Opinion
CR–05–2371.
03-05-2010
Jason Michael SHARP v. STATE of Alabama.
Cecilia A. Pope, Huntsville; Brian David Clark, Huntsville; Bryan A. Stevenson and Randall Susskind, Montgomery; and Jacqueline Dina Jones, New York, New York, for appellant. Troy King and Luther Strange, attys. gen., Tina M. Coker, asst. atty. gen. (withdrew 6/8/2010); and Kevin Wayne Blackburn, asst. atty. gen., for appellee.
Cecilia A. Pope, Huntsville; Brian David Clark, Huntsville; Bryan A. Stevenson and Randall Susskind, Montgomery; and Jacqueline Dina Jones, New York, New York, for appellant.
Troy King and Luther Strange, attys. gen., Tina M. Coker, asst. atty. gen. (withdrew 6/8/2010); and Kevin Wayne Blackburn, asst. atty. gen., for appellee.
On Remand from the Alabama Supreme Court
Judge Kellum was not a member of the Court of Criminal Appeals on August 29, 2008, when the decision on original submission in this case was released. This case was assigned to Judge Kellum on January 20, 2009.
The appellant, Jason Michael Sharp, was convicted of murder made capital because it was committed during the course of a rape or an attempted rape. See § 13A–5–40(a)(3), Ala.Code 1975. This Court remanded the case for the trial court to amend its sentencing order to include written findings as to the aggravating and mitigating circumstances. On return to remand, this Court affirmed Sharp's conviction and death sentence. See Sharp v. State, 151 So.3d 308 (Ala.Crim.App.2008).
Sharp petitioned the Alabama Supreme Court for certiorari review, arguing, among other things, that the State used its peremptory challenges to remove African–Americans from the jury venire, thus violating Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, Sharp argued that plain error occurred during the jury selection because the State failed to strike prospective white jurors for the same reasons it struck prospective African–American jurors. The Supreme Court granted certiorari review and on December 4, 2009, reversed this Court's judgment, holding:
“The record supports Sharp's contention that the State struck some African–American jurors whose responses to the questions posed in the jury questionnaires were similar to the responses of white jurors, although it did not strike the white jurors. Therefore, the record creates an inference of discrimination on the part of the State. Although the State may have race-neutral and nondiscriminatory reasons for its actions, it was never required to articulate them on
the record, and the record on its face is not adequate for us to determine whether a Batson violation occurred. Therefore, although we realize that the Court of Criminal Appeals did not have before it and was not required to review the juror questionnaires, we conclude that it is necessary to reverse its judgment and remand this case to the Court of Criminal Appeals for it to order further proceedings consistent with this opinion. See Floyd v. State, [Ms. CR–05–0935, September 28, 2007] ––– So.3d –––– (Ala.Crim.App.2007); Lewis v. State, [24 So.3d 480 (Ala.Crim.App.2006) (opinion on return to remand) ]. If the State cannot provide racially neutral reasons for the use of its peremptory challenges against African–American veniremembers, Sharp must receive a new trial. Ex parte Bankhead, 585 So.2d 112 (Ala.1991) ; Ex parte Jackson, 516 So.2d 768 (Ala.1986).”
Ex parte Sharp, 151 So.3d 329, 342 (Ala.2009).
In accordance with the Supreme Court's holding, we remand this case to the circuit court for that court to determine whether the State's reasons for using its peremptory challenges against African–American veniremembers were race neutral. If the circuit court, following a hearing, determines that Sharp is entitled to relief, it is authorized to grant such relief as it deems necessary.
The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the circuit court, together with the circuit court's written findings of fact.
REMANDED WITH INSTRUCTIONS.
WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.
On Remand from the Alabama Supreme Court and on Application for Rehearing on Return to Second Remand
PER CURIAM.
The opinion issued on March 23, 2012, on application for rehearing on return to second remand, is withdrawn, and the following opinion is substituted therefor.
On October 18, 2012, the Alabama Supreme Court vacated this Court's judgment of March 23, 2012, and remanded the case for us to “allow the parties to brief the issues raised by the trial court's Batson [v. Kentucky, 476 U.S. 79 (1986),] order and ... address those issues by further opinion.” For the most part, our March 23, 2012, opinion addressed the issues Sharp raises in his most recent briefs to this Court, and our opinion today is largely a restatement of our March 23, 2012, opinion, with additional discussion necessitated by the Supreme Court's order.
Jason Michael Sharp was convicted of capital murder because it was committed during the course of a rape or an attempted rape, see § 13A–5–40(a)(3), Ala.Code 1975. By a vote of 11 to 1, the jury recommended that Sharp be sentenced to death. The trial court accepted the jury's recommendation and sentenced Sharp to death.
On appeal, this Court remanded this case for the trial court to amend its sentencing order. Sharp v. State, 151 So.3d 308 (Ala.Crim.App.2008) ( “Sharp I ”). On return to remand, we affirmed Sharp's conviction and sentence. Sharp v. State, 151 So.3d 308, 327 (Ala.Crim.App.2008) (“Sharp II ”). The Alabama Supreme Court, after granting certiorari review of Sharp's petition, reversed this Court's judgment. The Court, applying the plain-error standard of review, held that “the record creates an inference of discrimination on the part of the State” in its use of its peremptory strikes. Ex parte Sharp, 151 So.3d 329, 342 (Ala.2009). See also Rule 45A, Ala. R.App. P. Because the State had not been required to articulate on the record its reasons for the use of its peremptory strikes and because the record before the Supreme Court was not adequate for that Court to determine whether a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), had occurred, the Court remanded the case for this Court to order further proceedings. Ex parte Sharp, 151 So.3d at 342. This Court then remanded the case for the trial court to conduct a Batson hearing at which the State was to provide its reasons for its peremptory strikes against African–American veniremembers and the trial court was to determine whether the prosecution had used its strikes in a racially discriminatory manner. See Sharp v. State, 151 So.3d 342 (Ala.Crim.App.2010) (“Sharp III ”).
On remand, the trial court complied with our instructions and, on April 27, 2010, conducted a Batson hearing. During that hearing, the State provided its reasons for striking African–American veniremembers. The trial court allowed Sharp to file a written response to the prosecution's reasons for striking African–American veniremembers. In his response, Sharp argued that the State's reasons for striking African–American veniremembers were pretextual. Thereafter, the State filed a written reply to Sharp's response. On July 16, 2010, the trial court entered an order finding that the prosecution had offered race-neutral reasons for its peremptory strikes against African–American veniremembers and that those reasons were not pretextual. The trial court found further that the State therefore had not violated Batson in the exercise of its peremptory strikes. This Court affirmed. Sharp v. State, (Ala.Crim.App.2010) (opinion on application for rehearing and return to second remand) (“Sharp IV ”).
The Alabama Supreme Court, in an order dated October 18, 2012, summarily vacated our judgment in Sharp IV and remanded the case “with instructions that [the Court of Criminal Appeals] allow the parties to brief the issues raised by the trial court's Batson order and that it then address those issues by further opinion.” (No. 1111489). In compliance with the Supreme Court's instructions, we ordered briefing on the issues raised by the trial court's Batson order. The parties completed briefing on December 17, 2012. We now have again reviewed the trial court's Batson order, and we again affirm.
In its brief filed after the Alabama Supreme Court's October 18, 2012, order, the State argues, among other things, that Sharp's Batson claim is not properly before this Court because it was not raised at trial. The State made essentially the same argument to the Alabama Supreme Court when it was in the process of deciding Ex parte Sharp, but the court nonetheless addressed Sharp's plain-error Batson claim. Consequently, we agree with Sharp that the law-of-the-case doctrine precludes us from considering the merits of the State's argument that Sharp's Batson claim is not properly before this Court. See, e.g., Clemons v. State, 123 So.3d 1, 12–13 (Ala.Crim.App.2012).
The venire in Sharp's case consisted of 80 potential jurors. The trial court excused nine of the veniremembers for cause. Of the remaining jury panel of 71 members, 14 were African–American and 57 were Caucasian. The prosecution struck 30 potential jurors, and the defense struck 29 potential jurors, with each party's last strike serving as an alternate juror. The State used 11 of its 30 strikes to remove African–American veniremembers, removing all but 3 African–Americans from the venire. The defense struck two African–American veniremembers. One African–American sat on Sharp's jury.
Sharp is Caucasian. In Batson, the United States Supreme Court held that black veniremembers could not be struck from a black defendant's jury because of their race, and in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the Court extended its decision in Batson to white defendants. See Grimsley v. State, 678 So.2d 1194, 1195 (Ala.Crim.App.1995).
At the Batson hearing, the State articulated its reasons for striking the 11 African–American veniremembers. Regarding Juror no. 55, the State provided as follows:
We set out the State's reasons in the order in which the State provided them at the hearing.
“[T]he State would then start with Juror Number 55. And the State would put forth as the reasons that Juror Number 55 was struck by the State, first and foremost, that the juror was opposed to the death penalty. And that was evidenced in the juror's questionnaire, specifically Question Number 53, and then in that the juror had responded that they would automatically vote against the death penalty. Also in 53 the juror wrote opposed with respect to the death penalty.
“And then in the general voir dire of the panel, the juror expressed opposition to the death penalty. And in individual voir dire, the juror said that she could only impose the death penalty if she had to.
“Further, the prosecution noted that in the juror's work that she dealt extensively with victims of abuse in her work and that she was a witness in many cases. She was in, specifically
“Do you have her questionnaire?
“She was a social service case worker, Judge. And that was of some concern to the State in that case, as I have noted. She had been a witness in many cases because of her work.
“Juror further acknowledged that she knew trial counsel....
“And then later of lesser importance to the State was the fact that she knew Your Honor in the case.
“We also noted in her questionnaire that her son had been a victim of an attempted murder case and that there had never been any conviction or prosecution in that attempted murder case.
“And, Judge, those are basically the reasons that the State struck Juror Number 55.”
(Record on Return to Remand (“RTR”), R. 5–6.)
The State gave the following reasons for striking Juror no. 37:
“[T]he reasons that we struck Juror Number 37, generally speaking, is he was opposed to the death penalty. On his questionnaire, on Question Number 53 that asked about personal, ethical, or moral beliefs against the death penalty that you'd automatically vote against it. He left it blank. He did not answer that. And then it was his feelings on the death penalty were uncovered during the voir dire portion of the trial in that he said he had a religious or moral objection to the death penalty.
“And then also in individual voir dire he said that the Bible teaches that vengeance is the Lord's.
“Additionally in individual voir dire he said he would not be able to live with himself if he had anything to do with the
defendant receiving the death penalty. That was the main reason that he was struck.
“And further there was his questionnaire there was just—there were so many questions that were left blank by this particular prospective juror, and included in those, I've already mentioned Question Number 53, as well as 54. He left blank Question 55. He left blank Question 56 having to do with should a defendant have effective assistance of counsel. Question 60 about whether the death penalty was used too often or not.
“We additionally noted his occupation, Judge, as being a custodian, and that was of some importance to us, besides the death penalty issues, in that as the Court is well aware that this was a circumstantial case that really the thrust of the State's evidence was DNA evidence, as the Court knows is somewhat sophisticated and technical evidence. So his sophistication socially or professionally was noted by the State.
“And those are the reasons that the State struck Juror Number 37.”
(RTR, R. 8–10.)
As to Juror no. 65, the State gave the following reasons:
“Juror Number 65, Question 53 in his questionnaire, again having to do with the death penalty, he answered in the affirmative that he would automatically vote against the death penalty. Additionally in Question 54 when the question asked if you have some feelings against the death penalty which fall short of the previous question, this prospective juror wrote, ‘Vengeance is mine saith the Lord, no man.’ It says, ‘believe life in prison instead.’ That was Question 54.
“And then also in Question 62 he also answered in the affirmative that you would automatically vote for its imposition. And then in voir dire of the entire group, the general voir dire, he raised his hand as having a religious or moral objection to the death penalty.
“In individual voir dire he said, ‘I am not in favor of the death penalty.’ He additionally said there might be some instances where maybe a juror could impose the death penalty. When asked in individual voir dire, could you impose the death penalty, he said, ‘I don't think so.’
“He also noted in voir dire that he had some family obligations that might prevent him from jury service.
“And those were the main factors of why Juror Number 65 was struck.”
(RTR, R. 10–11.)
Regarding Juror no. 39, the State explained:
“The next would be Juror Number 39. The first thing of note to the prosecution in this case was the fact that this juror was Seventh Day Adventist, his religion, that the Court had engaged the entire panel in general voir dire about possible service on Saturday and that this would conflict with his religious beliefs. That was our primary reason for striking him, that was he noted he was Seventh Day Adventist in his questionnaire in Question Number 8 and then also acknowledged that in voir dire.
“We also noticed from his questionnaire that he was unemployed and there was scant information from him about his employment. That was another factor in that.
“And then in Question Number 44, it says something about him or family in the ministry, and he indicated in there—it was not completely clear, I believe, judge. It says do you or any relative or close personal friend belong to any group or organization which [A.] ministers
to prisoners or inmates, B. Provides legal, social, or other assistance to prisoners, inmates, or ex-cons? He answered yes. And it says please explain. He said prison ministries. That, too, was a factor in our eliminating him from the jury.
“We also note in Question 26 that a friend of his was a pastor.
“Then in Question Number 79 at the end of the questionnaire, having to do with media and whether a particular juror could be fair, this juror answered, Juror Number 39 answered that he could not, not be fair.
