enterprise for two bottles of cough syrup containing DXM
[('dextromethorphan'] was recovered. Zeh testified he
recovered a video surveillance system from Teasers nightclub
which recorded portions of the events. His investigation
determined that Petersen was in Teasers for about three hours
and forty-five minutes before he was removed. Petersen began
shooting between 11:30 p.m. and 11:35 p.m. Zeh determined
Petersen bought the pistol on July 5, 2012, at the Ordnance
Depot (a licensed gun dealer) in Daleville, Alabama, for
$499.00. Petersen only had some coins and foreign currency in
his possession when he was arrested. Also, Petersen's
pistol permit expired on August 6, 2013. Zeh also found that
Petersen was treated by South Central Mental Health on August
8, 2012, the day before the shooting, and he had
mental-health appointments scheduled for September 5, 2012,
and September 13, 2012.
"The evidence at trial establishe[d] that Petersen had a
variety of mental health issues. At various times prior to
the homicides, he was diagnosed with bipolar disorder,
depression, anxiety, and mood disorder. On September 30,
2011, Petersen was diagnosed by the South Central Mental
Health Board as meeting the criteria of 'seriously
mentally ill' and consequently disabled due to mental
illness. In March 2012, the Social Security Administration
approved Petersen for disability benefits due to his
mental-health disability. Evidence at trial indicate[d]
Petersen may have used lump sum back payment from the Social
Security Administration to purchase his automobile and the
Glock 9 mm pistol. Petersen volunteered and was inducted into
the United States Navy, but later was involuntarily
discharged based on his failure to disclose his mental health
"Petersen was arrested in 2012 for misdemeanor theft of
property third degree and placed in the Coffee County
sheriff's jail. While in the jail he appeared suicidal
and homicidal to jail officers and the commander on February
1, 2012, filed a petition in the Coffee County probate court
against Petersen for involuntary commitment. The probate
court ordered Petersen committed to the in-patient behavioral
medicine unit (BMU) at the Southeast Alabama Medical Center
(SAMC) in Dothan for evaluation.
"During his hospitalization at the SAMC a psychiatrist,
Dr. Waggoner, diagnosed Petersen as bipolar with psychotic
features and polysubstance abuse. Dr. Waggoner found Petersen
to pose a danger to himself and to others and recommended to
the probate court that Petersen be involuntarily committed to
the State of Alabama for long-term psychiatric treatment at
Searcy State Hospital. At the final hearing before the Coffee
County probate court, with all parties represented by
lawyers, an employee of the South Central Mental health Board
opposed Dr. Waggoner's recommendation, and instead
recommended to the court that Petersen be released to the
care of his mother and receive outpatient treatment for his
mental illness. The probate court entered judgment denying
long-term involuntary commitment to the State of Alabama and
released Petersen to his mother with orders that he receive
out-patient treatment for his mental illness. On the morning
of August 9, 2012, Petersen attended a mental health group
meeting, where he was described as irritable, having
difficulty with anger control and impulse control, that he
'will snap easily' and has limited family support.
Petersen also indicated that he needed more Klonopin.
Patricia Huckabee, a therapy group member, testified Petersen
was crying at the meeting and stated that he needed to see a
"Dr. Mark Cunningham is a clinical and forensic
psychologist who testified for the defense. He conducted a
thorough and exhaustive review of Petersen's mental
health history. Dr. Cunningham gave his opinion that at the
time of the shootings Petersen was experiencing Klonopin
withdrawal and he was abusing DXM (cough medicine), which can
create euphoria, hallucination and a 'high'
experience. Dr. Cunningham also gave his opinion that
Petersen suffers from a mood disorder with autism spectrum
features. Dr. Cunningham testified that at the time of the
crimes Petersen was intoxicated. The evidence also showed
that Petersen received a psychiatric evaluation of social
phobia from Dr. Handal on December 14, 2006, a psychological
evaluation from Dr. Fred George on December 29, 2006,
diagnosis of social isolation and alienation from Dr. Melanie
Cotter on February 5, 2007, and a psychological assessment
from Bradford Mental Health on January 12, 2009.
"Dr. Doug McKeown is a clinical and forensic
psychologist who conducted an examination of Petersen
pursuant to Rule 11.3, Alabama Rules of Criminal Procedure,
to render an opinion regarding Petersen's mental state at
the time of the crimes and his competency to stand trial. Dr.
McKeown testified that Petersen suffers from mood disorder,
substance abuse and he is bi-polar. Dr. McKeown also
testified that in his opinion there is no evidence Petersen
was suffering from severe mental disease or defect at the
time of the crimes or any mental disease or defect that would
render him unable to appreciate the wrongfulness of his acts.
Dr. McKeown stated that Petersen admitted to consuming
'six drinks' at Teasers prior to the murders."
December 22, 2016, the jury found Petersen guilty as charged
in the indictment. During the penalty phase, the jury found
by special verdict forms that the State had established three
aggravating factors beyond a reasonable doubt: (1) that
Petersen created a great risk of death to many persons; (2)
that the capital offense was committed while Petersen was
engaged in the commission of, or an attempt to commit, a
burglary; and (3) that Petersen intentionally caused the
deaths of two or more persons by one act, scheme, or course
of conduct. On January 5, 2017, the jury recommended by a
vote of 10 to 2 that Petersen be sentenced to
March 24, 2017, the circuit court sentenced Petersen to death
for his capital-murder convictions and to life imprisonment
for his attempted-murder conviction. In sentencing Petersen
to death, the court found that the mitigating
circumstances in Petersen's case were substantially
outweighed by the aggravating circumstances. Thereafter,
Petersen filed a timely notice of appeal.
appeal from his convictions and sentence, Petersen raises
numerous issues, including some not raised in the circuit
court. Because Petersen has been sentenced to death, however,
this Court must review the circuit court proceedings under
the plain-error doctrine. See Rule 45A, Ala. R. App.
"'"Plain error is defined as error that has
'adversely affected the substantial right of the
appellant.' The standard of review in reviewing a claim
under the plain-error doctrine is stricter than the standard
used in reviewing an issue that was properly raised in the
trial court or on appeal. As the United States Supreme Court
stated in United States v. Young, 470 U.S. 1, 105
S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine
applies only if the error is 'particularly egregious'
and if it 'seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.' See Ex
parte Price, 725 So.2d 1063 (Ala. 1998), cert. denied,
526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012
"Ex parte Brown, 11 So.3d 933, 935-36 (Ala.
2008)(quoting Hall v. State, 820 So.2d 113, 121-22
(Ala.Crim.App.1999)). See also Ex parte Walker, 972
So.2d 737, 742 (Ala. 2007); Ex parte Trawick, 698
So.2d 162, 167 (Ala. 1997); Harris v. State, 2 So.3d
880, 896 (Ala.Crim.App.2007); and Hyde v. State, 778
So.2d 199, 209 (Ala.Crim.App.1998)('To rise to the level
of plain error, the claimed error must not only seriously
affect a defendant's "substantial rights," but
it must also have an unfair prejudicial impact on the
jury's deliberations.'). Although the failure to
object in the trial court will not preclude this Court from
reviewing an issue under Rule 45A, Ala. R. App. P., it will
weigh against any claim of prejudice made on appeal. See
Dotch v. State, 67 So.3d 936, 965
(Ala.Crim.App.2010)(citing Dill v. State, 600 So.2d
343 (Ala.Crim.App.1991)). Additionally, application of the
"'"'is to be "used sparingly, solely
in those circumstances in which a miscarriage of justice
would otherwise result."'" Whitehead v.
State, [777 So.2d 781], at 794 [(Ala.Crim.App.1999],
quoting Burton v. State, 651 So.2d 641, 645
(Ala.Crim.App.1993), aff'd, 651 So.2d 659 (Ala. 1994),
cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862
"Centobie v. State, 861 So.2d 1111, 1118
Phillips v. State, [Ms. CR-12-0197, December 18,
2015]___ So. 3d___, ___ (Ala.Crim.App.2015),
aff'd, [Ms. 1160403, October 19, 2018] ___ So.3d
___ (Ala. 2018). With these principles in mind, we address
Petersen's claims on appeal.
argues that he was deprived of his right to an impartial jury
as a result of the circuit court's failure to remove
certain jurors who, he says, were "unfit to serve."
(Petersen's brief, p. 24.) It is well settled that
"'[t]o justify a challenge for cause, there must be
a proper statutory ground or "'some matter which
imports absolute bias or favor, and leaves nothing to the
discretion of the trial court.'" Clark v.
State, 621 So.2d 309, 321 (Ala. Cr. App. 1992) (quoting
Nettles v. State, 435 So.2d 146, 149 (Ala. Cr. App.
