Opinion
1 Div. 21.
May 11, 1990.
Appeal from the Circuit Court, Mobile County; Robert Kendall, Judge.
Peter J. Palughi, Mobile, for appellant.
Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson, Asst. Atty. Gen., for appellee.
ON REMAND FROM THE ALABAMA SUPREME COURT
This cause was remanded by our supreme court, 560 So.2d 1153, for consideration in light of Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).
The judgment of the circuit court adjudging appellant guilty of robbery in the first degree and sentencing him as a habitual offender to life imprisonment without the possibility of parole is affirmed because of the following reasons. First, appellant's claim that the state was guilty of racial discrimination in the jury selection process, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), is procedurally barred from review on the merits because the issue was not raised by appellant in a timely manner in the trial court. Second, appellant's claim that the state failed to prove a prima facie case of robbery in the first degree is without merit. His third and final claim, that the trial court erred in failing to instruct the jury on the lesser included offense of robbery, is without merit.
The judgment of the court below is due to be, and it is hereby, affirmed.
AFFIRMED.
All Judges concur.