“Also there was some—on Question Number 24, he didn't fully answer, have you, family, friend been accused of a crime. But there was no more information on that other than yes.
“And those are the reasons that the State struck Juror Number 39.”
(RTR, R. 11–12.)
The State said as follows for striking Juror no. 52:
“Next would be Juror Number 52. The first thing we noted in reviewing the questionnaires was that this juror's religious denomination was that of a Sabbath Keeper, which is nearly identical to Seventh Day Adventist, which brought up the possibility of a conflict as further discussed about the earlier juror and the possibility of the Court having to work through Saturday on this case.
“We also noticed in Question Number 26 that this juror had studied or was studying to become a minister. And it was determined that that was not the kind of juror we were looking for. We additionally noted that this juror's work history and present employment was that of somewhat manual labor, forklift operator. And again, with the realities of the case we had before us, Judge, with technical, sophisticated DNA evidence, that was not the kind of juror we were looking for.
“We also noted in Questions 22 and 23 that this juror was actually a witness to a murder and that her brother was, in fact, murdered and he had been convicted several times of varying offenses before he was murdered.
“It was just our feeling this juror was a little too connected to the process, in the role of a witness or in the role of a family member having to do with a murder.
“And those were the—those were the reasons that we struck Juror Number 52.”
(RTR, R. 12–13.)
As to Juror no. 27, the State set out the following reasons:
“Next, Judge, would be Juror Number 27. And first and foremost that occurred to us was her employment, that being a packer on an assembly line at Target Distribution Center. Her previous employment was at Burger King [fast-food restaurant]. And that was something obviously that the State in its quest for jurors that possessed a little more sophistication either in a professional or a social sophistication, that was of some concern to us, as the kind of employment she had.
“I also noticed, Judge, in Question Number 79 at the very end of the questionnaire, when the question asks, ‘If you've heard anything in the media regarding this case, do you feel you could still be fair and impartial?’ And she circled no. That caused us concern.
“And of equal concern was the fact that according to our records she had been charged with what appears to be six counts of possession of marijuana in the second degree. It appeared that she had been convicted on at least one of
these counts. These cases arose back in 1990. Of some interest to me was the fact I was exclusively a drug prosecutor from '88 until '94, so I would have been in the office. She appeared to have lived here in Madison County, these charges came out of Madison County.
“And all of those were of concern to the State and that's the reasons we struck Juror Number 27.”
(RTR, R. 14–15.)
Regarding Juror no. 11, the State explained:
“Judge, the next one would be prospective Juror Number 11. And the reasons that the State struck her, first, we noted she too was Seventh Day Adventist. For the reasons earlier stated, she was not desirable to us.
“We also noticed in her employment questions, specifically Number 6, that she had been—she was unemployed. And when asked previous work experience for the last 10 years, she had none. It asked what her husband's work was. Apparently she had an ex-husband. And when asked what work he did she said unknown.
“And again, in the employment area, in light of the evidence we were presenting that was not a desirable juror to us.
“In Question Number 79, she didn't give an answer in Question Number 79 about media and whether she could be fair and impartial.
“We had noted that she did have a conviction for issuing a worthless check through our records.
“....
“Well, she didn't fully answer Number 74. And, Judge, those were the reasons that the State struck Juror Number 11.”
(RTR, R. 15–16.)
The State noted that it struck Juror no. 64 for the following reasons:
“The next, Judge, would be Juror Number 64. The first thing we noted was that this juror had served on three juries in the previous six years before the trial in the incident case. One of those cases had resulted in a not guilty verdict. We noted when this juror filled out her questionnaire, when some of the princip[les] of the criminal law was discussed that she had circled reasonable doubt in Question 50. And on Question 55 also asked if there was any other information. And she said, ‘I'm a great person.’ And in general, Judge, our feeling was—our feeling was that she was, for lack of a better term, a little bit too much of a somewhat arrogant, professional juror. Because in general voir dire she was fairly verbal in that process asking about whether the death penalty has appeals. She was just—she was pretty vocal. And the fact that she had had prior service seemed to be, again, for the lack of a better word, seemed to be somewhat of a professional juror. One of those prior juries she had returned a not guilty.
“We also noted that this juror was a nurse. As the Court well remembers, the victim in this case was a nurse, as was one of our key witnesses. And we were of the opinion that to risk a juror second guessing what a key witness in our case, Nurse Kim Hellums had done in the hospital, was something to be avoided.
“And Juror Number 64 was struck for those reasons.”
(RTR, R. 16–17.)
Regarding Juror no. 38, the State provided:
“The next one, Judge, would be Juror Number 38. One of the first things we noticed on this was this particular juror's checkered employment history,
that she was presently working as a car rental agent and had only been on the job for two weeks. And from her employment history section, Question 17, she had never been at any employer for more than three months. So it appeared to total roughly seven months of work in the last 10 years. She did not appear to be sophisticated to us in filling out her questionnaire, in that she misspelled Wal–Mart as one of her previous employers as Wal–Marts.
“There was some questions she did not answer such as Question Number 50. She said she knew some attorney in Michigan, but not much—in Question Number 26, but not much more information than that. And what was noted from my seating chart, Judge, is that this particular juror appeared to me to be somewhat inattentive and disinterested during the voir dire process.
“And for those reasons we struck Juror Number 38.”
(RTR, R. 17–18.)
As to Juror no. 47, the State explained:
“Judge, our next one would be Juror Number 47. And the first thing we noted was again in the area professional or social sophistication, that this lady was a cafeteria manager, that her husband was a security guard, that she had answered some questions, and I'm not trying to lead the Court to believe she's the only one who messed up these answers, because there were a number of people on the panel, and some that remained on the jury that, too, had trouble with some questions such as Question Number 50, if the burden should be beyond all doubt for the State and she said yes. That the defendant—in Question 58, that the defendant should be required to testify.
“And then we got to the area of media exposure and she was—she was in—we noted in her questionnaire that she said she never watched TV. And then in the general voir dire she had said that she had seen some media exposure of this case. And then we further voir dired her in individual voir dire, and I made a note on my seating chart that as a result of that she said she could be fair, but as a result of that questioning, I don't know if it was specifically that question, but I detected a hostility on her part just in general. Didn't know if she wanted to be here.
“But between that, that I noted about her, the fact that her sophistication level was somewhat suspect in our opinion and we had uncovered she had also had an issuing a worthless check, it was for those reasons, Judge, that we struck Juror Number 47.”
(RTR, R. 19–20.)
Finally, regarding Juror no. 74, the State provided:
“Judge, the next one would be Juror 74. In reviewing her questionnaire we noted at Question 20 that she had had previous jury service, one involving a capital murder charge where the defendant received a sentence of life without parole. That was of some interest to us and we were not—obviously we were seeking the death penalty in this case, we were not looking for any expert jurors or seasoned jurors in this case.
“In fact, when you look at the twelve that remained on the jury only one juror had ever served on a jury and it was 45 [sic] years before this case, roughly, back in the '70s according to him.
“We also noticed here on Juror Number 74 that her occupation was a secretary. That in the questionnaire on Question Number 67 it says, ‘Do you agree that the indictment charging capital murder is only a formal charge and
has nothing to do with guilt or innocence?’ She says, ‘No.’
“Question 74 we noted that she didn't—she didn't explain her answer. We also noted that her son in Question 23 was the victim of two robberies, both being obviously a violent crime, and that no arrest or convictions were had in that case.
“And, Judge, it's for those reasons that we struck Juror Number 74.”
(RTR, R. 21–22.)
During the Batson hearing, the trial court inquired about the State's strike of Juror no. 38 based on her employment history, specifically asking if the prosecutor knew that Juror no. 38 was retired—the prosecutor indicated that he did not know that Juror no. 38 was retired. Additionally, the prosecutor explained the “lack-of-sophistication” reason he had given for striking several African–Americans as follows:
“[W]ith respect to professional or social sophistication, Judge, I will note for the Court that when you do look at the jurors who remained on this case, the Court will find that they were all professionals or of management level, with the exception of one lady who was a housewife but married to a guy who worked at Dunlop Tire who had appeared in court as an expert witness. And this lady also had two children who were both educated.
“And it was the State's intent, as I said earlier, that with the level of technical jury that this—or technical evidence that this jury was going to have to confront that that was one of the main concerns of the State in this case, to, in fact, get a jury that could comprehend DNA evidence. As the Court remembers the defense put up a DNA expert in this case. And the defense had actually sent the DNA evidence to two other independent labs, so we were not sure exactly what may be confronting us. Obviously we had DNA testimony from Rodger Morrison at [the Department of Forensic Sciences].”
(RTR, R. 20–21.)
Following the hearing, the trial court entered the following order:
“This matter having come before the Court on remand from the Alabama Court of Criminal Appeals, this court having been directed to conduct a hearing to determine if the State improperly used its peremptory jury challenges against African–American venire members in a manner such as to violate Batson v. Kentucky, 476 U.S. 79 (1986), the Court having conducted such a hearing on April 27, 2010, the court having considered the reasons offered by Madison County District Attorney ... as to the use of the State's peremptory challenges, the court having reviewed the transcript of the voir dire and the jury questionnaires, the court having further reviewed the Defendant's Rebuttal to Prosecutor's Reasons for Striking Black Jurors, the court makes the following findings of fact and conclusions of law:
“Juror No. 55
“The State offered the following reasons for having used a peremptory challenge to remove this juror:
“1. This prospective juror was opposed to the death penalty.
“2. This prospective juror was a social services case worker. This prospective juror dealt with victims' abuse and was a witness in many cases.
“3. This prospective juror knew one of the defendant's counsel.
“4. This prospective juror knew the trial judge.
“5. This prospective juror's son was the victim of an attempted murder for
which there had never been a prosecution.
“The court has examined the record and noted that Juror No. 55 stated that she ‘wouldn't want to impose’ the death penalty but that she thought she could ‘go along with it’ under certain circumstances. (R. 292.) While this juror did not initially indicate that she was acquainted with defense counsel ... or the undersigned judge, she later admitted to these associations in response to direct questioning. (R. 80; 29; 293.) The record also supports the State's contention that her son had been the victim of an attempted murder. Moreover, as a [Department of Human Resources] social worker, this prospective juror acknowledged that she has ‘seen a lot’ of abuse over the years. (R. 139.)
“Alabama courts have previously held that a juror's mixed feelings or reservations about imposing the death penalty in a capital case is a valid race-neutral reason to exercise a peremptory challenge. Acklin v. State, 790 So.2d 975 (Ala.Crim.App.2000). In addition, the courts have upheld challenges in cases where a juror was struck because he or she had a family member who was the victim of a violent crime. Given the totality of the circumstances in this case, the reasons offered by the State with regard to this juror are neutral, non-race-related reasons.
“Juror No. 37
“The State's prosecution offered the following reasons for having used a peremptory challenge against this juror:
“1. This prospective juror was opposed to the death penalty.
“2. This prospective juror did not answer various questions on the questionnaire.
“3. This prospective juror is a custodian and therefore may not be sufficiently sophisticated to serve on this jury.
“Upon review of the record and based on this Court's personal observations, Prospective Juror No. 37 expressed strong reservations about his ability to impose the death penalty. In fact, this juror was arguably one of the most impassioned persons regarding his views, stating that he ‘would not be able to live with himself if [he] had something to so with someone going to the electric chair....’ (R. 287.) Given the colloquy which took place and this juror's obviously mixed feelings at having to serve as a juror in this case, the court finds that the reason proffered by the State was a valid race-neutral reason. Acklin v. State, 790 So.2d 975 (Ala.Crim.App.2000).
“The court has reviewed the jury questionnaire and agrees with the State that this juror failed to respond to several of the questions asked. These questions involved issues regarding weighty constitutional and legal principles. Alabama courts have previously held that a lack of response is a valid race-neutral reason for striking a venire-member. Hocker v. State, 840 So.2d 197 (Ala.Crim.App.2002). The court finds the proffered reason to serve as a further race-neutral reason in this case.
“The court finds insufficient evidence was presented to show that this prospective juror was too unsophisticated to serve as a juror in this case. Although he failed to respond to questions asked in the questionnaire, no evidence was presented that this omission was a product of his inability to comprehend the questions posed. Moreover, his occupation as a custodian, standing alone, is insufficient to establish his lack of sophistication.
“However, given the fact that this was not the sole reason upon which the State exercised its peremptory challenge, the court finds that the use of the peremptory challenge with regard to this juror not to be racially motivated.
“Juror No. 65
“The State's prosecution offered the following reasons for having used a peremptory challenge against this juror:
“1. This prospective juror's opinion about the death penalty.
“2. This prospective juror's family obligations interfered with his ability to serve.
“The record reflects that this juror wrote ‘vengeance is mine sayeth the Lord’ in response to a question regarding the death penalty. He stated that he could conceive of no circumstance under which he could impose the death penalty and then equivocated and stated ‘[M]aybe sir. I'm not a hundred percent.’ (R. 226.)
“Based on the responses given by this prospective juror and the court's observation, the court finds that the reason given by the State for the use of this peremptory strike to be a valid, race-neutral reason. Acklin v. State, 790 So.2d 975.
“Of lesser significance was the fact that this juror indicated that he had a potential family conflict. Such a reason has been held to be a race-neutral reason. Brown v. State, 623 So.2d 416 (Ala.Crim.App.1993).
“The court finds that in this case, the use of the peremptory strike against this juror was not race-motivated.