1983)). This Court has held that "once a juror indicates
initially that he or she is biased or prejudiced or has
deep-seated impressions" about a case, the juror should
be removed for cause. Knop v. McCain, 561 So.2d 229,
234 (Ala. 1989). The test to be applied in determining
whether a juror should be removed for cause is whether the
juror can eliminate the influence of his previous feelings
and render a verdict according to the evidence and the law.
Ex parte Taylor, 666 So.2d 73, 82 (Ala. 1995). A
juror "need not be excused merely because [the juror]
knows something of the case to be tried or because [the
juror] has formed some opinions regarding it."
Kinder v. State, 515 So.2d 55, 61 (Ala. Cr. App.
1986). Even in cases where a potential juror has expressed
some preconceived opinion as to the guilt of the accused, the
juror is sufficiently impartial if he or she can set aside
that opinion and render a verdict based upon the evidence in
the case. Kinder, at 60-61. In order to justify
disqualification, a juror "'must have more than a
bias, or fixed opinion, as to the guilt or innocence of the
accused'"; "'[s]uch opinion must be so
fixed ... that it would bias the verdict a juror would be
required to render.'" Oryang v. State, 642
So.2d 979, 987 (Ala. Cr. App. 1993) (quoting Siebert v.
State, 562 So.2d 586, 595 (Ala. Cr. App. 1989)).'
"Ex parte Davis, 718 So.2d 1166, 1171-72 (Ala.
"'"The qualification of prospective jurors
rests within the sound discretion of the trial judge."
Morrison v. State, 601 So.2d 165, 168
(Ala.Crim.App.1992); Ex parte Cochran, 500 So.2d
1179, 1183 (Ala. 1985). This Court will not disturb the trial
court's decision "unless there is a clear showing of
an abuse of discretion." Ex parte Rutledge, 523
So.2d 1118, 1120 (Ala.1988). "This court must look to
the questions propounded to, and the answers given by, the
prospective juror to see if this discretion was properly
exercised." Knop [v. McCain], 561 So.2d 
at 232 [(Ala. 1989)]. We must consider the entire voir dire
examination of the juror "in full context and as a
whole." Ex parte Beam, 512 So.2d 723, 724 (Ala.
1987); Ex parte Rutledge, 523 So.2d at 1120.'
"Ex parte Burgess, 827 So.2d 193, 198 (Ala.
"'Even though a prospective juror may initially
admit to a potential for bias, the trial court's denial
of a motion to strike that person for cause will not be
considered error by an appellate court if, upon further
questioning, it is ultimately determined that the person can
set aside his or her opinions and try the case fairly and
impartially, based on the evidence and the law.'
"Ex parte Land, 678 So.2d 224, 240 (Ala. 1996).
"'A trial judge is in a decidedly better position
than an appellate court to assess the credibility of the
jurors during voir dire questioning. See Ford v.
State, 628 So.2d 1068 (Ala.Crim.App.1993). For that
reason, we give great deference to a trial judge's ruling
on challenges for cause. Baker v. State, 906 So.2d
"Turner v. State, 924 So.2d 737, 754
Bohannon v. State, 222 So.3d 457, 473-74
Petersen argues that prospective juror R.D., a former
sheriff's deputy, should have been removed for cause
because, he says, it was revealed that R.D.: (1) was a
convicted felon; (2) "would prefer the defendant to
testify"; (3) was "pro death sentence" and
believed in a "life for a life"; (4) believed that
a person that killed another "should forfeit his life
upon conviction"; (5) indicated that he would credit
law-enforcement testimony with more importance than other
testimony; and (6) did not disclose during voir dire that he
had "discussed the case" and "seen local news
coverage" before reporting for jury duty.
(Petersen's brief, pp. 24-25.) Petersen did not move to
remove R.D. for cause; therefore, we review this claim for
plain error. See Rule 45A, Ala. R. App. P.
voir dire examination, R.D. was asked to appear before the
circuit court separately to answer questions about the
responses he had given on his juror questionnaire. During
that time, the following occurred:
"[R.D.:] Yesterday, when the defense attorney asked do
you know anybody, I didn't raise my hand because I would
have had to keep it up.
"THE COURT: Right. Yeah.
"[R.D.:] I know everybody.
"THE COURT: You probably know all the sheriff's
"[R.D.:] I know them all.
"THE COURT: Let me ask you this. The fact that you know
them, could you still give both sides a fair trial, or do you
think it would be a problem for you?
"[R.D.:] No. I would listen to the evidence.
"THE COURT: So, again, if you think the State has proven
guilt beyond a reasonable doubt, would you have any problem
"THE COURT: And then, likewise, if you think the State
has not proven guilt beyond a reasonable doubt, would you
have any problem voting not guilty?
"THE COURT: And if you are on the jury and the jury does
find him guilty of a capital offense, based on your knowledge
of the sheriff's employees as well as your background in
law enforcement, could you still follow the law in
determining whether to vote for death or life without parole?
"THE COURT: In other words, you wouldn't--it
wouldn't influence you to be more likely to vote for
death because the State, through the D.A., through the
sheriff and his deputies, are seeking the death penalty? You
wouldn't be more likely to lean for death in that
"THE COURT: And if the evidence and the law supports a
verdict of life without parole, you would have no problem
returning a verdict of life without parole?
"THE COURT: Any questions, [prosecutor]?
"[PROSECUTOR:] No. I saw his response in his thing.
"THE COURT: [Defense counsel, ] briefly?
"[DEFENSE COUNSEL:] [R.D.], in reference to a couple of
things in your questionnaire, first of all, you're a
retired police officer?
"[DEFENSE COUNSEL:] For, I'm assuming, a number of
years, a good long time.
"[DEFENSE COUNSEL:] I mean, you have a working knowledge
of criminal laws.
"[DEFENSE COUNSEL:] Do you understand that some deaths,
depending on the circumstances, aren't capital murder?
"[DEFENSE COUNSEL:] There are other charges like
manslaughter and things like that.
"[DEFENSE COUNSEL:] And so, just because someone dies,
there's not a capital offense that we could put someone
to death for. You already know that? Right?
"[DEFENSE COUNSEL:] But, in your questionnaire--you
know, we were talking about the death penalty--you put in
here a life for a life. That kind of implies, you know, if
you kill somebody, you must be put to death. Is that your
personal feeling on it?
"[R.D.:] I'll listen to the evidence. But, you know,
I'm pro death sentence. I mean, I believe in the death
"[DEFENSE COUNSEL:] But, do you also--are you able to
follow the law and consider the mitigating circumstances, the
reasons that we get to where we are, and if those mitigating
reasons outweigh death, could you vote for life without?
"[DEFENSE COUNSEL:] Even if convicted of capital murder,
can you vote for life without?
"[DEFENSE COUNSEL:] Okay. In another answer, you said
when a person takes the life of another and he's found
guilty of capital murder, he should forfeit his life upon
conviction. And I guess that's what I'm asking. You
can amend--are you saying you can amend that belief--
"[R.D.:] I mean, I'll listen to--
"[DEFENSE COUNSEL:] --and consider--
"[R.D.:] I'll consider it and listen to the
evidence. But I believe in the death penalty. I'm not
going to stand here and tell you I don't.
"[DEFENSE COUNSEL:] Right. And I'm not going to sit
here and tell you that I don't, necessarily. But you must
agree there are some cases that it's appropriate and some
that are not.
"[DEFENSE COUNSEL:] You understand that?
"[DEFENSE COUNSEL:] And I guess that's all I'm
asking, is that you would consider the facts of the case and
determine whether it's appropriate, not just blanket
"[DEFENSE COUNSEL:] --got to have it.
"[R.D.:] Uh-huh. "THE COURT: That's fine.
could have been removed for cause under § 12-16-150(5),
Ala. Code 1975, because, according to his juror
questionnaire, he was convicted of a felony--theft of
property; nothing in the excerpts from his voir dire
examination quoted above, however, indicate that the court
should have sua sponte removed him for cause. Although R.D.
did state that he supported the death penalty, he did not
indicate that he would automatically vote to impose the death
penalty in every capital case. Rather, he indicated that he
would consider and would be able to impose a sentence of
imprisonment for life without the possibility of parole in an
appropriate case. Regardless, because Petersen used one of
his peremptory strikes to remove R.D. from the venire, any
error in the failure of the court to sua sponte remove R.D.
is harmless. See McMillan v. State, 139 So.3d 184,
258 (Ala.Crim.App.2010)(citing Bethea v. Springhill
Mem'l Hosp., 833 So.2d 1 (Ala. 2002))(noting that
the "the Alabama Supreme Court has held that the failure
to remove a juror for cause is harmless when that juror is
removed by the use of a peremptory strike"). To the
extent that Petersen is arguing that he should not have been
forced to use one of his peremptory strikes to remove R.D.
from the venire, this Court has found that the failure of a
court to sua sponte remove a juror from the venire does not
rise to the level of plain error where there is no indication
in the record that the juror could not be fair and impartial.