“Juror No. 39
“The State's prosecution offered the following reasons for having used a peremptory challenge against this juror:
“1. This prospective juror was a Seventh Day Adventist and this trial was potentially scheduled to take place on a Saturday.
“2. This prospective juror was unemployed.
“3. This prospective juror has a relative involved in prison ministries.
“4. This prospective juror's questionnaire was incomplete.
“5. This prospective juror indicated that he could not be fair.
“This juror indicated that he could not engage in any activities other than religious activities on Saturdays because of his religious belief. (R. 209). As noted previously, outside obligations of a prospective juror, especially one of a religious nature, are a sufficiently neutral non-race-related reason to use a peremptory challenge. Brown [,] 623 So.2d at 416. Similarly, religious-based strikes have also been deemed to be race-neutral, Harris v. State, 2 So.3d 880 (Ala.Crim.App.2007). The court finds that sufficient evidence existed to support the use of a peremptory challenge with regard to this juror.
“The fact that this juror was unemployed, standing alone, may not constitute a sufficient reason for striking this juror. However, given the validity of the other stated reasons, the court finds no racially motivated animus in the use of this peremptory challenge.
“Juror No. 52
“The State offered the following reasons for having used a peremptory challenge against this juror:
“1. This prospective juror was a Sabbath Keeper.
“2. This prospective juror was studying to become a minister.
“3. This prospective juror's brother was murdered and prior to his murder, he had engaged in criminal conduct.
“4. This prospective juror had witnessed a murder and was ‘too connected with the process.’
“5. This juror lacked sophistication in light of the technical evidence to be presented.
“Juror No. 52 asked to speak to the court and counsel privately. She revealed that she had been victim of an ‘almost rape.’ (R. 211–212.) She witnessed a murder. (R. 212.) Her brother had a criminal history and was murdered. No one was ever prosecuted for that crime. (R. 212–213.)
“The fact that a juror or a juror's family member was the victim of a crime is a sufficient race-neutral reason. Tinker v. State, 932 So.2d 168 (Ala.Crim.App.2005).
“This juror's religious affiliation was also cited as a reason for the use of a peremptory challenge and the court finds this reason to be race-neutral.
“The stated reasons that this juror's work history was not conducive to serving as a juror in this case is not supported by the information conveyed at trial. Nonetheless, the totality of the reasons given supports the finding that the State did not improperly strike this juror.
“Juror No. 27
“The State proffered the following reasons for having used a peremptory challenge against this juror:
“1. This prospective juror's employment history indicated a lack of sophistication.
“2. This prospective juror had been charged and convicted of drug possession.
“3. The District Attorney had a belief that he may have served as the prosecutor on her case.
“A strike based on information on a prospective juror's criminal history has been held to be race-neutral. Ex parte Brown, 686 So.2d 409 (Ala.1996). In this case, the District Attorney also noted that he likely served as the prosecutor on the case but this juror never indicated that she recognized him. These reasons supported her removal as a juror.
“The District Attorney also indicated that this juror was not sophisticated. Based on the court's observations and the responses given on this case, the trial court finds this to be a race-neutral reason.
“Juror No. 11
“The State offered the following reasons for having used a peremptory challenge against this juror:
“1. This prospective juror was a Seventh Day Adventist.
“2. This prospective juror's current work status and previous employment.
“3. This prospective juror provided insufficient responses to the questions asked.
“4. This prospective juror has a worthless check conviction.
“As stated previously in this order, a juror's criminal conviction, religious affiliation, and evasiveness are all race-neutral reasons for the use of a peremptory strike. Moreover, this juror indicated that she had not been employed in ten years. While her current unemployment, standing alone, may not have been a sufficiently race-neutral reason, when compiled with the other factors enunciated by the District Attorney, the reasons stated were sufficient.
“Juror No. 64
“At the hearing in this case, the State indicated that Juror No. 64 was struck because:
“1. This prospective juror served on three juries in six years and in at least one of those cases, the jury reached a ‘not guilty’ verdict.
“2. This prospective juror appeared arrogant and vocal, giving the appearance of being a ‘professional juror.’
“3. This prospective juror was a nurse, the same profession as the victim in this case and a key witness.
“4. This prospective juror made a questionable notation in her questionnaire answer.
“The fact that a juror has served on a prior case in which a ‘hung jury’ resulted has been held to be a race-neutral reason. Trawick v. State, 698 So.2d 151 (Ala.Crim.App.1995). Moreover, this court had the opportunity to observe the demeanor of this juror. The fact that the juror was employed as a nurse and that the State was concerned that she may be critical of steps taken by other health care providers in collecting evidence in this case also apparently factored into the State's decision to strike this juror. These stated reasons were race-neutral.
“Juror No. 38
“The reasons cited for the use of a peremptory strike to remove this prospective juror from the jury venire include:
“1. This prospective juror's employment history.
“2. This prospective juror's lack of sophistication.
“3. This prospective juror's lack of responses.
“4. This prospective juror's inattentiveness.
“This court had the ability to observe this prospective juror's demeanor and participation in the voir dire process. Based on this court's recollection, the State's proffered reason for striking this juror for ‘inattentiveness' was justified. See Woods v. State, 724 So.2d 40 (Ala.Crim.App.1997). In addition, the fact that she failed to complete her jury questionnaire was a race-neutral reason for striking this juror.
“With regard to the State's claim that this juror lacked sophistication in filling out her questionnaire, this court finds that the fact that she misspelled a word does not necessarily indicate a lack of sophistication. However, when coupled with her employment history and her demeanor, the court finds that the use of peremptory strike by the State was race-neutral.
“Juror No. 47
“The reasons given by the State for the use of its peremptory challenge with regard to this juror include:
“1. This prospective juror's lack of sophistication.
“2. Concerns about this prospective juror's veracity.
“3. This prospective juror's display of hostility.
“4. This prospective juror's criminal history for issuing worthless checks.
“A perceived lack of sophistication of a prospective juror when faced with technical expert evidence in a case has been held to constitute a race-neutral reason for the use of a peremptory challenge. T.K.S. v. State, 673 So.2d 429 (Ala.Civ.App.1995). The court had an opportunity to observe this juror and her demeanor. The court finds that the District Attorney's stated reason for striking this juror based on her perception that she was hostile is a valid, race-neutral reason. See
Brown v. State, 623 So.2d 416 (Ala.Crim.App.1993). Finally, as noted previously in this order, the fact that this juror had a criminal conviction also justified the State's use of a peremptory challenge.
“Juror No. 74
“The State contended that it used a peremptory challenge to remove this veniremember because of the following:
“1. This prospective juror served on a prior case involving capital murder and the Defendant received a life sentence.
“2. This prospective juror's son was the victim of two robberies.
“3. This prospective juror was employed as a secretary.
“4. The State questioned the prospective juror's response to the one of the questions contained in the questionnaire.
“As stated previously in this order, the fact that a juror served on a prior jury which returned a verdict which was less than favorable to the prosecution is a race-neutral reason. Such is the case here. Moreover, the fact that the juror's son was the victim of two violent crimes also justified the State's removal of this juror from the jury.
“The fact that this juror is employed as a secretary is not clearly a race-neutral reason but based upon the other articulated reasons, this juror was not struck for any improper reason.
“....
“Conclusion
“The court finds that as set forth in this Order, the State demonstrated valid, race-neutral reasons for the use of its peremptory challenges with regard to the jury venire in this case. Those reasons which the court found to be valid were not a function of pretext or sham and this Court further finds that no further relief is due to be afforded to the Defendant in this case.”
(RTR, R. 104–11.)
Evaluation of a Batson claim involves the following three steps:
“ ‘First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. [Batson v. Kentucky, ] 476 U.S. [79,] 96–97 [ (1986) ]. Second, if that showing has been made, the prosecution must offer a race-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.’ ”
McCray v. State, 88 So.3d 1, 17 (Ala.Crim.App.2010) (quoting Miller–El v. Cockrell, 537 U.S. 322, 328–29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ).
In Ex parte Sharp, the Alabama Supreme Court held that the record raised an inference of discrimination. 151 So.3d at 342. Thus, the first step of the Batson process—a prima facie case of discrimination—has been established.
Under the second step of the Batson process, the burden shifts to the prosecution to offer a race-neutral reason for striking the juror or jurors in question. Ex parte Branch, 526 So.2d 609, 623 (Ala.1987). See, e.g., Ex parte Bird, 594 So.2d 676, 680 (Ala.1991). The prosecution 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. See also Ex parte Bird, 594 So.2d at 680. The reason for the strike, however, need not rise to the level of a strike for cause, and the issue is the facial validity of the prosecutor's explanation. Ex parte Branch, 526 So.2d at 623 ; Doster v. State, 72 So.3d 50, 73 (Ala.Crim.App.2010).
The trial court here held that the State met its burden under the second stage of the Batson inquiry to articulate a “facially neutral” reason for excluding prospective African–American jurors.
“ ‘Within the context of Batson, a “race-neutral” explanation “means an explanation based on something other than 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 reason 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 [a] 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.1994) (emphasis added). See also Rogers, 819 So.2d at 649. ‘ “The trial court is in a better position than the appellate court to distinguish bona fide reasons from sham excuses.” ’ Harris v. State, 2 So.3d 880, 899 (Ala.Crim.App.2007) (quoting Heard v. State, 584 So.2d 556, 561 (Ala.Crim.App.1991) ). Thus, ‘ “ ‘[o]n appeal, the trial court's ruling on the question whether the responding party offered legitimate race-neutral reasons will not be overturned unless it is clearly erroneous.’ ” ' Harris, 2 So.3d at 899 (quoting Harrison v. State, 879 So.2d 594, 607 (Ala.Crim.App.2003) (quoting in turn Ex parte Brooks, 695 So.2d [184] at 190 [ (Ala.1987) ] )). ‘ “ ‘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.’ ” ' Fletcher v. State, 703 So.2d 432, 436 (Ala.Crim.App.1997) (quoting Davis v. State, 555 So.2d 309, 312 (Ala.Crim.App.1989) (quoting in turn Powell v. State, 548 So.2d 590, 594 (Ala.Crim.App.1988), aff'd, 548 So.2d 605 (Ala.1989) )).
“....
“... It is well settled that ‘[a]s long as one reason given by the prosecutor for the strike of a potential juror is sufficiently race-neutral, a determination concerning any other reason given need not be made.’ Johnson v. State, 648 So.2d 629, 632 (Ala.Crim.App.1994). See also Jackson v. State, 791 So.2d 979, 1009 n. 6 (Ala.Crim.App.2000) ; Brown v. State, 705 So.2d 871, 874 (Ala.Crim.App.1997) ; and Wood v. State, 715 So.2d 812, 816 (Ala.Crim.App.1996), aff'd, 715 So.2d 819 (Ala.1998). ‘Where a prosecutor gives a reason which may be a pretext, ... but also gives valid additional grounds for the strike, the race-neutral reasons will support the strike.’ Battle v. State, 574 So.2d 943, 949 (Ala.Crim.App.1990).”
Martin v. State, 62 So.3d 1050, 1058–60 (Ala.Crim.App.2010).
We agree with the trial court's conclusion that the State provided facially race-neutral reasons for striking the 11 African–American jurors and that it therefore satisfied its burden under step two of the Batson process. Both the Alabama Supreme Court and this Court have specifically recognized as race neutral the reasons asserted by the State here, such as opposition to the death penalty; the fact that the prospective juror had been the victim of a crime or had a relative who had been the victim of a crime; the failure to answer questions on a juror questionnaire; religious beliefs or practices; prior convictions; lack of mental acuity; evasiveness or inattentiveness to questioning; service on a prior case in which the outcome had been less than favorable for the State; demeanor; bias; and unemployment.
See, e.g., Whatley v. State, 146 So.3d 437 (Ala.Crim.App.2010) (opinion on return to remand), and the cases cited therein (mixed views on or reservations concerning capital punishment, previous criminal charges, prosecutions or convictions of prospective juror or family member, acquaintance with attorneys involved in the case, demeanor, and employment are all valid race-neutral reasons for peremptory strike); Stanley v. State, 143 So.3d 230 (Ala.Crim.App.2011), and the cases cited therein (prospective juror's criminal history or relatives who have prior arrests or convictions are valid race-neutral reasons for peremptory strikes); Martin v. State, 62 So.3d 1050, 1063 (Ala.Crim.App.2010) (“Failure to answer questions on a juror questionnaire is a race-neutral reason for a peremptory strike.”); Harris v. State, 2 So.3d 880, 900 (Ala.Crim.App.2007) (religious-based reasons are race-neutral reasons for peremptory strikes); Johnson v. State, 43 So.3d 7, 12 (Ala.Crim.App.2009) (the fact that a prospective juror “lacked mental acuity” or previously served on a jury that returned a not-guilty verdict is a race-neutral reason for a peremptory strike); and Rogers v. State, 819 So.2d 643, 649–50 (Ala.Crim.App.2001), and the cases cited therein (the inattentiveness or bias of a veniremember is a race-neutral reason for a strike).
In the third step of the process, the defendant has the opportunity to offer evidence indicating that the reason or explanation offered by the State for challenging the juror in question is merely a sham or pretext. Ex parte Branch, 526 So.2d at 624. Throughout the Batson process, “[t]he defendant maintains at all times ... the ultimate burden of proving intentional discrimination.” United States v. Houston, 456 F.3d 1328, 1335 (11th Cir.2006) (citing Batson, 476 U.S. at 94 n. 18.
In light of both parties' submissions, the trial court must determine whether the defendant has carried his or her burden of showing purposeful discrimination. See Ex parte Brooks, 695 So.2d 184, 190 (Ala.1997) ; Ex parte Branch, 526 So.2d at 624. See also Fletcher v. State, 703 So.2d 432, 435 (Ala.Crim.App.1997) (“When the defendant challenges as pretextual the prosecutor's explanations as to a particular venireperson, the inquiry becomes factual in nature and moves to step three. At this step the trial court must resolve the factual dispute, and whether the prosecutor intended to discriminate is a question of fact. Hernandez v. New York, 500 U.S. 352, 364–65, 111 S.Ct. 1859, 1868–69, 114 L.Ed.2d 395 (1991).”). In making that determination, the trial court must confront the “decisive question” and evaluate the credibility of the prosecution's explanation, Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), “in light of all evidence with a bearing on it,” Miller–El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). See also Miller–El v. Cockrell, 537 U.S. at 338–39 ; Batson, 476 U.S. at 98. Cf. Greene v. Upton, 644 F.3d 1145, 1155 (11th Cir.2011) (“Batson does not require elaborate factual findings. See Miller–El v. Cockrell, 537 U.S. 322, 328–29, 123 S.Ct. 1029, 1035, 154 L.Ed.2d 931 (2003) ; see also Hightower v. Terry, 459 F.3d 1067, 1072 n. 9 (11th Cir.2006) (‘We may therefore make “the common sense judgment”—in light of defense counsel's failure to rebut the prosecutor's explanations and the trial court's ultimate ruling—that the trial court implicitly found the prosecutor's race-neutral explanations to be credible, thereby completing step three of the Batson inquiry.’)”). In addition, “ ‘[t]he explanation offered for striking each black juror must be evaluated in light of the explanations offered for the prosecutor's other peremptory strikes, and as well, in light of the strength of the prima facie case.’ ” Ex parte Bird, 594 So.2d 676, 683 (Ala.1991) (quoting Gamble v. State, 257 Ga. 325, 327, 357 S.E.2d 792, 795 (1987) ). In other words, all relevant circumstances must be considered in determining whether purposeful discrimination has been shown. See, e.g., Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (“[I]n reviewing a ruling claimed to be a Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.”).
“Under Alabama law, the trial judge must ‘evaluat[e] the evidence and explanations presented’ and ‘determine whether the explanations are sufficient to overcome the presumption of bias.’ Branch, 526 So.2d at 624. ‘The trial judge cannot merely accept the specific reasons given ... at face value; the judge must consider whether the facially neutral explanations are contrived to avoid admitting the acts of group discrimination.’ Id. ”
Smith v. Jackson, 770 So.2d 1068, 1072–73 (Ala.2000).
The Alabama Supreme Court in Ex parte Branch provided the following illustrative examples of the types of evidence the defendant could offer to demonstrate that the stated reason for challenging the juror in question is a sham or pretext:
“1. The reasons given are not related to the facts of the case.
“2. There was a lack of questioning to the challenged juror, or a lack of meaningful questions.
“3. Disparate treatment—persons with the same or similar characteristics as the challenged juror were not struck.
“4. Disparate examination of members of the venire; e.g., a question designed to provoke a certain response that is likely to disqualify the juror was asked to black jurors, but not to white jurors.
“5. The prosecutor, having 6 peremptory challenges, used 2 to remove the only 2 blacks remaining on the venire.
“6. ‘An explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.’ Slappy [v. State ], 503 So.2d [350] at 355 [ (Fla.Dist.Ct.App.1987) ]. For instance, an assumption that teachers as a class are too liberal, without any specific questions having been directed to the panel or the individual juror showing the potentially liberal nature of the challenged juror.”
Ex parte Branch, 526 So.2d at 624 (citations omitted).
In reviewing the trial court's ultimate conclusion on discriminatory intent, we apply the “clearly erroneous” standard of review. Hernandez, 500 U.S. at 364 ; Yancey v. State, 813 So.2d 1, 3 (Ala.Crim.App.2001). See also Greene, 644 F.3d at 1155. This deferential standard of review is applicable because intent to discriminate is a question of fact. Hernandez, 500 U.S. at 366–67. In Snyder, 552 U.S. at 477, the United States Supreme Court stated the following regarding the deferential standard of review applied to a trial court's determination regarding discriminatory intent:
“On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. See
Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395, (1991) (plurality opinion); id., at 372, 111 S.Ct. 1859, (O'Connor, J., joined by Scalia, J., concurring in judgment). The trial court has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry involves an evaluation of the prosecutor's credibility, see 476 U.S. at 98, n. 21, 106 S.Ct. 1712 and ‘the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge,’ Hernandez, 500 U.S. at 365, 111 S.Ct. 1859 (plurality opinion). In addition, race-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie ‘ “peculiarly within a trial judge's province,” ’ ibid. (quoting Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) ), and we have stated that ‘in the absence of exceptional circumstances, we would defer to [the trial court].’ 500 U.S. at 366, 111 S.Ct. 1859.”
552 U.S. at 477, 128 S.Ct. 1203. Similarly, this Court has stated:
“ ‘When reviewing a trial court's ruling on a Batson motion, this court gives deference to the trial court and will reverse a trial court's decision only if the ruling is clearly erroneous.’ Yancey v. State, 813 So.2d 1, 3 (Ala.Crim.App.2001). ‘A trial court is in a far better position than a reviewing court to rule on issues of credibility. [’] Woods v. State, 789 So.2d 896, 915 (Ala.Crim.App.1999). ‘Great confidence is placed in our trial judges in the selection of juries. Because they deal on a daily basis with the attorneys in their respective counties, they are better able to determine whether discriminatory patterns exist in the selection of juries. ’ Parker v. State, 571 So.2d 381, 384 (Ala.Crim.App.1990).
“ ‘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 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 lie “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. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).”
Doster, 72 So.3d at 73–74 (emphasis added). See also Bryant v. State, 951 So.2d 732, 740 (Ala.Crim.App.2003).
The third step of the Batson analysis has been further explained:
“The reasons stated by the prosecutor provide the only reasons on which the prosecutor's credibility is to be judged.
United States v. Houston, 456 F.3d 1328, 1335 (11th Cir.2006). The credibility of the prosecution's explanation is to be evaluated considering the ‘totality of the relevant facts,’ including whether members of a race were disproportionately excluded. Hernandez [v. New York ], 500 U.S. [352] at 363, 111 S.Ct. at 1868 [ (1991) ] (quotation marks and citation omitted). Questions arise regarding the credibility of the explanation and the possibility that the explanation is pretextual (1) when the prosecutor's explanation for a strike is equally applicable to jurors of a different race who have not been stricken, Caldwell v. Maloney, 159 F.3d 639, 651 (1st Cir.1998) ; (2) upon a comparative analysis of the jurors struck and those who remained, Turner v. Marshall, 121 F.3d 1248, 1251–52 (9th Cir.1997), including the attributes of the white and black venire members, Houston, 456 F.3d at 1338 ; (3) or when the prosecution fails to engage in a meaningful voir dire examination on a subject that it alleges it is concerned, Miller–El [v. Dretke ], 545 U.S. [231] at 246, 125 S.Ct. at 2328 [ (2005) ]. Evidence of purposeful discrimination may be shown through side-by-side comparisons confirming that the reasons for striking a black panelist also apply to similar non-black panelists who were permitted to serve. See id. at 241, 125 S.Ct. at 2325. A prosecutor's reasonable explanation for objecting to a black panelist based on his or her opinions or comments may be undercut by the prosecution's failure to object to other white panelists who expressed similar views, and may be evidence of pretext. Id. at 248, 125 S.Ct. at 2329–30. The prosecutor's failure to strike similarly situated jurors is not pretextual, however, ‘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). Neither a prosecutor's mistaken belief about a juror nor failure to ask a voir dire question provides ‘clear and convincing’ evidence of pretext. McNair [v. Campbell ], 416 F.3d [1291] at 1311–12 [ (11th Cir.2005) ].”
Parker v. Allen, 565 F.3d 1258, 1271 (11th Cir.2009) (emphasis added). See also United States v. Walker, 490 F.3d 1282, 1294 (11th Cir.2007) (providing that because the “trial judge is in the best position to evaluate an attorney's candor and ferret out purposeful discrimination,” an appellate court will defer to trial court's findings on genuineness of reasons even when “troubled by the weakness of record evidence”). The evaluation of the credibility of the prosecutor's explanation in the third step demands consideration of the totality of the relevant facts, and we defer to a trial court's findings as to the “genuineness” of the prosecutor's proffered reason or reasons. See, e.g., Snyder, 552 U.S. at 477 ; Walker, 490 F.3d at 1294.
“The objecting party may carry its burden by showing that the striking party's race-neutral reason is a mere pretext for discrimination.” United States v. Bernal–Benitez, 594 F.3d 1303, 1312 (11th Cir.2010). As noted above, one way the defendant may demonstrate that the offered reason is a pretext is to show that it applies with equal force to veniremembers of another race who were not struck. Miller–El v. Dretke, 545 U.S. at 241.Here, as noted, the prosecution offered multiple reasons in support of its strikes of the jurors in question (Jurors no. 55, 37, 65, 39, 52, 27, 11, 64, 38, 47, and 74). In the trial court and in his materials to this Court, Sharp attacks many of the prosecution's stated reasons for striking those jurors. Indeed, for most of those jurors, Sharp has offered reasons arguably demonstrating that one or more of the prosecution's stated reasons for striking that juror could be viewed as a sham or a pretext. Under our well settled case law, however,
“ ‘[a]s long as one reason given by the prosecutor for the strike of a potential juror is sufficiently race-neutral, a determination concerning any other reason given need not be made,’.... [and] ‘[w]here a prosecutor gives a reason which may be a pretext, ... but also gives valid additional grounds for the strike, the race-neutral reasons will support the strike. ’ ”
Martin, 62 So.3d at 1059–60 (emphasis added; citations and quotation omitted). Sharp has not demonstrated, as to any individual juror in question, that all the stated reasons for striking that juror were a sham or a pretext. Thus, Sharp has not demonstrated that the prosecution violated Batson.
The analysis in our opinion in Sharp IV was grounded on this well settled principle of law and, in fact, cited Martin for that principle. In his most recent materials submitted to this Court, Sharp does not directly address Martin or the principle stated therein or the cases cited in Martin that stand for that principle. Many of his arguments, however, are inconsistent with that specific principle stated in Martin and for this Court to agree with Sharp would require us to overrule the numerous cases cited in Martin that stand for that legal principle—which Sharp has not asked us to do. For example, Sharp argues: “Had the trial court conducted the correct Batson analysis by examining all of the reasons given in light of all of the relevant circumstances of this case and applying the controlling legal princip[le]s, it would have been compelled to conclude that the prosecutor discriminated against African Americans when exercising his peremptory strikes.” (Sharp's reply brief dated December 17, 2012, pp. 18–19 (emphasis in original).)
In concluding that the trial court's order should be reversed, the dissenting opinion states:
“[I]n making the determination whether that one specific reason proffered by the State is pretextual or non-pretextual ... a court is required to consider all relevant circumstances, including the other reasons proffered by the State for that particular strike and the reasons proffered by the State for its other strikes. Neither Martin nor the general rule as cited in Martin say otherwise.”
151 So.3d at 377 (emphasis added). We fail to see how the belief expressed in the dissenting opinion that a court must consider “the other reasons proffered by the State for that particular strike and the reasons proffered by the State for its other strikes” is consistent with the statement in Martin that
“ ‘[a]s long as one reason given by the prosecutor for the strike of a potential juror is sufficiently race-neutral, a determination concerning any other reason given need not be made,’.... [and] ‘[w]here a prosecutor gives a reason which may be a pretext, ... but also gives valid additional grounds for the strike, the race-neutral reasons will support the strike. ’ ”
Although Martin examined all the reasons offered for striking the only juror at issue in that appeal and determined that all those reasons “were race neutral and that none was pretextual,” Martin, 62 So.3d at 1060, that additional analysis occurs immediately following the “general rule” stated above and is prefaced with the phrase “[e]ven so, ” indicating that even though this Court performed it, the analysis was not required. Rather, that additional analysis appears to have been done because it supported the ultimate conclusion that no Batson violation had occurred. Nowhere does Martin state that such an analysis of every reason is required in every case. In this regard, we note that this Court frequently performs additional analysis of issues beyond the bare minimum necessary to affirm or reverse a lower court's judgment. Such a practice simply makes good sense because it provides additional bases on which our decisions may be affirmed.
As to the dissenting opinion's suggestions that this Court's decision is inconsistent with McGahee v. Alabama Dep't of Corrections, 560 F.3d 1252 (11th Cir.2009), and that McGahee has declared the general rule stated in Martin to be “ ‘an unreasonable application of law under Batson, ’ ” those suggestions are incorrect. McGahee —which, as the dissenting opinion notes, is not binding on this Court—did not establish a blanket rule that the general principle outlined in Martin is an unreasonable application of law under Batson. Moreover, McGahee is distinguishable from this case.