See Lee v. State, 898 So.2d 790, 845 n.11
(Ala.Crim.App.2001) (finding that, where there was no
indication in the record that the prospective juror could not
be fair and impartial, no plain error occurs when a defendant
uses a peremptory strike to remove that prospective juror
from the venire). Thus, Petersen is due no relief on this
Petersen contends that the circuit court erred in failing to
sua sponte remove certain veniremembers--S.D., G.D., and
D.G.--who, he says, had "personal and professional
relationships with the prosecution." (Petersen's
brief, p. 26.) Although it appears from the record that
Petersen moved to remove S.D. for cause (R. 952), Petersen
did not move to remove either G.D. or D.G. for cause; thus,
we review this claim as to G.D. and D.G. for plain error.
See Rule 45A, Ala. R. App. P.
with regard to S.D., Petersen contends that S.D.'s job as
a software engineer for a company contracted by the district
attorney's office meant that his "financial well
being is associated with his job working" with that
office and, thus, that the court should have removed him from
the jury. (Petersen's brief, p. 26.) During voir dire,
however, S.D. stated that he did not interact with the
district attorney and affirmed that he could fair to both
sides. (R. 852-55, 858.) He also stated that he did not
believe his "financial well-being" would bias his
verdict. (R. 857.)
Court has previously recognized that, where there is no proof
that a veniremember would not render a fair, just, and
impartial verdict, the fact that he or she was employed by
the district attorney's office does not alone impute bias
as a matter of law warranting removal. See, e.g.,
Lowe v. State, 384 So.2d 1164, 1171
(Ala.Crim.App.1980). Thus, the court committed no error in
failing to remove prospective juror S.D. for cause.
Petersen argues that the court should have sua sponte removed
prospective juror G.D. for cause because, during voir dire
and on his questionnaire, G.D. indicated that he was related
to Captain William Rafferty with the Houston County
Sheriff's Department, the primary investigator in this
case. (Petersen's brief, p. 27.) The record indicates
that G.D.'s niece was married to Cpt. Rafferty. (R. 611.)
G.D. was later called back into the courtroom along with a
few other veniremembers and asked whether he could set aside
any personal beliefs and follow Alabama law concerning the
death penalty and whether he could consider recommending a
life-imprisonment-without-parole sentence if the evidence
supported such a finding. (R. 916-17.) G.D., along with the
other veniremembers, indicated that he could. Id.
When Petersen's defense counsel was given an opportunity
to further question G.D. about his relationship with Cpt.
Rafferty, counsel failed to do so. (R. 917-18.) Later on,
however, Petersen used one of his peremptory strikes to
remove G.D. from the venire; thus, any error in the failure
of the court to sua sponte remove G.D. is harmless. See
McMillan v. State, 139 So.3d 184, 258
(Ala.Crim.App.2010)(citing Bethea v. Springhill Mem'l
Hosp., 833 So.2d 1 (Ala. 2002))(noting that the
"the Alabama Supreme Court has held that the failure to
remove a juror for cause is harmless when that juror is
removed by the use of a peremptory strike"). Thus,
Petersen is due no relief on this claim.
Petersen contends that the court should have sua sponte
dismissed prospective juror D.G. because, during voir dire,
he admitted that he had a "personal and professional
relationship" with one of the State's key
witnesses--former Houston County Sheriff Andy Hughes.
(Petersen's brief, pp. 27-28.) According to Petersen,
although D.G. stated that he could be fair and impartial,
that affirmation was not enough to absolve D.G. of what
Petersen says was his "probable prejudice" against
his case. (Petersen's brief, p. 28.) Because Petersen
used one of his peremptory strikes to remove D.G. from the
venire, however, any error in the failure of the court to sua
sponte remove D.G. is harmless. See McMillan v.
State, 139 So.3d 184, 258 (Ala.Crim.App.2010)(citing
Bethea v. Springhill Mem'l Hosp., 833 So.2d 1
(Ala. 2002))(noting that the "the Alabama Supreme Court
has held that the failure to remove a juror for cause is
harmless when that juror is removed by the use of a
peremptory strike"). Thus, Petersen is due no relief on
also asserts that the circuit court erroneously failed to
remove prospective jurors who, he says, were
"disqualified from service" because they indicated
that they would credit the testimony of law enforcement with
"more importance than all other testimony."
(Petersen's brief, p. 28.) Specifically, Petersen
challenges seven veniremembers, each of whom, he says,
indicated that he or she would give the testimony of law
enforcement more weight than other testimony. (Petersen's
brief, p. 29.) Petersen did not move to remove those seven
veniremembers for cause below; thus, we review this claim for
plain error. See Rule 45A, Ala. R. App.
reviewing the questionnaires of those seven prospective
jurors, we note that Petersen is correct that they all
indicated that they would give "more importance" to
the testimony of a law-enforcement officer than any other
witness. The record indicates that A.D. and W.H. served on
Petersen's jury. This Court has previously stated,
however, that, even when a juror responds that he or she
would give more importance to the testimony of a
law-enforcement officer, such a response does not indicate
that a juror has "an opinion about law enforcement
testimony so fixed that he [or she] could not fairly and
impartially return a verdict based on the evidence" that
would require that juror to be removed from the venire.
See Living v. State, 796 So.2d 1121, 1135
(Ala.Crim.App.2000). Additionally, Petersen did not explore
the alleged biases of A.D. and W.H. during voir dire. This
Court does not find plain error to exist as to the circuit
court's failure to sua sponte remove A.D. and W.H. for
cause on the basis asserted by Petersen.
the remaining five prospective jurors, Petersen used his
peremptory strikes to remove R.D., J. Bas., R.E., R.G., and
D.G., from the venire. The Alabama Supreme Court has
previously recognized that forcing a defendant to use his or
her peremptory strikes to remove multiple jurors might not be
harmless error. In Ex parte Colby, 41 So.3d 1 (Ala.
2009), the defendant argued that the trial court erred in
denying her challenges for cause as to several jurors,
forcing her to use 9 of her 17 peremptory strikes to remove
those jurors from the venire. 41 So.3d at 4. The Alabama
Supreme Court reversed the judgment after finding that, under
its precedent in General Motors v. Jernigan, 883
So.2d 646 (Ala. 2003), multiple errors by the trial court in
denying Colby's challenges for case were not harmless. 41
So.3d at 5. Specifically, the Alabama Supreme Court found
that the jury in that case included "'jurors who
would likely have been the subject of peremptory challenge[s]
had such challenges been available'" to Colby.
Id. For example, according to the Court, the record
indicated that the seated jury included "jurors who knew
witnesses for the State, jurors who expressed strong support
for the death penalty, and jurors who felt that it was
defense counsel's job to prove the defendant's
Colby made separate motions for the removal of three of those
jurors from the jury, the trial court denied each motion
separately. 41 So.3d at 7. The Alabama Supreme Court found
that each of those denials was error based on responses given
by those jurors during voir dire that clearly showed they
should have been removed from the venire. Id.
Although the State argued that those errors were harmless,
the Court disagreed and stated "'[i]n each instance
in which we have applied the harmless error rule, we have
been presented with only one erroneous ruling on a
challenge for cause.'" Id. (quoting
General Motors, 883 So.2d at 672). Therefore, the
Court held that the errors committed by the trial court were
present case, however, is distinguishable from
Colby. First, unlike the defendant in
Colby, Petersen did not move to remove any of the
jurors at issue. Second, none of the prospective jurors
struck by Petersen was a juror who clearly should have been
removed. Thus, we see no plain error in the circuit
court's failure to sua sponte remove the challenged
veniremembers. Petersen is due no relief on this claim.
argues that the circuit court erred by failing to remove
prospective jurors A.D. and D.H. from the venire and allowing
them to serve on his jury. (Petersen's brief, pp. 29-30.)
Petersen did not challenge either veniremember for cause;
thus, his claim is reviewed for plain error. See
Rule 45A, Ala. R. App. P.
voir dire, A.D. disclosed that the Houston County District
Attorney's office prosecuted three men in connection with
the murder of her brother. (R. 428.) She was not asked any
follow-up questions. D.H. disclosed that she had been the
victim in a sexual-harassment case when she was 15 years old
and that the prosecutors in Petersen's case handled her
case. (R. 835.) When asked if this would impact her ability
to serve as a juror, D.H. stated that this experience would
not prevent her from "giving both sides a fair
trial." (R. 835.)