The McGahee court emphasized that this Court's decision was an unreasonable application of Batson under the circumstances of that case, which included, most notably, two circumstances not present in Sharp's case: the prosecution in McGahee had removed all the black veniremembers, and the prosecution had stated as one of its reasons for striking a potential juror (Jones) that it “did not want to leave him individually”—which the Eleventh Circuit noted could “be read only to mean that the State did not want to leave Jones as the sole black juror on the panel.” 560 F.3d at 1264–65. Thus, McGahee held that “[t]he failure by the Court of Criminal Appeals to consider the State's articulation of an explicitly racial reason for striking Jones [was] an unreasonable application of Batson. ” 560 F.3d at 1264 (emphasis added).
The Eleventh Circuit also noted that this Court should have considered, under those circumstances, the prosecution's removal of “multiple African–American jurors because of their ‘low intelligence’ when the intelligence of the jurors was unsupported by any evidence in the record.” 560 F.3d at 1265. As our opinion demonstrates, however, we have considered the prosecution's “lack-of-sophistication” reason in our review of this case, but, under the circumstances, we do not find that the trial court clearly erred in denying Batson relief based on the other race-neutral reason or reasons the prosecution offered for striking the jurors in question.
Jurors no. 38, 47, 37, and 74
In the trial court, Sharp challenged the prosecution's striking Jurors no. 38, 47, 37, and 74 for allegedly lacking “sophistication.” Sharp pointed out that the State did not strike two Caucasian jurors who also appeared to lack “sophistication” or “intelligence” but who sat on Sharp's jury. The trial court, however, did not rely solely on the “lack-of-sophistication” reason in its order as to Jurors no. 38, 47, 37, and 74. Rather, as Martin permits, the trial court cited other race-neutral reasons the State offered for striking Jurors no. 38, 47, 37, and 74.
Our review of the record indicates that the two empaneled Caucasian jurors who Sharp claims lacked “sophistication” were not similarly situated to Juror no. 47, who is the only juror the trial court even initially indicated that the “lack-of-sophistication reasoning” was the basis for its finding that the prosecution's peremptory strike of that particular juror was race neutral.
Specifically, the prosecution explained (1) that Juror no. 38 appeared inattentive and failed to complete the jury questionnaire; (2) that Juror no. 47 appeared to be hostile and had a prior criminal conviction; (3) that Juror no. 37 expressed strong reservations about the death penalty and failed to complete the jury questionnaire; and (4) that Juror no. 74 had served on a prior jury that had returned a less-than-favorable verdict for the State and also had a relative who had been the victim of a violent crime.
Several Caucasian members of Sharp's jury failed to complete the jury questionnaires. As to Juror no. 38, however, the trial court made a finding that, after observing her during the voir dire process, it found her demeanor to be the primary race-neutral reason for the strike.
The trial court, which was in the best position to judge the demeanor of the veniremembers, entered findings in agreement with the reasons given by the State. Specifically, the trial court indicated (1) that it had observed Juror no. 38's demeanor and that Juror no. 38 was inattentive during the voir dire process; (2) that it had observed Juror no. 47's demeanor in a display of hostility by Juror no. 47; (3) that Juror no. 37 had indicated his inability to impose the death penalty; and (4) that Juror no. 74 had returned a verdict unfavorable to the State in a prior case. In addition, the fact that Juror no. 74's son had been a victim of a crime was also a valid basis for exercising a peremptory challenge to remove Juror no. 74. Accordingly, the trial court did not clearly err in its determination that the State did not engage in purposeful discrimination in striking Jurors no. 38, 47, 37, and 74.
Jurors no. 27 and 11
Sharp takes particular exception to the prosecution's strikes of potential Jurors no. 27 and 11 because, he says, the State struck these jurors because they lacked “sophistication.” The State also asserted, however, that it struck Juror no. 27 because she had been charged in Madison County with six counts of possession of marijuana and had been convicted on at least one of those counts; the State further asserted that the district attorney prosecuting Sharp's case had served exclusively as a prosecutor of drug cases during that time and likely prosecuted Juror no. 27's case. These are valid race-neutral reasons. See Brown v. State, 982 So.2d 565, 586 (Ala.Crim.App.2006) (holding that the prosecutor's reason for exercising peremptory strikes against three African–American veniremembers who had criminal convictions and who each had failed to respond when questioned as to whether they had any prior convictions, was race neutral for purposes of capital-murder defendant's Batson challenge); Gamble v. State, 791 So.2d 409, 424–25 (Ala.Crim.App.2000) (stating that the State's peremptory strike of a prospective juror who had been prosecuted by the same district attorney's office numerous times for writing worthless checks and for possession of marijuana did not result in a Batson violation). See also Carter v. State, 249 Ga.App. 354, 356, 548 S.E.2d 102, 105 (2001) (determining that under Batson the State offered a race-neutral explanation for exercising a peremptory strike against an African–American prospective juror where the juror failed to disclose a shoplifting conviction for which she had been prosecuted by the same district attorney prosecuting the defendant's case). Cf. Parker, 565 F.3d at 1271 (“Neither a prosecutor's mistaken belief about a juror nor failure to ask a voir dire question provides ‘clear and convincing’ evidence of pretext.”).
As to Juror no. 11, the State asserted that, “through its records,” it had noted that Juror no. 11 had also been convicted in Madison County of negotiating a worthless check, a crime of moral turpitude. This is a valid race-neutral reason. See Hall v. State, 816 So.2d 80 (Ala.Crim.App.1999) (having had “contact” with the bad-check unit of a prosecutor's office is a race-neutral reason for striking a juror); Siler v. State, 629 So.2d 33 (Ala.Crim.App.1993) (providing that a prospective juror was properly struck pursuant to the prosecutor's belief that the juror had been prosecuted for passing bad checks); Childers v. State, 607 So.2d 350 (Ala.Crim.App.1992) (concluding that a veniremember was properly struck where the prosecutor stated that he was currently in the process of prosecuting the veniremember in a bad-check case); Bryant v. State, 516 So.2d 938 (Ala.Crim.App.1987) (determining that a potential juror was properly struck by the prosecutor because the challenged juror had written bad checks).
Contrary to the assertion of the dissenting opinion, our opinion does not “assume[ ] that Jurors no. 27 and 11 actually had prior convictions.” 151 So.3d at 385. Our analysis points out that the State asserted that Jurors no. 27 and 11 had prior convictions.
The dissenting opinion notes that there is no evidence in the record to support the State's assertion that Jurors no. 27 and 11 had prior convictions and that “the trial court never made a finding of fact as to whether Jurors no. 27 and 11 actually had any prior convictions.” 151 So.3d at 385. Whether Jurors no. 27 and 11 actually had prior convictions, however, is not the question the trial court had to decide in the third step of the Batson analysis. Rather, the “decisive question” for the trial court was the credibility of the prosecutor's explanation that one of the reasons for striking Jurors no. 27 and 11 was their prior criminal histories. See Hernandez, 500 U.S. at 365 ; Dretke, 545 U.S. at 252 ; Cockrell, 537 U.S. at 338–39. Moreover, even if the prosecution had in fact been mistaken about its assertion that Jurors no. 27 and 11 had prior convictions, that would not necessarily mean that Sharp met his burden of proving purposeful discrimination. As the United States Court of Appeals for the Eleventh Circuit has stated: “Neither a prosecutor's mistaken belief about a juror nor failure to ask a voir dire question provides ‘clear and convincing’ evidence of pretext.” Parker, 565 F.3d at 1271. See also McNair v. Campbell, 416 F.3d 1291, 1311 (11th Cir.2005) (“Although the prosecutor's reason for striking [the juror] was based on a belief that ultimately proved incorrect, this does not establish by clear and convincing evidence that the state court's finding of fact was erroneous, and McNair presents no additional evidence to support his contention.”).
The dissenting opinion appears to rely heavily on the State's failure to respond in the trial court to Sharp's “point[ing] out in his written response the lack of support in the record for the assertion that Jurors no. 27 and 11 had prior convictions.” 151 So.3d at 386. Although the State did not introduce evidence indicating that Jurors no. 27 and 11 had actual convictions, it did make specific assertions that Jurors no. 27 and 11 had specific prior convictions. Sharp's “point[ing] out ... the lack of support in the record” was an argument offered in opposition to the credibility of the prosecutor's explanation that those jurors had prior convictions—but Sharp's argument is not evidence indicating that Jurors no. 27 and 11 actually did not have prior convictions. Sharp, who had the “ultimate burden of proving intentional discrimination,” Ex parte Branch, 526 So.2d at 624, had as much opportunity as the State to introduce evidence on the factual question whether Jurors no. 27 and 11 had actual prior convictions.
Finally, in support of the dissenting opinion's assertion that the State should have “at least repl[ied] to Sharp's argument, if not to [have] provide[d] evidence of the alleged prior convictions,” 151 So.3d at 386, the dissenting opinion cites Ex parte Thomas, 601 So.2d 56, 58 (Ala.1992). The Alabama Supreme Court in Ex parte Thomas, however, emphasized that the State in that case had exclusive access to the evidence that Thomas could have used to evaluate the credibility of the prosecution's stated reason for striking three of the potential jurors. The materials before us in the present case do not indicate that the State had exclusive access to records that would have indicated whether Jurors no. 27 and 11 had prior criminal records. Indeed, the State, in its rehearing application to this Court dated April 15, 2011, asserted that records verifying that Jurors no. 27 and 11 had prior criminal records are publicly available for inspection on alacourt.com, and the State provided instructions for finding those records. Sharp, although having multiple opportunities to respond to these assertions, has not disputed the State's assertion in that regard.
Sharp claims he showed disparate treatment in the State's striking of Jurors no. 27 and 11, African–Americans who had prior convictions and in its failure to strike Juror no. 24, a Caucasian who sat on Sharp's jury despite stating on his questionnaire that he had previously been convicted of assault. We disagree.
This Court has recognized that for disparate treatment to exist, the persons being compared must be “otherwise similarly situated.” Yancey, 813 So.2d at 7 (quotation omitted). In this case, Jurors no. 27 and 11 were not similarly situated to Juror no. 24. As noted, Juror no. 24, unlike Jurors no. 27 and 11, disclosed on his juror questionnaire that he had a prior conviction: an assault conviction in 2000 in Memphis, Tennessee. Jurors no. 27 and 11, however, did not disclose on their juror questionnaires that they had prior convictions. Juror no. 27 simply answered “no” to the question, and Juror no. 11 indicated only that her brother had been convicted of a crime. Our caselaw recognizes the fundamental importance of truthful responses from prospective jurors. See, e.g., Tomlin v. State, 695 So.2d 157, 169 (Ala.Crim.App.1996) (“ ‘It is fundamental to our system of impartial justice that “ ‘[p]arties have a right to have questions answered truthfully by prospective jurors to enable them to exercise their discretion wisely in exercising their peremptory strikes.’ ” ' ” (quoting State v. Freeman, 605 So.2d 1258, 1259 (Ala.Crim.App.1992), quoting in turn Ex parte O'Leary, 438 So.2d 1372, 1373 (Ala.1983), quoting in turn Ex parte O'Leary, 417 So.2d 232, 240 (Ala.1982) )). Not only did Jurors no. 27 and 11 fail to disclose that they had prior convictions (which had occurred in Madison County), they also failed to indicate on their juror questionnaires that they had previous involvement as criminal defendants with law enforcement in Madison County. Juror no. 24, however, disclosed on his questionnaire that his only involvement with law enforcement in Madison County was as a citizen—specifically, in his capacity as manager of a local department store. In light of the State's belief that Jurors no. 27 and 11 had prior convictions, the failure of Jurors no. 27 and 11 to disclose that they had prior convictions or any involvement with Madison County law enforcement renders them not “similarly situated” to Juror no. 24 for purposes of a disparate-treatment analysis.
The dissenting opinion states that “the State did not even mention the juror questionnaires when providing this reason for striking Jurors no. 27 and 11, much less indicate that it was striking Jurors no. 27 and 11 because they had allegedly not answered questions truthfully.” 151 So.3d at 384. Further, the dissenting opinion suggests that, in determining whether Jurors no. 27 and 11 were similarly situated to Juror no. 24, we are “ ‘imagin[ing] a reason’ ” to support the State's position. 151 So.3d at 385. As to Juror no. 27, however, the trial court cited her apparent failure to answer a question truthfully; the trial court made the following specific finding of fact: “In this case, the District Attorney also noted that he likely served as the prosecutor on the case but this juror never indicated that she recognized him ” (emphasis added). As to Juror no. 11, the trial court specifically found: “This prospective juror provided insufficient responses to the questions asked.”
Sharp also claims that the State failed to engage in meaningful voir dire with Jurors no. 27 and 11 about their prior undisclosed convictions. Although the State's failure to engage in meaningful voir dire may in some cases be “evidence that the explanation is a sham and a pretext for discrimination,” Hemphill v. State, 610 So.2d 413, 416 (Ala.Crim.App.1992), the trial court did not clearly err in its conclusion under the circumstances here.
Both the State and the defense had juror questionnaires during jury selection. One purpose for using juror questionnaires is to obtain specific information from each potential juror without having to take days to conduct oral voir dire and without duplication of questions. Once the State discovered that a discrepancy existed between the public records of conviction and the sworn responses provided by Jurors no. 27 and 11, it would have been apparent to the State that Jurors no. 27 and 11 had not been truthful in answering their juror questionnaires. For the State to have then questioned Jurors no. 27 and 11 about those prior convictions, which Jurors no. 27 and 11 had not disclosed even though they were matters of public record, likely would have embarrassed Jurors no. 27 and 11 in front of the other veniremembers. To so question and embarrass one member of the venire in front of other members of the venire would likely have had a chilling effect on the other jurors' freely answering voir dire questions. It could even have resulted in potential jurors becoming embittered toward the prosecutor for having embarrassed a fellow veniremember. Thus, because of the State's knowledge of the prior convictions and the failure of Jurors no. 27 and 11 to answer truthfully on the questionnaires, voir dire on this topic likely would not have been “meaningful.”