Court has previously stated:
"'To justify a challenge of a juror for cause there
must be a statutory ground (Ala. Code Section 12-16-150
(1975)), or some matter which imports absolute bias or favor,
and leaves nothing to the discretion of the trial court.'
Nettles v. State, 435 So.2d 146, 149 (Ala. Crim.
App.), aff'd, 435 So.2d 151 (Ala. 1983). Section
12-16-150 sets out the grounds for removal of veniremembers
for cause in criminal cases .... In addition to the statutory
grounds, there are other common-law grounds for challenging
veniremembers for cause where those grounds are not
inconsistent with the statute. Smith v. State, 213
So.3d 108 (Ala.Crim.App.2000), aff'd in pertinent part,
rev'd in part, 213 So.3d 214 (Ala. 2003); Kinder v.
State, 515 So.2d 55, 60 (Ala.Crim.App.1986). Here, we
are dealing with the common-law ground for challenge of
suspicion of bias or partiality. See discussion of
the common-law grounds for challenge in Tomlin v.
State, 909 So.2d 213 (Ala.Crim.App.2002), remanded for
resentencing, 909 So.2d 283 (Ala. 2003). Ultimately, the test
to be applied is whether the veniremember can set aside his
or her opinions, prejudices, or biases, and try the case
fairly and impartially, according to the law and the
evidence. Smith v. State, supra. This
determination of a veniremember's absolute bias or favor
is based on the veniremember's answers and demeanor and
is within the discretion of the trial court; however, that
discretion is not unlimited. Rule 18.4(e), Ala. R. Crim. P.,
provides, in part: 'When a prospective juror is subject
to challenge for cause or it reasonably appears that the
prospective juror cannot or will not render a fair and
impartial verdict, the court, on its own initiative or on
motion of any party, shall excuse that juror from service in
the case.' Even proof that a veniremember has a bias or
fixed opinion is insufficient to support a challenge for
cause. A prospective juror should not be disqualified for
prejudice or bias if it appears from his or her answers and
demeanor that the influence of that prejudice or bias can be
eliminated and that, if chosen as a juror, the veniremember
would render a verdict according to the law and the evidence.
Mann v. State, 581 So.2d 22, 25 (Ala.Crim.App.1991);
Minshew v. State, 542 So.2d 307
McGowan v. State, 990 So.2d 931, 951
(Ala.Crim.App.2003). After reviewing the voir dire
proceedings in the present case, we conclude that the circuit
court did not err in failing to sua sponte remove these
jurors from the venire. Although we acknowledge that both
A.D. and D.H. had past relationships with the Houston County
District Attorney's office, nothing in the record before
us indicates that this prevented either of them from serving
as a fair and impartial juror. Thus, Petersen is not entitled
Petersen asserts that the circuit court erred in failing to
remove 10 veniremembers who, he says, indicated that they would
automatically impose the death penalty without considering
any mitigating circumstances or evidence. (Petersen's
brief, p. 31.) According to Petersen, as a result of their
responses, those veniremembers were not qualified to serve
and should have been removed for cause. Id. Petersen
did not move to remove those veniremembers for cause in the
court below; thus, we review this claim for plain error.
See Rule 45A, Ala. R. App. P.
record indicates that Petersen used his peremptory strikes to
remove those 10 prospective jurors from the venire. To the
extent that Petersen is arguing that he should not have been
forced to use his peremptory strikes to remove those jurors,
in light of our discussion of Ex parte Colby in
Section I.B. of this opinion, supra, no error
occurred in the present case. Thus, Petersen is due no relief
on this claim.
contends that the State used its peremptory strikes in a
racially discriminatory manner in violation of Batson v.
Kentucky, 476 U.S. 79');">476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986). (Petersen's brief, pp. 33-46.)
Petersen also contends that the State used its peremptory
strikes against women in violation of J.E.B. v.
Alabama, 511 U.S. 127 (1994), and that this Court should
remand the case for a hearing to determine whether the State
can offer gender-neutral reasons for those strikes.
(Petersen's brief, pp. 46-51.)
Court has previously stated:
"In evaluating a Batson or J.E.B.
claim, a three-step process must be followed. As explained by
the United States Supreme Court in Miller-El v.
Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931
"'First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the basis
of race [or gender]. [Batson v. Kentucky, ] 476 U.S.
[79, ] 96-97[, 106 S.Ct. 1712, 1723 (1986)]. Second, if that
showing has been made, the prosecution must offer a
race-neutral [or gender-neutral] basis for striking the juror
in question. Id., at 97-98. Third, in light of the
parties' submissions, the trial court must determine
whether the defendant has shown purposeful discrimination.
Id., at 98.'
"537 U.S. at 328-29.
"With respect to the first step of the process ...
'[t]he party alleging discriminatory use of a peremptory
strike bears the burden of establishing a prima facie case of
discrimination.' Ex parte Brooks, 695 So.2d 184,
190 (Ala. 1997)(citing Ex parte Branch, 526 So.2d
609, 622 (Ala. 1987)). 'A defendant makes out a prima
facie case of discriminatory jury selection by "the
totality of the relevant facts" surrounding a
prosecutor's conduct during the defendant's
trial.' Lewis v. State, 24 So.3d 480, 489
(Ala.Crim.App.2006)(quoting Batson, 476 U.S. at 94,
aff'd, 24 So.3d 540 (Ala. 2009). 'In determining
whether there is a prima facie case, the court is to consider
"all relevant circumstances" which could lead to an
inference of discrimination.' Ex parte Branch,
526 So.2d at 622 (citing Batson, 476 U.S. at 93,
citing in turn Washington v. Davis, 426 U.S. 229, 96
S.Ct. 2040, 48 L.Ed.2d 597 (1976)). In Ex parte
Branch, the Alabama Supreme Court specifically set forth
a number of 'relevant circumstances' to consider in
determining whether a prima facie case of race discrimination
has been established:
"'The following are illustrative of the types of
evidence that can be used to raise the inference of
"'1. Evidence that the "jurors in question
share[d] only this one characteristic--their membership in
the group--and that in all other respects they [were] as
heterogeneous as the community as a whole." [People
v.] Wheeler, 22 Cal.3d  at 280, 583 P.2d  at
764, 148 Cal.Rptr.  at 905 [(1978)]. For instance,
"it may be significant that the persons challenged,
although all black, include both men and women and are a
variety of ages, occupations, and social or economic
conditions," Wheeler, 22 Cal.3d at 280, 583
P.2d at 764, 148 Cal.Rptr. At 905, n.27, indicating that race
was the deciding factor.
"'2. A pattern of strikes against black [or female]
jurors on the particular venire; e.g., 4 of 6 peremptory
challenges were used to strike black jurors. Batson,
476 U.S. at 97, 106 S.Ct. At 1723.
"'3. The past conduct of the state's attorney in
using peremptory challenges to strike all blacks [or females]
from the jury venire. Swain [v. Alabama, 380 U.S.
202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)].
"'4. The type and manner of the state's
attorney's questions and statements during voir dire,
including nothing more than desultory voir dire.
Batson, 476 U.S. at 97, 106 S.Ct. at 1723;
Wheeler, 22 Cal.3d at 281, 583 P.2d at 764, 148
Cal.Rptr. at 905.
"'5. The type and manner of questions directed to
the challenged juror, including a lack of questions, or a
lack of meaningful questions. Slappy v. State, 503
So.2d 350, 355 (Fla. Dist. Ct. App. 1987); People v.
Turner, 42 Cal.3d 711, 726 P.2d 102, 230 Cal.Rptr. 656
(1986); People v. Wheeler, 22 Cal.3d 258, 583 P.2d
748, 764, 148 Cal.Rptr. 890 (1978).
"'6. Disparate treatment of members of the jury
venire with the same characteristics, or who answer a
question in the same or similar manner; e.g., in
Slappy, a black elementary school teacher was struck
as being potentially too liberal because of his job, but a
white elementary school teacher was not challenged.
Slappy, 503 So.2d at 355.
"'7. Disparate examination of members of the venire;
e.g., in Slappy, a question designed to provoke a
certain response that is likely to disqualify a juror was
asked to black jurors, but not to white jurors.
Slappy, 503 So.2d at 355.
"'8. Circumstantial evidence of intent may be proven
by disparate impact where all or most of the challenges were
used to strike blacks [or females] from the jury.