The dissenting opinion is correct in stating that the State could have questioned Jurors no. 27 and 11 individually regarding the alleged discrepancy in those jurors' responses to the written questionnaires and the State's belief that those jurors had prior convictions. Under the circumstances here, however, we do not think that the State's failure to question Jurors no. 27 and 11 individually about whether they had been untruthful in their written responses about prior convictions means that the trial court clearly erred in its determination that the State did not engage in purposeful discrimination with respect to its striking of Jurors no. 27 and 11.
As this Court noted in Brown v. State, 982 So.2d 565, 584–85 (Ala.Crim.App.2006) :
“ ‘ “A connection with or a founded suspicion of criminal activity can constitute a sufficiently race-neutral reason for the exercise of a preemptory strike. Stephens v. State, 580 So.2d 11 (Ala.Crim.App.1990), aff'd, 580 So.2d 26 (Ala.1991) ; Powell v. State, 548 So.2d 590 (Ala.Crim.App.1988), aff'd on other grounds, 548 So.2d 605 (Ala.1989) ; Lynn v. State, 543 So.2d 704 (Ala.Cr.App.1987), aff'd, 543 So.2d 709 (Ala.1988), cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989). This connection with or suspicion of criminal activity includes the juror in question, as well as close relatives and friends of the juror.Stephens; Allen v. State, 555 So.2d 1185 (Ala.Crim.App.1989) ; Lynn. ” ’
“Baker v. State, 906 So.2d 210, 255 (Ala.Crim.App.2001), rev'd on other grounds, 906 So.2d 277 (Ala.2004), quoting Heard v. State, 584 So.2d 556, 560 (Ala.Crim.App.1991). See also McGriff v. State, 908 So.2d 961, 981 (Ala.Crim.App.2000), rev'd on other grounds, 908 So.2d 1024 (Ala.2004) ( ‘Peremptory strikes based on the criminal record of a prospective juror do not violate Batson. Darby v. State, 601 So.2d 117 (Ala.Crim.App.1989).’).”
Accordingly, the trial court did not clearly err in determining that Sharp failed to demonstrate that the State's proffered reasons for striking Jurors no. 27 and 11—prior undisclosed convictions and prior prosecution by Madison County law enforcement—were pretextual or otherwise a sham. As noted above, “[i]t is well settled that ‘[a]s long as one reason given by the prosecutor for the strike of a potential juror is sufficiently race-neutral, a determination concerning any other reason given need not be made.’ ” Martin, 62 So.3d at 1059–60 (emphasis added; citations and quotation omitted). Further, “ ‘[w]here a prosecutor gives a reason which may be a pretext, ... but also gives valid additional grounds for the strike, the race-neutral reasons will support the strike. ’ ” Id. (emphasis added). Thus, Sharp is not entitled to relief on his Batson claim as to Jurors no. 27 and 11. Jurors no. 52, 39, 65, 55, and 64
Sharp also challenges the other reasons offered by the State for its strikes of Jurors no. 27 and 11. In light of our holding that those jurors' prior undisclosed convictions provided a legitimate, race-neutral reason for the State to strike them, we need not address Sharp's arguments regarding the other reasons the State gave for striking Jurors no. 27 and 11. Martin, supra.
Sharp also argued that the prosecution did not strike other Caucasian jurors who were similarly situated to African–American jurors who were struck. For example, Sharp cites Juror no. 52, an African–American male, and Juror no. 79, a Caucasian male, who were both studying to become ministers, and Juror no. 39, an African–American male who was involved in prison ministries. Although the State explained that Juror no. 52 was studying to become a minister, it also stated that Juror no. 52's brother had been murdered and that Juror no. 52 had witnessed the murder. The trial court found that Juror no. 52 privately revealed that she had been the victim of an “almost rape,” that she had a brother who had a criminal history, and that she had witnessed a murder. As to Juror no. 39, the prosecution articulated that he was a Seventh–Day Adventist involved in prison ministries, and the trial court found that his religious beliefs would have prevented him from “engag[ing] in any activities other than religious activities on Saturdays.” (RTR, R. 107.)
Three potential jurors indicated on their questionnaires that the religion they practiced generally prohibited working on Saturdays—Juror no. 11 and Juror no. 39 indicated that they were Seventh–Day Adventists, and Juror no. 52 indicated that she was a Sabbath Keeper. The State struck all three, although only one of those jurors, Juror no. 39, actually indicated, during individual voir dire, that his religious beliefs (as a Seventh–Day Adventist) would prohibit him from serving as a juror on Saturday.
Sharp also notes Juror no. 29, a Caucasian who served on Sharp's jury despite the following exchange during voir dire:
“THE COURT: All right. Number 29.... [Y]ou indicated that you have something on Saturday....
“[JUROR NO. 29]: Saturday afternoon, say after two o'clock, I need to set up some communion at church for Sunday service. I could do that later but I also have a play that my wife and I would go to Saturday evening. So, you know, I can get around that but that's my preference is to do those things.”
(R. 353–54.) Juror no. 29's reference to a “Sunday service”—and his statement that although his “preference [was] to do those things” (i.e., set up for communion at his church for the service on Sunday as well as go to a play on Saturday evening) he nevertheless could “get around that”—does not indicate that Juror no. 29's religion generally prohibited working on Saturdays. Thus, Juror no. 29 was not similarly situated to Jurors no. 11, 39, and 52.
Similarly, Sharp claims purposeful discrimination in the prosecution's striking of Juror no. 65. Juror no. 65, however, strongly expressed that he could not impose the death penalty. The Caucasian jurors who were empaneled did not express the same response, and the trial court indicated this was a valid reason based on its observation of Juror no. 65. The trial court, which was in the best position to judge the demeanor of the veniremembers, made specific findings regarding these jurors. The materials before us do not demonstrate that the trial court's determination was clearly erroneous.
Additionally, the prosecutor provided several reasons for striking Juror no. 55, and the trial court found that Juror no. 55: (1) wavered on the death penalty; (2) knew both defense counsel and the trial judge; (3) had a son who had been the victim of an attempted murder; and (4) worked as a social worker and had seen abuse during her employment. Although several Caucasian jurors who were empaneled indicated that either they or their relatives were victims of a crime, our review of the record indicates that none of the Caucasian jurors that Sharp claimed to be similar to Juror no. 55 opposed the death penalty or knew any of the parties involved in Sharp's case. We defer to the trial court's findings as to the “genuineness” of the prosecutor's proffered reasons, and there is no evidence indicative of an improper motive by the prosecutor in exercising the peremptory strike as to Juror no. 55.
Sharp also contends that the State engaged in purposeful discrimination in striking Juror no. 64. The trial court found that, after observing the demeanor of Juror no. 64, the State had not engaged in purposeful discrimination because, among other things, Juror no. 64 had previously served on a jury that had resulted in an unfavorable verdict. We do not see clear error in the trial court's rejection of Sharp's Batson claim as to Juror no. 64.
Finally, in accordance with Rule 45A, Ala. R.App. P., we have again searched the record for any error that may have adversely affected Sharp's substantial rights, and we have found none.
Conclusion
As noted above, the reasons given by the State at the second step of the Batson analysis were sufficient to rebut the prima facie showing of racial discrimination. After reviewing the transcript of voir dire, the juror questionnaires, the proceedings on remand, and the briefs filed with this Court in accordance with the Alabama Supreme Court's October 18, 2012, order, we conclude that the trial court did not clearly err in holding that Sharp failed to demonstrate that the State engaged in purposeful discrimination in violation of Batson. Indeed, the totality of the relevant facts supports the trial court's determination that the prosecutor's challenges were not based on race or ethnicity. See Snyder, 552 U.S. at 477. We therefore affirm the trial court's denial of Sharp's Batson claim.
APPLICATION FOR REHEARING GRANTED; OPINION OF MARCH 23, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
WINDOM, P.J., and BURKE, J., concur. JOINER, J., concurs specially. WELCH and KELLUM, JJ., dissent, with writing by KELLUM, J., which WELCH, J., joins.
JOINER, Judge, concurring specially.
I concur in the main opinion. Although I agree with the main opinion's conclusion that the law-of-the-case doctrine does not permit us to consider “the merits of the State's argument that [Jason Michael] Sharp's Batson [v. Kentucky, 476 U.S. 79 (1986),] claim is not properly before this Court,” 151 So.3d at 347 n. 2, I write separately to note that, were we writing on a blank slate, I would be inclined to agree with the State's position. This case, in my opinion, illustrates the need for the Alabama Supreme Court to authoritatively end the practice of using plain-error review to initiate a Batson claim on appeal.
In this regard, I fully agree with the views expressed by Justice Murdock in Part A of his special writing in Ex parte Floyd, [Ms. 1080107, Sept. 28, 2012] ––– So.3d ––––, –––– (Ala.2012), regarding plain-error review of Batson claims.
As Justice Murdock noted in his special writing,
“The Supreme Court's decision in Batson dealt with discrimination based on race; its decision in J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), dealt with discrimination based on gender. For simplicity, except where the context indicates otherwise, I use such terms as ‘Batson analysis,’ ‘Batson hearing,’ and ‘Batson inquiry’ to refer to the three-step analysis required by both Batson and J.E.B. ”
Ex parte Floyd, ––– So.3d at –––– n. 3 (Murdock, J., concurring in the result).
In his special writing in Floyd, Justice Murdock stated:
“The greatest concern I have arising from my review of this case is the notion that, as a general rule, Batson inquiries may be initiated on appeal for the first time under a ‘plain error’ standard. A sound case can be made that the three-step evidentiary inquiry prescribed by Batson as a tool for ferreting out purposeful discrimination was intended only for use in ‘real time’ during the trial in which the alleged discrimination occurs and that the right to initiate a Batson inquiry is waived if not exercised contemporaneously with the selection of the jury and cannot be revived based on a plain-error review in an appeal after the trial is concluded.”
Ex parte Floyd, ––– So.3d at –––– (Murdock, J., concurring in the result). In explaining his reason for this position, Justice Murdock noted first that he “[had] found no federal cases in which the court has used a ‘plain error’ review to initiate a Batson inquiry on appeal when the defendant failed to initiate that inquiry during the trial.” Id. He then cited several policy reasons in support of his conclusion, with which I also agree. Those policy reasons bear emphasizing here.
Justice Murdock cited several examples, however, of federal courts “appl[ying] a plain-error standard in cases where a defendant actually requested the trial court to conduct a Batson analysis but subsequently failed to register an objection to the trial court's decision based upon that analysis.” Ex parte Floyd, ––– So.3d at –––– n. 4 (Murdock, J., concurring in the result).
First is the reality that
“in most cases, the type of inquiry contemplated by Batson simply cannot be undertaken in any meaningful way months or years after the trial. Pretrial research regarding jurors and real-time notes taken during voir dire may have been lost, and, more importantly, unwritten memories and impressions of body language, voice inflections, and the myriad of other nuances that go into striking jurors likely will have faded, not only for counsel, but also for the judge who must evaluate the positions of both the defendant and the prosecutor in the context of his or her own observations at trial (and who, in some cases, will have even left the bench in the meantime).”
––– So.3d at ––––.
In the present case, this concern was not implicated to the extent it could be in other cases because, as the main opinion discusses, the trial court in fact remembered details such as the demeanor of particular veniremembers, and the prosecution was able to identify several reasons for its strikes of the individual jurors. Even so, as a former circuit judge I am aware of the near impossibility that a prosecutor or circuit judge—who has experienced hundreds of trials (possibly including many capital-murder trials) and interacted with thousands of jurors over a number of years—would remember the details surrounding the strikes of jurors for a trial that had concluded many months or even many years before. Thus, I share Justice Murdock's concern that the passage of time will often render a Batson inquiry impossible years after the fact.
Indeed, in this case, Sharp's trial concluded in August 2006. He did not raise a Batson issue until the filing of his petition for a writ of certiorari with the Alabama Supreme Court in May 2009, and the trial court did not conduct a Batson hearing until April 27, 2010—almost four years after Sharp's trial had concluded.
The second concern Justice Murdock identified is that
“without a general rule requiring the initiation of a Batson challenge at trial, counsel for a defendant charged with a capital offense might decide—and logically so—to take a ‘shot’ at getting a favorable verdict from a jury about which he or she has some doubts, secure in the knowledge that he or she can always raise a Batson objection on appeal and get a second ‘shot’ if things do not work out with the first jury. See generally, e.g., United States v. Pielago, 135 F.3d 703, 709 (11th Cir.1998) (‘The contemporaneous objection rule fosters finality of judgment and deters “sandbagging,” saving an issue for appeal in hope of having another shot at trial if the first one misses.’); United States v. Brown, 352 F.3d 654, 666 n. 12 (2d Cir.2003) (‘[W]e do not want to encourage lawyers to “test [their] fortunes with the first jury,” while knowing there will be a “second round in the event of a conviction.” McCrory [v. Henderson ], 82 F.3d [1243,] at 1247 [ (2d Cir.1996) ].’).”
Id.
This case squarely implicates Justice Murdock's second policy concern. I was not a member of this Court when it first considered Sharp's direct appeal in 2008—the same appeal that has yet to be finally resolved in 2013—but I note that Sharp's initial brief to this Court in 2008 listed only five issues for appellate review and included a total of slightly more than 20 pages of argument. In that brief, Sharp gave no indication that he thought a Batson violation had occurred. In the Alabama Supreme Court, however, Sharp—still represented by the same counsel who had represented him in this Court—filed a 94–page petition for a writ of certiorari seeking review on 29 separate issues. Although Sharp did not think the alleged Batson violation was plain enough to raise in the trial court or in this Court, it was the first issue he presented to the Alabama Supreme Court. That tactic—if indeed it was a tactic —essentially bypassed this Court on its initial consideration of this appeal (a process that took more than a year) and has extended by years the review of Sharp's case.
In commenting on this matter, I in no way intend to disparage Sharp's appellate counsel; even if counsel consciously decided to attempt to bypass this Court by not raising plain-error issues until the case reached the Alabama Supreme Court, our caselaw and the Alabama Rules of Appellate Procedure do not prohibit such a tactic. Moreover, as a general matter, a defendant under a death sentence who seeks federal review of a claim must first seek State review of that claim. No appellate counsel can offer perfect representation—in some cases, counsel may obtain new insight between the time this Court considers and the Alabama Supreme Court considers an appeal in which the death penalty has been imposed; in such a case, the raising of additional issues not presented to this Court could be justified.
Even so, I think the instant case illustrates the need for changes to the Alabama Rules of Appellate Procedure as well as to our caselaw regarding plain-error review. If Justice Murdock's position in Ex parte Floyd were the law—i.e., if plain-error review could not be utilized to initiate a Batson claim on direct appeal—the time it has taken to consider Sharp's appeal would have been substantially shortened. In addition to adopting Justice Murdock's position in Ex parte Floyd, however, I think the Alabama Supreme Court should consider revising the Rules of Appellate Procedure—including, for example, Rule 39, Ala. R.App. P., which governs certiorari review of capital cases—to generally preclude a petitioner from seeking plain-error review of any issue not first raised on appeal to this Court.
The Supreme Court's opinion requiring a remand for a Batson hearing was issued on December 4, 2009. The circuit court conducted the hearing on April 27, 2010, and the case was resubmitted to this Court on July 20, 2010. Sharp filed a brief on return to remand on August 6, 2010. The State then moved to strike the brief because the Alabama Rules of Appellate Procedure do not provide for the filing, as of right, of a brief on return to remand and Sharp had not sought leave to file his brief. Although Sharp subsequently moved for leave to file the brief he had already submitted, this Court—presumably exercising its discretionary authority to disallow additional briefing not permitted as of right by the Rules of Appellate Procedure—granted the State's motion to strike Sharp's brief.
On February 25, 2011, this Court issued an opinion reversing and remanding the trial court's Batson order; on March 23, 2012, however, this Court withdrew that opinion on application for rehearing and issued a new opinion affirming the trial court's order. The Alabama Supreme Court, as the main opinion notes, summarily vacated our March 23, 2012, opinion and ordered us to allow the parties to brief any issues arising from the Batson order. That briefing was completed on December 17, 2012.
The third policy concern that Justice Murdock identified
“is the fact that the failure of the trial court to initiate a Batson inquiry simply is not an ‘error, ’ plain or otherwise, by the trial court. ‘Error’ (that in turn might be deemed ‘plain error’ in an appropriate case) contemplates a mistake by the court. Specifically, it necessitates a decision by the court that deviates from a legal rule.
“ ‘The first limitation on appellate authority under [the federal plain-error rule] is that there indeed be an “error.” Deviation from a legal rule is “error” unless the rule has been waived. For example, a defendant who knowingly and voluntarily pleads guilty in conformity with the requirements of Rule 11[, Fed.R.Crim.P.,] cannot have his conviction vacated by court of appeals on the grounds that he ought to have had a trial. Because the right to trial is waivable, and because the defendant who enters a valid guilty plea waives that right, his conviction without a trial is not “error.” ’
“United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
“The decision whether to take advantage of the right to generate evidence for consideration by the trial court pursuant to the Batson procedure is a decision for the defendant, not for the trial court. It is a voluntary decision as to whether to invoke a procedural device that has been made available to defendants in the trial context. In this respect, it is not unlike a request for a jury trial itself or a request that the trial judge poll the jurors after a verdict is rendered, or even more analogous, a failure to conduct voir dire of a prospective juror. Not requesting it may be a strategic ‘mistake’ by defense counsel, but counsel's mistake is not the trial court's ‘error.’
“The lack of a request by defense counsel for a Batson review might well occur in the context of circumstances more than sufficient to create an inference of discrimination by the prosecution, yet the law allows for the possibility that defense counsel might have reasons for believing that a particular juror or the jury as a whole is acceptable or even that the jury as selected might be more favorable to his or her client than some entirely new jury chosen from an unknown venire. The fact that counsel intentionally or by oversight fails to use all the procedural devices available to him or her in the trial context does not somehow translate into some sort of error, plain or otherwise, on the part of the trial court.
“Put differently, the mere existence of the condition that warrants the initiation of a Batson inquiry—a prima facie case of purposeful discrimination—is not the condition that constitutes a reversible error. No criminal conviction has ever been discarded merely because this first step is satisfied, i.e., merely because an inference of discrimination can reasonably be drawn from the circumstances presented; actual, purposeful discrimination must exist. This first step and, indeed, the entirety of ‘the three-step Batson inquiry’ has been described as merely ‘a tool for producing the evidence necessary to the difficult task of “ferreting out discrimination in selections discretionary by nature.” ’ United States v. Guerrero, 595 F.3d 1059, 1064 (9th Cir.2010) (Gould, J., dissenting) (emphasis added); see also United States v. McAllister, 491 Fed.Appx. 569 (6th Cir.2012) (to same effect) (not published in the Federal Reporter). As this Court has said, a Batson review ‘shall not be restricted by the mutable and often overlapping boundaries inherent within a Batson -analysis framework, but, rather, shall focus solely upon the “propriety of the ultimate finding of discrimination vel non. ” ’ Huntley v. State, 627 So.2d 1013, 1016 (Ala.1992) (emphasis added).
“Thus, the ‘error’ that must exist to warrant disturbing the prosecutor's peremptory strikes is actual, purposeful discrimination in the selection of the jury. It is this actual, purposeful discrimination then, rather than merely a prima facie case for such discrimination, that must be ‘plain’ in the trial-court record if we are to provide a defendant who fails to object timely to a prosecutor's strikes relief from those strikes on a posttrial basis.”
Ex parte Floyd, ––– So.3d at –––– (Murdock, J., concurring in the result).
As Justice Murdock noted, there may be valid reasons for defense counsel's not raising a Batson objection at trial. The use of plain-error review to initiate a Batson inquiry, however, places a trial judge in the precarious position of questioning, in real-time, the trial strategy of defense counsel who fails to initiate such an inquiry. Like Justice Murdock, I question the wisdom of requiring the trial judge to essentially second-guess the defense counsel's strategy on this issue.
This is often the same counsel whom the trial judge has appointed to represent the defendant because the judge has confidence that this particular counsel possesses the requisite legal skills, courtroom abilities, and strategic acumen necessary to defend an accused in a capital case.
KELLUM, Judge, dissenting.
I must dissent from the majority's holding that the trial court did not err in denying Sharp's motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After thoroughly reviewing the record, I have no choice but to conclude that all the reasons given by the State for striking Jurors no. 27 and 11 were pretextual and thus improper under Batson.
As the majority recognizes, in evaluating a Batson 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, 328–29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) :
“First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. [Batson, ] 476 U.S., at 96–97. Second, if that showing has been made, the prosecution must offer a race-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.”
In this case, the majority correctly concludes that Sharp satisfied the first step of the process—establishing a prima facie case of discrimination. The Supreme Court held that the record in this case raised an inference of discrimination. Ex parte Sharp, 151 So.3d 329 (Ala.2009). The majority also correctly concludes that the State satisfied the second step of the process—providing facially race-neutral reasons for its strikes. As the majority notes, all the reasons given by the State for its strikes of African–American jurors were based on something other than the juror's race, and both this Court and the Alabama Supreme Court have specifically recognized as race neutral the various reasons asserted by the State here.
It is with the majority's conclusion that Sharp failed to satisfy his burden under the third step of the process—establishing purposeful discrimination—that I must disagree. In the third step of the Batson process, the burden is on the defendant to establish that the State's asserted reasons for its strikes were pretextual and, thus, discriminatory.
“Once the prosecutor has articulated a nondiscriminatory reason for challenging the black jurors, the other side can offer evidence showing that the reasons or explanations are merely a sham or pretext. [People v. ] Wheeler, 22 Cal.3d [258] at 282, 583 P.2d [748] at 763–64, 148 Cal.Rptr. [890] at 906 [ (1978) ]. Other than reasons that are obviously contrived, the following are illustrative of the types of evidence that can be used to show sham or pretext:
“1. The reasons given are not related to the facts of the case.
“2. There was a lack of questioning to the challenged juror, or a lack of meaningful questions.
“3. Disparate treatment—persons with the same or similar characteristics as the challenged juror were not struck....
“4. Disparate examination of members of the venire; e.g., a question designed to provoke a certain response that is likely to disqualify the juror was asked to black jurors, but not to white jurors....
“5. The prosecutor, having 6 peremptory challenges, used 2 to remove the only 2 blacks remaining on the venire....
“6. ‘An explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.’ Slappy [v. State ], 503 So.2d [350] at 355 [ (Fla.Dist.Ct.App.1987) ]. For instance, an assumption that teachers as a class are too liberal, without any specific questions having been directed to the panel or the individual juror showing the potentially liberal nature of the challenged juror.”
Ex parte Branch, 526 So.2d 609, 624 (Ala.1987). “ ‘The explanation offered for striking each black juror must be evaluated in light of the explanations offered for the prosecutor's other peremptory strikes, and as well, in light of the strength of the prima facie case.’ ” Ex parte Bird, 594 So.2d 676, 683 (Ala.1991) (quoting Gamble v. State, 257 Ga. 325, 327, 357 S.E.2d 792, 795 (1987) ). In other words, all relevant circumstances must be considered in determining whether purposeful discrimination has been shown. See, e.g., Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (“[I]n reviewing a ruling claimed to be a Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.”).
Although the majority cites Ex parte Bird, supra, and Snyder, supra, for the proposition that all relevant circumstances, including the other reasons proffered by the State for its strikes, must be considered in determining whether any one reason proffered by the State is pretextual or non-pretextual, the majority does not follow that law in determining that the State's strikes against Jurors 27 and 11 are non-pretextual. Rather, the majority, relying on Martin v. State, 62 So.3d 1050 (Ala.Crim.App.2010), an opinion I authored, and the cases cited therein, rejects Sharp's argument that all relevant circumstances must be considered.
In Martin, writing for the Court, I explained the general rule in Alabama as follows:
“It is well settled that ‘[a]s long as one reason given by the prosecutor for the strike of a potential juror is sufficiently race-neutral, a determination concerning any other reason given need not be made.’Johnson v. State, 648 So.2d 629, 632 (Ala.Crim.App.1994). See also Jackson v. State, 791 So.2d 979, 1009 n. 6 (Ala.Crim.App.2000) ; Brown v. State, 705 So.2d 871, 874 (Ala.Crim.App.1997) ; and Wood v. State, 715 So.2d 812, 816 (Ala.Crim.App.1996), aff'd, 715 So.2d 819 (Ala.1998). ‘Where a prosecutor gives a reason which may be a pretext, ... but also gives valid additional grounds for the strike, the race-neutral reasons will support the strike.’ Battle v. State, 574 So.2d 943, 949 (Ala.Crim.App.1990).”
Martin, 62 So.3d at 1059–60. In other words, the general rule is that once a court determines that one specific reason proffered by the State for a challenged peremptory strike is both race neutral and non-pretextual, it is unnecessary for the court to make a determination as to whether any of the other reasons proffered by the State for that strike are also race neutral and non-pretextual. However, it is in making the determination whether that one specific reason proffered by the State is pretextual or non-pretextual that a court is required to consider all relevant circumstances, including the other reasons proffered by the State for that particular strike and the reasons proffered by the State for its other strikes. Neither Martin nor the general rule as cited in Martin say otherwise. Thus, in determining whether any one reason proffered by the State for its strikes of Jurors no. 27 and 11 is pretextual or non-pretextual, I consider, as I did in Martin, all the relevant circumstances, including the other reasons proffered by the State for those strikes and the reasons proffered by the State for its other strikes.
I note that the United States Court of Appeals for the Eleventh Circuit has expressly rejected Alabama's general rule as being “an unreasonable application of law under Batson. ” McGahee v. Alabama Dep't of Corrections, 560 F.3d 1252, 1264 (11th Cir.2009). However, this Court is not bound by the decisions of the Eleventh Circuit. See, e.g., Ex parte Hale, 6 So.3d 452, 458 n. 5 (Ala.2008).