Batson, 476 U.S. at 93, 106 S.Ct. At 1721;
Washington v. Davis, 426 U.S.  at 242, 96 S.Ct.
 at 2049 [(1976)].
"'9. The state used peremptory challenges to dismiss
all or most black [or female] jurors. See Slappy,
503 So.2d at 354, Turner, supra.'
"Id. at 622-23." White v. State,
179 So.3d 170, 198-99 (Ala.Crim.App.2013).
this Court has previously recognized:
"'While disparate treatment is strong evidence of
discriminatory intent, it is not necessarily dispositive of
discriminatory treatment. Lynch [v. State], 877
So.2d  at 1274 [(Miss. 2004)] (citing Berry v.
State, 802 So.2d 1033, 1039 (Miss. 2001)); see also
Chamberlin v. State, 55 So.3d 1046, 1050-51 (Miss.
2011). "Where multiple reasons lead to a peremptory
strike, the fact that other jurors may have some of the
individual characteristics of the challenged juror does not
demonstrate that the reasons assigned are pretextual."
Lynch, 877 So.2d at 1274 (quoting Berry [v.
State], 802 So.2d  at 1040 [(Miss. 2001)]).
Hughes v. State
90 So.3d 613
"'"As recently noted by the Court of Criminal
Appeals, 'disparate treatment' cannot automatically
be imputed in every situation where one of the State's
bases for striking a venireperson would technically apply to
another venireperson whom the State found acceptable.
Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App.
1992). The State's use of its peremptory challenges is
not subject to rigid quantification. Id. Potential
jurors may possess the s a m e o b j ectionable
characteristics, yet in varying degrees. Id. The
fact that jurors remaining on the panel possess one of more
of the same characteristics as a juror that was stricken,
does not establish disparate treatment."
"'Barnes v. State, 855 S.W.2d 173, 174
(Tex. App. 1993).
"'"[W]e must also look to the entire record to
determine if, despite a similarity, there are any significant
differences between the characteristics and responses of the
veniremembers that would, under the facts of this case,
justify the prosecutor treating them differently as potential
members of the jury. See Miller-El [v. Dretke], 545
U.S.  at 247, 125 S.Ct.  at 2329 [162 L.Ed.2d 196
"'Leadon v. State, 332 S.W.3d 600, 612
(Tex. App. 2010).
"'"Potential jurors may possess the same
objectionable characteristics, but in varying degrees.
Additionally, prospective jurors may share a negative
feature, but that feature may be outweighed by
characteristics that are favorable from the State's
perspective. Such distinctions may properly cause the State
to challenge one potential juror and not another."
"'Johnson v. State, 959 S.W.2d 284, 292
(Tex. App. 1997). "This Court has recognized that for
disparate treatment to exist, the persons being compared must
be 'otherwise similarly situated.'" Sharp v.
State, 151 So.3d 308, 342 (Ala.Crim.App.2013) (on
"'"The prosecutor's failure to strike
similarly situated jurors is not pretextual ... 'where
there are relevant differences between the struck jurors and
the comparator jurors.' United States v.
Novaton, 271 F.3d 968, 1004 (11th Cir. 2001). The
prosecutor's explanation 'does not demand an
explanation that is persuasive, or even plausible; so long as
the reason is not inherently discriminatory, it
suffices.' Rice v. Collins, 546 U.S. 333, 338,
126 S.Ct. 969, 973-74, 163 L.Ed.2d 824 (2006) (quotation
marks and citation omitted)."
"'Parker v. Allen, 565 F.3d 1258, 1271
(11th Cir. 2009).'"
"Wiggins v. State, 193 So.3d 765, 790
Luong v. State, 199 So.3d at 191-92. With these
principles in mind, we will address each of Petersen's
claims in turn.
Petersen argues that the State used its peremptory strikes in
a racially discriminatory manner in violation of Batson
v. Kentucky, 476 U.S. 79');">476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986). (Petersen's brief, pp. 33-46.) Specifically,
Petersen claims that the State's reasons for striking
seven prospective African-American jurors were pretextual.
several veniremembers were disqualified, excused, deferred,
or stricken for cause, 47 qualified veniremembers
remained--38 were Caucasian and 9 were African-American. The
9 African-American veniremembers constituted 19% of the
State used 7 of its 18 peremptory strikes to remove
African-American veniremembers from the jury panel. Petersen
used 1 of his 17 peremptory strikes to remove an
African-American veniremember from the panel. As best we can
discern, Petersen's jury consisted of 11 Caucasians and 1
African-American. Before the jury was struck, the State made
the following statement to the court:
"[PROSECUTOR:] Can I just ask a question for the record?
I'm telling the Court right now, if they put 'no'
on the death penalty on their questionnaire, this is my
position. It doesn't matter what they say. I'm
striking them. If they come in here--
"THE COURT: So, you don't want to make a challenge
for cause on them?
"[PROSECUTOR:] Well, I would. I'm just making, for
the record, protection. If they sit in the box--and I'm
not talking about these, but the ones I want in--and they sit
there and don't say, 'I can do the death
penalty,' I'm not going to ask the Court, but I'm
going to say, 'You put on your questionnaire you
can't do it. So, when are you telling the truth?'
I'm not going to put them--but I'm going to strike
them. And I don't care what color, what race, man, woman.
"And if there's a Batson challenge, then
the question I'm asking the Court, you're going to
bring them down, do like you said. So, if they raise that,
you're going to say there's enough for them to strike
race neutral. Would you agree? I just want to be sure.
"THE COURT: I don't like to prejudge issues.
"[PROSECUTOR:] I'm not asking you to prejudge.
"THE COURT: I tend to think that anything anybody wrote
on a questionnaire would support a peremptory challenge by
"[PROSECUTOR:] That's good. Thank you."
prior to the jury being sworn, Petersen's counsel made a
motion indicating that a Batson violation had
occurred. (R. 967.) After hearing the defense's reasons
in support of its motion, the circuit court determined that
there was a prima facie case of discrimination and asked the
State to give its reasons for striking certain
African-American jurors from the venire. (R.
following exchange then occurred:
"[PROSECUTOR:] Yes, Your Honor. If you would remember in
reference to juror number 28, Ms. [K. Ca.], she came up and
spoke on two main points. First, that she's on bond
pending action of the grand jury in Henry County, Alabama,
our corresponding county within the 20th Judicial Circuit,
our jurisdiction, for unlawful possession of a controlled
substance. She also gave a response that she suffers from
bipolar, which is one mental illness that we expect will be
raised by the defense in this case.
"THE COURT: Anything else on 28?
"[PROSECUTOR:] No. And then, going to--the next State
strike was 107. 107, [Ms. T.H.], which is marked out and her
new last name is [M.], number 107. She also gave a response
about mental illness.
"[PROSECUTOR:] That she's also bipolar ... or knew
somebody who was bipolar. So, corresponding with juror number
28. His mental illness is at issue in this case.
Specifically, the defense has affirmatively pled not guilty
and not guilty by mental disease or defect. Given the
closeness of her relationship to bipolar disorder, which,
based off the information obtained through voir dire, she
stated that her ... sister in law's husband suffers from
"THE COURT: Anything else?
"[PROSECUTOR:] Also, on question number 53 in the juror
questionnaire, she stated that--she further referenced the
"THE COURT: Next juror.
"[PROSECUTOR:] The next is number 47, [K. Cr.] She was
one of the four jurors brought up and addressed by the Court
about her position on the death penalty. On the
questionnaire, she stated that life without parole was a
severe enough penalty. And given the consideration that the
death--if the jury comes back guilty, that death will be on
the table for that, her response indicated that she's pro
life without parole, because imprisonment and loss of freedom
forever is punishment enough. That's on question 52.
Also, she stated that her cousin was violent when not taking
medicines and that her family has been untreated--has been
treated unfairly by the cops.
"THE COURT: Is that from the questionnaire?
"[PROSECUTOR:] Yes, sir.
"[PROSECUTOR:] [She wrote:] 'The way the officers
chose to engage with the citizens in minor issues. Example,
an officer made my mother cry by talking to her harshly
during a minor traffic stop. It was completely
"THE COURT: Next juror.
"[PROSECUTOR:] The next juror is number 4, Your Honor,
[J. Bar.] He initially, on his questionnaire, or raised his
hand on voir dire, stated that he was not for the death
penalty. And he was in the group that we asked the court to
individually bring up of the four jurors that sat in the box.
So, based off of his initial responses, that led us to
request that of the Court.
"And on question number 42 of the Court, in reference to
how he feels about the death penalty, he said, 'Well, I
feel I didn't give a life, so I don't have the
authority to judge for no one--for one to be taken.'
"Also, on question number 52, he stated that there is no
punishment by taking a life.
"THE COURT: Okay. Next strike that's at issue.
"[PROSECUTOR:] The next one is number 49, which is Ms.
[M.C.]. And if the Court will remember, that on individual
voir dire, she came up. And she's actually been at a
different nightclub on a previous occasion, many years ago,
where there was a shooting. Two individuals were shot. She
didn't see who the shooter was. But it was very
traumatizing to ... her. She got very upset at your bench
describing the details of that.
"She received psychiatric treatment for a number of
years thereafter and was on medication. She stated it would
be on her mind if she sat through the trial and it would
cause her to be emotional.
"She also said, in reference to number four, if answered
'yes,' to explain your relationship to the person or
circumstances that led to seeking help, whether the help was
successful, 'Myself. Help was successful until
today.' Remember she related to the Court, because of the
pressure of this case--
"THE COURT: Right.
"[PROSECUTOR:] We need someone that can keep their mind
on the case.
"THE COURT: I will note for the record, as well, on my
notes from--I guess it was Monday, maybe, when we initially
talked with her, I made the notations in my own handwriting
on my personal notes, 'Sobbing, crying, Wicksburg
shooting, hyperventilating as she spoke with us.' All
right. Next strike at issue.
"[PROSECUTOR:] The next one was the State's eleventh
strike, which was number 37, J.C.
"THE COURT: She was in the group, also, that came up.
"[PROSECUTOR:] She was. Based off her initial response
regarding the death penalty on her questionnaire or with the
general voir dire.
"Question number 53, she answered--this is what she
says. She disagreed when it comes to whether a person should
be sentenced to death for intentionally committing a capital
murder, their background and circumstances of the crime do
not matter. We understand the jury has a right to consider
those things. But her response is, 'Some people are
mentally ill. Mental illness is real and debilitating. Mental
illness can play a role in some instances. So, I believe
mental illnesses should be considered in'--I can't
tell you what that says.
"She's also employed in the medical field. And we
also struck [people] in the medical field ... [white people,
"THE COURT: Okay. Last one, number 5.
"[PROSECUTOR:] Number 5. ... Number 5 has served on a
previous jury and rendered a verdict of not guilty. He's
a black male. We also struck, in removing persons who had
rendered verdicts of not guilty before, number 31, [R.C.],
who was a white male.
"If I could point out, Judge, on number 5, that on 25,
his answers, previous experiences [as a juror], [he said]
yes, and the case was a Houston County assault, not guilty.
Clearly, these kind of cases are shootings, once again. And
we struck another white male for the same reason."
(R. 970-78, 980-81.) After hearing the above from the State,
the circuit court determined that the State's reasons for
striking the above veniremembers were sufficiently
race-neutral. (R. 981.)
appeal, Petersen argues that the State's reasons for
striking seven African-American veniremembers were pretextual
and resulted in only one African-American veniremember
serving on his final jury. (Petersen's brief, p. 37-46.)
Specifically, he argues (1) that the Houston County District
Attorney's office has a history of removing
African-American veniremembers from death-penalty cases and
that the same is true in this case, thereby establishing a
prima facie case of racial discrimination; (2) that similarly
situated African-American and Caucasian veniremembers were
treated differently; and (3) that the State's request to
remove J. Bar., an African-American, was based on racial
discrimination. Id. We address each in turn.
Petersen contends that the statistical evidence concerning
removal by the Houston County District Attorney's office
of African-American veniremembers in death-penalty cases
shows a history of discrimination and supports such a finding
in the present case. As noted above, African-American
veniremembers constituted 19% of the venire. After the State
and Petersen exercised their peremptory strikes, 1
African-American juror remained, constituting 8% of the final
jury. Finally, the State used 7 of its 18 peremptory strikes
to remove 7 of the 9 African-Americans remaining on the
venire after excusals and challenges for cause. We note that
numbers and statistics do not, alone, establish a prima facie
case of racial discrimination. See Johnson v. State,
823 So.2d 1 (Ala.Crim.App.2001)(holding State's use of
six peremptory strikes to remove six of nine African-American
veniremembers insufficient to establish a prima facie case of
racial discrimination); Scheuing v. State, 161 So.2d
245, 260 (Ala.Crim.App.2003)("Here, the State's use
of peremptory strikes to remove 8 of 12 African-American
veniremembers does not raise an inference of racial
discrimination."). Even so, the circuit court acted
within its discretion in determining that a prima facie case
of racial discrimination existed, thereby shifting the burden
to the State to offer race-neutral reasons for the strikes.
next argues that similarly situated African-American and
Caucasian veniremembers were treated differently by the
State. Specifically, he argues that the State struck
prospective jurors M.B., K. Cr., M.C., J.C., T.M., and K.
Ca., all of whom were African-American, but did not strike
Caucasian prospective jurors who he alleges were similarly
situated in a variety of ways. As demonstrated by the
excerpts of the State's reasons quoted above,
however--and as the circuit court found--those veniremembers
were struck for race-neutral reasons. Additionally, review of
the juror questionnaires and the transcript of voir dire
examination does not demonstrate that the prosecutor engaged
in disparate treatment when he struck those African-American
example, the State struck M.B., an African-American male,
because he had served on a previous jury that rendered a
verdict of not guilty. (R. 980.) The State also struck R.C.,
a Caucasian male, for the same reason. (R. 980.) This Court
has previously stated that "a black veniremember's
prior service on a jury in which a not guilty verdict was
rendered is a facially race-neutral reason for striking the
veniremember." Lyde v. State, 605 So.2d 1255,
Petersen argues that the State's request for J. Bar., an
African-American, to be removed was made for racially
discriminatory purposes. The record in this case indicates
that J. Bar. was among a group of four veniremembers who were
brought back into the courtroom for further questioning based
on their opposition to the death penalty. (R. 934-37.) The
circuit court asked whether they could follow the law as to
sentencing, and each of them, including J. Bar., responded in
the affirmative. (R. 936-37.)
contends that since the State failed to ask J. Bar. any
additional questions on the matter, it must have struck him
for racially discriminatory purposes. We note, however, that,
in addressing its reasons for striking J. Bar., the State
noted his response on his questionnaire not only that he did
not support the death penalty, but also that he was not sure
there was a punishment for taking a life. (R. 974.) Under
these circumstances, Petersen has failed to demonstrate that
the State acted with racially discriminatory purposes when it
moved to remove J. Bar. See Mashburn v. State, 7
So.3d 453, 461-62 (Ala.Crim.App.2007)(holding that striking
African-American veniremember for his opposition to the death
penalty and hesitation to consider it a proper punishment at
all was not pretextual).
on our review of the voir dire examination and the juror
questionnaires, we find no evidence that the prosecutor
engaged in purposeful discrimination toward African-American
veniremembers. Therefore, Petersen is not entitled to relief
on this Batson claim.
next argues that the State used its peremptory strikes
against women in violation of J.E.B. v. Alabama, 511
U.S. 127 (1994), and that this Court should remand the case
for a hearing to determine whether the State can offer
gender-neutral reasons for those strikes. (Petersen's
brief, pp. 46-51.) Because Petersen did not raise this claim
at trial, we question whether it is properly before this
we note that a plurality of the Alabama Supreme Court has
recently stated that Alabama appellate courts should no
longer include such claims in plain-error review under
circumstances like those present in Petersen's case.
See Ex parte Phillips, [Ms. 1160403, October 19,
2018] ____ So.3d ____, ____ (Ala. 2018) (Stuart, C.J.,
concurring specially, joined by Main and Wise, JJ.)
("Simply, (1) plain error should not be available for a
Batson [or J.E.B.] issue raised for the
first time on appeal because the failure to timely make a
Batson inquiry is not an error of the trial court;
(2) the defendant should be required to timely request a
Batson hearing to determine whether there was
purposeful discrimination because, under the plain-error
rule, the circumstances giving rise to purposeful
discrimination must be so obvious that failure to notice them
seriously affects the integrity of the judicial proceeding
...."); see also id. at___ (Sellers, J.,
concurring specially) ("I also concur with Justice
Stuart's discussion of the Batson v. Kentucky,
476 U.S. 79');">476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), issue,
which aligns our jurisprudence with what I believe is
persuasive jurisprudence from federal courts. A
Batson claim is a unique type of constitutional
claim that, for the reasons set out in Justice Stuart's
opinion, should be deemed waived even in capital cases if not
timely made. Batson claims are forfeited if there is
no objection to the composition of the jury before the
commencement of a trial."). For the reasons stated in
that opinion, plain-error review should likewise no longer
apply to J.E.B. claims in circumstances like
if, however, the J.E.B. issue raised by Petersen was
subject to plain-error review, Petersen is not entitled to
relief. Here, as noted in Part III.A., supra, after
a number of veniremembers were disqualified, excused, or
stricken for cause, 47 veniremembers remained. Of those 47
veniremembers, 22 were female and 25 were male. Therefore,
the 22 female veniremembers constituted 47% of the venire.
The State used 14 of its 18 peremptory strikes to remove
female veniremembers. Petersen used 3 of his 17 peremptory
strikes to remove female veniremembers. Females constituted
42% of Petersen's final jury. At the conclusion of the
jury-selection process, neither Petersen's defense
counsel nor the circuit court indicated that a
J.E.B. violation had occurred.
appeal, Petersen argues that the State's use of 14 of its
18 peremptory strikes to remove women from the venire along
with the prosecutor's comment that he "wanted to
keep men on the jury" and that he "[d]idn't
want a jury of all women" supports an inference of
discrimination. (Petersen's brief, p. 48.) He further
argues that the female veniremembers the State struck were a
variety of ages and gave various answers during voir dire
and, thus, that the only common characteristic among them was
their gender. (Petersen's brief, p. 49.) Finally,
Petersen argues that similarly situated male and female
veniremembers were treated differently. (Petersen's
brief, pp. 50-51.) We address each argument in turn.
we disagree with Petersen's contention that the
State's use of 14 of its 18 peremptory strikes to remove
women from the venire supports an inference of
discrimination. As noted above, the female veniremembers
constituted 47% of the venire, and, after the State and
Petersen exercised their peremptory strikes, women
constituted 42% of Petersen's final jury. Although the
State used 14 of its 18 peremptory strikes to remove 14 of
the 22 women remaining on the venire after excuses and
challenges for cause, this fact does not establish a prima
facie case of gender discrimination, and we do not think a
prima facie case has been established in this case. See
Largin v. State, 233 So.3d 374, 403 (Ala.Crim.App.2015)
(holding that State's use of 22 of 29 strikes against
female veniremembers did not raise an inference of
discrimination). Even so, we will nevertheless consider
Petersen's remaining arguments.
Petersen argues that, because the female veniremembers the
State struck were a variety of ages and gave various answers
during voir dire, the only common characteristic among them
was their gender. (Petersen's brief, p. 49.) This Court
recognized in McCray v. State, 88 So.3d 1, 20
"there is almost always going to be some variance among
prospective jurors who are struck; therefore, this alone does
not establish heterogeneity of the struck veniremembers so as
to support an inference of discrimination. The question, as
noted in both Ex parte Branch[, 526 So.2d 609 (Ala.
1997)] and Ex parte Trawick[, 698 So.2d 162 (Ala.
1997)], is whether the struck jurors shared only the
characteristic at issue, in this case, gender."
of the juror questionnaires and the transcript of voir dire
examination reflects that many of the women struck shared
characteristics other than gender.
example, Petersen identifies K. Cr. and E.E. as being
improperly struck even though they both answered that they
have purchased weapons. (Petersen's brief, p. 49.) The
record reveals that K. Cr. indicated that she was opposed to
the death penalty. (R. 972-73.) This Court has noted that, at
the very least, opposition to the death penalty is a valid
reason for the State to strike veniremembers. See
Scheuing v. State, 161 So.3d 245, 286
(Ala.Crim.App.2013). Additionally, the record shows that E.E.
revealed that her son had been in prison but she indicated
that she could be fair and impartial. (R. 913.) We note,
however, that, in her juror questionnaire, E.E. indicated
that "[a]ttorneys and the [district attorney] manipulate
the system." Because E.E. demonstrated a potential bias
toward the State in her juror questionnaire, the State's
decision to remove her from the jury does not demonstrate
we disagree with Petersen's argument that similarly
situated male and female veniremembers were treated
differently to an extent that indicates that discrimination
occurred. Petersen argues that the State struck certain
female prospective jurors but did not strike male jury
members who provided similar answers to certain questions
either during voir dire or on the jury questionnaires. Based
on our review of the voir dire examination and the juror
questionnaires, however, we find no evidence that the
prosecutor engaged in purposeful discrimination toward female
example, the record indicates that the State struck female
veniremember K.E. who, like male jury member B.E., had never
purchased a firearm. (R. 484.) During voir dire, however,
K.E. indicated that she did not believe that someone's
background should be considered mitigating and she indicated
that she would not accept mitigating factors of someone's
social background. (R. 711-12.) This Court has previously
recognized that a juror may not arbitrarily ignore any
applicable mitigating or aggravating circumstance. See
Whisenhant v. State, 482 So.2d 1225 (Ala.Crim.App.1982),
affirmed in part and remanded, 482 So.2d 1241 (Ala. 1985).
Based on K.E.'s response, it appears that her removal
from the venire was in Petersen's best interest because
she may not have followed the law. See generally Tomlin
v. State, 909 So.2d 213 (Ala.Crim.App.2002)(holding that
the challenged jurors were stricken for nondiscriminatory
reasons, including a stated inability to follow the law),
rev'd on other grounds, 909 So.2d 283 (Ala.
2003). Thus, we find no plain error, and Petersen is not
entitled to relief.
contends that the circuit court erroneously limited voir dire
by refusing to let his defense counsel further question nine
veniremembers about their views on the death penalty after,
he says, they indicated that they would automatically impose
the death penalty without considering mitigating evidence.
(Petersen's brief, pp. 85-87.) Although he acknowledges
that the court questioned those nine veniremembers
individually, Petersen argues that he should have been
permitted to question those veniremembers about their
contradictory responses on the issue. (Petersen's brief,
pp. 85-86.) Petersen did not raise this issue in the circuit
court; thus, it will be reviewed for plain error.
See Rule 45A, Ala. R. App. P.
record on appeal reveals that, after questioning the full
venire during voir dire, Petersen's defense counsel
identified nine veniremembers for further questioning who, he
says, indicated on their juror questionnaires that they would
automatically impose the death penalty without considering
any mitigating evidence. Those veniremembers were J. Bas., B.
El., T.B., C.D., G.D., K.E., E.G., C.G., and J.G. (R. 896,
898-908.) The circuit court then brought in those
nine veniremembers for further questioning. (R. 915.) The
following exchange occurred:
"THE COURT: Let the record reflect that we've called
down in a group--I'll call the names out one more time.
Let me know if I don't call your name. [J. Bas.], [T.B.],
[C.D.], [G.D.], [K.E.], [B. El.], [E.G.], [C.G.], and [J.G.].
Is that everybody?
"THE COURT: This is, again, the death penalty question.
I know that a lot of question[s] have been asked and the
questionnaires, as well. And, certainly, all of us, as
Americans, are entitled to our beliefs--we can call them
political, religious, whatever--over any multitude of issues.
And you don't surrender those beliefs because you serve
on a jury.
"But always when you serve on a jury or if you serve as
a judge, your first obligation has to be able to, when
necessary, set aside political, religious or other such
beliefs and go by what the law says, whether you may
otherwise agree or disagree with it. Okay?
"So, in regard to the death penalty, is there any of you
that cannot follow the law of Alabama regarding the death
penalty, whatever that law may be? I won't spend 30
minutes going over it with you. But, is there anyone who
could not follow the law of Alabama on the death penalty?
"THE COURT: Yes? No? I guess what I'll do, I'll
point to each of you. And tell me, yes, you can follow the
evidence and the law, or, no, you cannot. And I'll start
down there at the end.
the prospective jurors were polled and gave affirmative
"THE COURT: And if you believe, after hearing the case,
that the evidence and the law supports a verdict of life
without parole, can all of you impose a sentence of life
"PROSPECTIVE JURORS: Yes.
"THE COURT: Yes? Tell me 'no' if you cannot,
"THE COURT: Anything else from the defense for these
"[DEFENSE COUNSEL:] Other than just--aside from asking
them about the questionnaire, why did you put on here that
you're not open to these things.
"THE COURT: Well, that would be an issue for a
peremptory strike, in my opinion. And they've answered it
on their questionnaire."
(R. 915-18.) Thereafter, Petersen did not move to question
the veniremembers individually.
Court has previously recognized that
"Rule 18.4(c), Ala. R. Crim. P., provides that
'[t]he court shall permit the parties or their attorneys
to conduct a reasonable examination of prospective
jurors.' In Morgan [v. Illinois, 504 U.S. 719,
112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)], ... the United
States Supreme Court held that a capital defendant is
entitled to question prospective jurors about their views on
the death penalty and to strike for cause those prospective
jurors who would automatically impose the death penalty if
the defendant is found guilty of the capital charge. However,
'[t]he right to question veniremembers regarding their
qualifications to serve on the jury or their interest or bias
is limited by propriety and pertinence and is to be exercised
within the sound discretion of the trial court, and the
questions must be reasonable under the circumstances of the
case.' Smith v. State, 698 So.2d 189, 198
(Ala.Crim.App.1996), aff'd, 698 So.2d 219 (Ala. 1997).
See also Rule 18.4(d), Ala. R. Crim. P. ('Voir
dire examination of prospective jurors shall be limited to
inquiries directed to basis for challenge for cause or for
obtaining information enabling the parties to knowledgeably
exercise their strikes.'). 'In selecting a jury for a
particular case, "the nature, variety, and extent of the
questions that should be asked prospective jurors" must
be left largely within the sound discretion of the trial
court.' Bracewell v. State, 447 So.2d 815, 821
(Ala.Crim.App.1983), aff'd, 447 So.2d 827 (Ala. 1984)
(quoting Peoples v. State, 375 So.2d 561, 562
(Ala.Crim.App.1979)). 'A trial court is vested with great
discretion in determining how voir dire examination will be
conducted, and the court's decision as to the extent of
voir dire examination required will not be overturned except
for an abuse of that discretion.' Travis v.
State, 776 So.2d 819, 835 (Ala.Crim.App.1997),
aff'd, 776 So.2d 874 (Ala. 2000)."
Floyd v. State, [Ms. CR-13-0623, July 7, 2017) ____
So.3d ____, ____ (Ala.Crim.App.2017). Here, defense counsel
was given an opportunity through a written questionnaire to
ask the nine identified veniremembers about their views on
the death penalty. Based on their responses to a question on
the juror questionnaire, Petersen's defense counsel told
the court that they believed that those nine veniremembers
should be questioned further about their views on the death
penalty and mitigating evidence. The court agreed and,
without hesitation, called those prospective jurors back and
asked them additional questions based on those concerns.
Under those circumstances, contrary to Petersen's
argument, the court did not "limit voir dire" in
any meaningful way. The fact that the court did not seek to
allow Petersen's defense counsel to ask those
veniremembers even more questions does not constitute an
abuse of discretion under Floyd, supra.
Thus, Petersen is not entitled to relief on this claim.
argues that the circuit court erred by removing veniremember
B.C. from the venire. (Petersen's brief, pp. 87-88.)
According to Petersen, although B.C. initially indicated
during voir dire that she might not be able to vote in favor
of sentencing Petersen to death, because she later indicated
that she would be able to do so in response to further
questioning from the State and defense counsel, the court
should not have removed her. Id.
following is well settled law:
"'"A trial judge's finding on whether or
not a particular juror is biased 'is based upon
determination of demeanor and credibility that are peculiarly
within a trial judge's province.' [Wainwright v.]
Witt, 469 U.S.  429, 105 S.Ct.  855 [(1985)].
That finding must be accorded proper deference on appeal.
Id. 'A trial court's rulings on challenges
for cause based on bias [are] entitled to great weight and
will not be disturbed on appeal unless clearly shown to be an
abuse of discretion.' Nobis v. State, 401 So.2d
191, 198 (Ala. Cr. App.), cert. denied, Ex parte
Nobis, 401 So.2d 204 (Ala. 1981)."'
"Boyle v. State, 154 So.3d 171, 196
(Ala.Crim.App.2013) (quoting Martin v. State, 548
So.2d 488, 490-91 (Ala.Crim.App.1988)).
"'"'In a capital case, a prospective juror
may not be excluded for cause unless the juror's views
would prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and
oath.' Drew v. Collins, 964 F.2d 411, 416 (5th
Cir. 1992), cert. denied, 509 U.S. 925, 113 S.Ct. 3044, 125
L.Ed.2d 730 (1993) (quotations omitted). '[T]his standard
likewise does not require that a juror's bias be proved
with unmistakable clarity. This is because determinations of
juror bias cannot be reduced to question-and-answer sessions
which obtain results in the manner of a catechism.'
[Wainwright v.] Witt, 469 U.S. [412, ] 425-26, 105
S.Ct. [844, ] 852-53 [(1985)]."'
"Boyle, 154 So.3d at 196-97 (quoting Parr
v. Thaler, 481 Fed.Appx. 872, 876 (5th Cir.
Townes v. State, 253 So.3d 447, 471
record on appeal indicates that, during voir dire,
veniremember B.C. initially indicated that she may have
difficulty imposing the death penalty because she did not
believe in the death penalty. (R. 255.) The following
exchange then occurred:
"THE COURT: Okay. I want to ask you about that. Are
there any other issues that you need to discuss with me or
just that one?
"[B.C.:] No. Just that.
"THE COURT: Okay. I need to ask you this way. The law of
Alabama permits the death penalty in certain circumstances.
Okay. So, the first issue, if you sit on the jury, will be
whether he's guilty or not guilty of the crime. It has
nothing to do with punishment--
"THE COURT: --because he's presumed innocent of the
charge. So, we don't even think about punishment unless
or until a jury tells us that he's guilty. So, the
lawyers, myself, no one will talk about the death penalty
when they present their cases to you. If he's found not
guilty, then he's free to go. The
jury is discharged. The case is over. We never get to
"THE COURT: If he is found guilty of a capital offense,
a jury nor a judge is free to then simply impose the death
penalty. Our law has laws and procedures that would then have
to be followed to determine whether the death penalty is
appropriate or life without parole. There will only be two
options if he's found guilty, death penalty or life
"And probably everybody has an opinion about the death
penalty. It's just one of those issues, like a few
others, that everyone has some opinion, one way or the other
about. And it's okay to have those opinions. But the
issue becomes, in the case, is whether you could follow the
law or is your opinion of such a nature that you could not
follow the law. Okay?
"So, if you were to sit on the jury, the jury finds him
guilty beyond a reasonable doubt, we go through the
sentencing part of the case, you hear the evidence, I give
you the law, and you do believe, based on the evidence and
the law, that the death penalty is appropriate, would you be
able to set aside your personal belief and consider and
impose the death penalty or would you--
"[B.C.:] To be honest with you, I don't know.
Because I know that, you know, a person can be guilty and,
you know, he has taken another life, but, you know, I just
don't believe that he could--you know, you could
take--that we have--even though it's law, that we could
choose to terminate that person's life. You know. I mean,
he should get the punishment that he deserves.
"But, in my own personal opinion and my belief, you
know, I don't think that we get to choose to terminate
someone's life, even if he had taken someone else's
"THE COURT: Right. And I don't want to put words in
"THE COURT: So, you tell me. Do I understand that
you're telling me that even if you think, under the law
and the evidence, the death penalty would be appropriate,
that you still would not be able to vote for the death
"[B.C.:] I don't--I wouldn't--like, I would be
undecided to choose that. I don't know.
"THE COURT: But, if you do think the evidence and the
law warrants the death penalty, would you be able to vote for
"[B.C.:] Of course. Yeah.
"THE COURT: Any questions, [prosecutor]?
"[PROSECUTOR:] Yes. Ms. [B.C.], I appreciate your
honesty. I just want to discuss two things. I heard what you
said, even though if I found him guilty--and I'll ask it
this way--I could consider the death penalty. But, is it your
opinion that the State, the jury, as no right to terminate
his life? I can vote life without parole, but I can't
"[PROSECUTOR:] Okay. And I respect that.
"[PROSECUTOR:] And my question--I need to ask you this
way. Your opinion and your belief is what I heard you were
talking about. No matter what, your opinion and your belief
is you won't vote death no matter what? You'll
automatically do life without parole under any circumstance?
Is that fair?
"[PROSECUTOR:] Okay. Well, like the judge says, we have
to prove he's guilty at the guilt phase. And then, at the
penalty phase, the burden is still on the State. So, my
question, are you telling the judge I can listen to the
evidence, and if the State convinces me, then I can vote to
put him to death, or, no, my belief--I don't believe we
have a right to terminate a man's life or woman? I can
send him to prison for life without parole to die there, but
I don't believe I can ever vote to terminate his life, no
"[B.C.:] I wouldn't be able to.
"[PROSECUTOR:] 100 percent, you could not do that?
"[B.C.:] 100 percent, I wouldn't be able to.
"[PROSECUTOR:] Thank you for your honesty.
"THE COURT: [Defense counsel]?
"[DEFENSE COUNSEL:] Yes. Now, you seem to have given
this issue some thought--
"[DEFENSE COUNSEL:] --obviously.
"[B.C.:] That's why I stayed. I was going to just
walk out, but then I ...