“Under Alabama law, the trial judge must ‘evaluat[e] the evidence and explanations presented’ and ‘determine whether the explanations are sufficient to overcome the presumption of bias.’ Branch, 526 So.2d at 624. ‘The trial judge cannot merely accept the specific reasons given ... at face value; the judge must consider whether the facially neutral explanations are contrived to avoid admitting the acts of group discrimination.’ Id. ”
Smith v. Jackson, 770 So.2d 1068, 1072–73 (Ala.2000) (emphasis added). “[T]he proponent's explanations—even if facially neutral—are not viewed by the judiciary with credulous naivete. ” Ex parte Bruner, 681 So.2d 173, 179 (Ala.1996) (Cook, J., concurring specially). “[T]he critical question in determining whether a [defendant] has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for his peremptory strike. At this stage, ‘implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.’ ” Cockrell, 537 U.S. at 339 (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) ).
As the majority correctly observes, because “ ‘[t]he trial court is in a better position than the appellate court to distinguish bona fide reasons from sham excuses,’ ” Harris v. State, 2 So.3d 880, 899 (Ala.Crim.App.2007) (quoting Heard v. State, 584 So.2d 556, 561 (Ala.Crim.App.1991) ), an appellate court must give deference to a trial court's findings and “ ‘reverse the circuit court's ruling on the Batson motion only if it is “clearly erroneous.” ’ ” Johnson, 43 So.3d at 12 (quoting Cooper v. State, 611 So.2d 460, 463 (Ala.Crim.App.1992), quoting in turn Jackson v. State, 549 So.2d 616, 619 (Ala.Crim.App.1989) ). However, contrary to the belief expressed by the majority, “[d]eference does not by definition preclude relief.”Cockrell, 537 U.S. at 340. Rather, “ ‘ “[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.” ’ ” Fletcher v. State, 703 So.2d 432, 436 (Ala.Crim.App.1997) (quoting Davis v. State, 555 So.2d 309, 312 (Ala.Crim.App.1989), quoting in turn Powell v. State, 548 So.2d 590, 594 (Ala.Crim.App.1988), aff'd, 548 So.2d 605 (Ala.1989) ). In this case, I am left with a definite and firm conviction that a mistake has been made with respect to Jurors no. 27 and 11.
As the majority notes, after challenges for cause, there were 71 jurors on the venire, of which 14, or approximately 20 percent, were African–American. The prosecutor struck 11, or approximately 79 percent, of those eligible African–American jurors. The defense struck two African–American jurors, and only one African–American juror sat on Sharp's jury. “Happenstance is unlikely to produce this disparity.” Cockrell, 537 U.S. at 342. In its opinion, the Alabama Supreme Court found—under the stringent plain-error standard of review —that the record indicated that some African–American jurors who were struck provided responses to questions similar to the responses of Caucasian jurors who were not struck and that the record indicated that the African–American jurors who were struck shared the characteristic of race but were otherwise heterogenous. Under these circumstances, the prima facie case of discrimination is strong, and I must consider the reasons for striking Jurors no. 27 and 11 in light of that strong prima facie case.
“ ‘ “[T]he 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.’ ” ' ” Ex parte Billups, 86 So.3d 1079, 1083 (Ala.2010) (quoting Ex parte Brown, 11 So.3d 933, 935–36 (Ala.2008), quoting in turn Hall v. State, 820 So.2d 113, 121–22 (Ala.Crim.App.1999) ).
On remand, the State proffered three reasons for striking Juror no. 27, set out in the order in which the State proffered the reasons: (1) her employment as a packer on an assembly line at a Target Distribution Center and her previous employment at a Burger King fast-food restaurant indicated that she lacked “sophistication”; (2) on question 79 on the juror questionnaire, asking, “If you've heard anything in the media regarding this case, do you feel you could still be fair and impartial?” she circled “no”; and (3) she had been charged in Madison County with six counts of possession of marijuana in the second degree and “[i]t appeared” to the State that she had been convicted of one of those counts in 1990, a time when the prosecutor had been exclusively a drug prosecutor for the district attorney's office. The State proffered the following reasons for striking Juror no. 11, also set out in the order in which the State proffered them: (1) she was a Seventh Day Adventist; (2) she was then unemployed, had no employment history over the last 10 years, and indicated on the juror questionnaire that she did not know her ex-husband's place of employment; (3) she did not answer question 79 on the juror questionnaire and did not “fully” answer question 74; and (4) she had a prior conviction for issuing a worthless check. I first address those reasons the State proffered for striking both Juror no. 27 and Juror no. 11—“lack of sophistication,” alleged prior convictions, and answers or lack thereof on the juror questionnaires—and then turn to the remaining reason the State proffered for striking Juror no. 11—that she was a Seventh Day Adventist.
I.
The State proffered as its “first and foremost” reason for striking Juror no. 27 that she lacked “sophistication” because she worked as a packer and proffered as a reason for striking Juror no. 11 that she was unemployed and lacked knowledge of her ex-husband's employment. The State first used “lack of sophistication” as a reason for its strike against Juror no. 37, the second African–American it struck, who was a custodian. In doing so, the State explained: “[T]he Court is well aware that this was a circumstantial case that really the thrust of the State's evidence was DNA evidence, as the Court knows is somewhat sophisticated and technical evidence. So his sophistication socially or professionally was noted by the State.” The State noted later that “with respect to professional or social sophistication ... one of the main concerns of the State in this case [was] to, in fact, get a jury that could comprehend DNA evidence.” Thus, it appears that the State was using the term “sophistication” as a synonym for “intelligence” and that it believed that Juror no. 27 was not sufficiently intelligent to understand DNA evidence. In addition, although the State did not specifically assert that Juror no. 11 lacked “sophistication” as it did with Juror no. 27, it is clear that the State's reasoning was the same for both jurors. The State referred to Juror no. 11's unemployment and her lack of knowledge of her ex-husband's employment “in light of the evidence we were presenting,” thus showing that it also believed Juror no. 11 was not sufficiently intelligent to understand DNA evidence.
The majority dismisses the State's heavy reliance on “lack of sophistication” as a reason for striking several potential jurors largely because, it concludes, the trial court did not rely solely on that proffered reason in determining whether there was purposeful discrimination, but instead “cited other race-neutral reasons the State offered for striking” several jurors. 151 So.3d at 365. Although I do not necessarily agree with the majority's interpretation of the trial court's order, even assuming that interpretation to be correct, the trial court's, and now the majority's, failure to consider the State's heavy reliance on lack of intelligence as a reason for striking several African–American jurors ignores the settled law, as explained above, that all relevant circumstances bearing on the issue of racial animosity, including the State's proffered reasons for its other strikes, must be considered when reviewing a trial court's ruling on a Batson motion. See Snyder v. Louisiana, 552 U.S. at 478, and Ex parte Bird, 594 So.2d at 683.
Although, as noted above, low intelligence is a facially race-neutral reason for a peremptory strike, it is nonetheless a suspect reason because of the inherent susceptibility of abuse. See McGahee v. Alabama Dep't of Corr., 560 F.3d 1252, 1265 (11th Cir.2009) (“[T]he State's claim that several African–Americans were of ‘low intelligence’ is a particularly suspicious explanation given the role that the claim of ‘low intelligence’ has played in the history of racial discrimination from juries.”). In this case, the reason is even more suspect because it is unsupported by the record and is based solely on a group bias. Indeed, the trial court found this reason to be suspect with respect to Jurors no. 37, 39, 52, 11, 38, and 74, noting at various points in its order that the record did not support the State's conclusion that some of these jurors lacked the intelligence necessary to understand DNA evidence and that a person's employment status alone is not sufficient to establish a lack of intelligence. Although the trial court did find this reason to be supported by the record with respect to Jurors no. 27 and 47, that finding by the trial court is itself unsupported by the record.
With respect to Juror no. 27, the trial court found the lack-of-intelligence reason to be race neutral and supported by the record “[b]ased on the court's observations and the responses given on this case.” (RTR, C. 108.) However, my review of the proceedings reflects that the only “responses” Juror no. 27 gave during voir dire were her name, occupation, and marital status, all of which she supplied during roll call. She answered no questions during general voir dire of the entire venire, nor was she questioned during individual voir dire. It is difficult to fathom how a simple statement as to one's name, occupation, and marital status could establish a lack of intelligence. Also, as Judge Joiner, a former circuit judge himself, notes in his special concurrence, it is a “near impossibility that a prosecutor or circuit judge—who has experienced hundreds of trials (possibly including many capital-murder trials) and interacted with thousands of jurors over a number of years—would remember the details surrounding the strikes of jurors for a trial that had concluded many months or even many years before.” 151 So.3d at 372 (Joiner, J., concurring specially). In addition, I fail to see any connection between a person's exterior appearance and demeanor—which the trial court observed—and that person's intellectual level. Thus, contrary to the trial court's finding, with respect to Juror no. 27, the lack-of-intelligence reason proffered by the State is wholly unsupported by the record.
With respect to Juror no. 47, the trial court also noted that it had observed this juror and her demeanor and that “lack of sophistication of a prospective juror when faced with technical expert evidence in a case has been held to constitute a race-neutral reason for the use of a peremptory challenge.” (RTR, C. 110.) However, other than stating during roll call her name, occupation, and marital status, Juror no. 47 answered only two questions during general voir dire, one of which required Juror no. 47 simply to raise her hand and to state her assigned juror number. Although Juror no. 47 was questioned during individual voir dire, she was asked only five questions. Again, it is difficult for me to fathom how a person's intellectual level could be ascertained after only a few sentences. Thus, contrary to the trial court's finding, with respect to Juror no. 47, the lack-of-intelligence reason proffered by the State is also unsupported by the record.
In addition, the State's sole basis for concluding that Jurors no. 27 and 11 would not be able to understand DNA evidence was those jurors' employment—Juror no. 27 was a packer and Juror no. 11 was then unemployed and had no knowledge of her ex-husband's employment. However, as the trial court found in its order, the nature of a person's employment or the lack of employment, by itself, is not sufficient to establish a lack of intelligence. Nor is there any logical connection between a person's lack of knowledge of an ex-spouse's employment and that person's ability to understand DNA evidence. Yet the prosecutor made no attempt in this case to question these jurors (or any of the jurors on the venire, for that matter) regarding their intelligence level or their ability to understand DNA evidence. “[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.” Ex parte Bird, 594 So.2d at 683. Rather, the prosecutor merely assumed that Jurors no. 27 and 11 would not be able to understand DNA evidence because Juror no. 27 was employed in a manual-labor or blue-collar job and Juror no. 11 was unemployed and had no knowledge of her ex-husband's employment. Therefore, this reason for striking Jurors no. 27 and 11 was clearly based on a group bias against blue-collar workers and the unemployed where the trait of concern—intelligence—was not shown to apply to these two particular jurors. Although certainly not conclusive, group bias is evidence that the reason for a strike is a sham or pretext for discrimination.
I also note that the State appeared to use this “lack-of-sophistication” reason not merely for Jurors no. 27 and 11, but for a total of 8 of its 11 strikes of African–American jurors—as noted previously, Jurors no. 37, 39, 52, 27, 11, 38, 47, and 74, were all struck, in part, because of an alleged lack of “sophistication.” In other words, 72 percent of the State's strikes against African–American jurors were based, at least in part, on those jurors' supposed lack of intelligence. This is a troubling statistic in light of the historically suspect nature of this reason. Equally troubling is the fact that the record does not support any of the State's strikes for this reason. As with Jurors no. 27 and 11, the State's supposed belief that Jurors 37, 39, 52, 38, 47, and 74 lacked sufficient intelligence to understand DNA evidence was also based primarily on those jurors' employment—Juror no. 37 was a custodian, Juror no. 39 was unemployed, Juror no. 52 drove a forklift, Juror no. 38 was a rental-car agent, Juror no. 47 was a cafeteria manager, and Juror no. 74 was a secretary. With respect to these six jurors, the State made the same unsupported group-based assumption it made with Jurors no. 27 and 11—that those jurors who were unemployed or who worked manual-labor or blue-collar jobs were not sufficiently intelligent to understand DNA evidence—without questioning any of them regarding their intelligence level or their ability to understand DNA evidence.
With respect to Juror no. 38, the State relied not only on employment but also on a misspelled word on the juror questionnaire to conclude that she lacked intelligence. However, as the trial court found in its order, the fact that a juror misspelled a single word on a juror questionnaire fails to establish lack of intelligence, especially in light of the fact that Juror no. 38 stated on her juror questionnaire that she had attended college and had received a bachelor's degree. In addition, my review of the juror questionnaires reveals that Caucasian jurors who were not struck by the State also misspelled one or more words on their juror questionnaires. Specifically, Juror no. 5 misspelled “police,” Juror no. 24 misspelled “channel,” and Juror no. 33 misspelled “chamber” and “robbery,” but they all sat on Sharp's jury.
Despite these circumstances, the trial court found this reason to be race neutral with respect to Juror no. 38 “when coupled with her employment history and her demeanor.” (C. 110.) However, as explained above, I fail to see the connection between a person's external appearance and demeanor and that person's intelligence level. In addition, this finding by the trial court is quite troubling given (1) the lack of support for it in the record, and (2) the trial court's own questioning of this reason during the hearing on remand. The State's assertion that Juror no. 38 had a “checkered” employment history and had worked for only 7 months in the last 10 years is directly refuted by the record. On her juror questionnaire, Juror no. 38 stated, on the first page of the questionnaire, that she had retired from the Department of Defense as a program analyst in 2003, approximately three years before Sharp's trial. At the hearing on remand, the trial court, evidently concerned about the validity of this proffered reason, specifically asked the State if it was aware that Juror no. 38 was a retiree, and the State indicated that it was not, despite the fact that Juror no. 38 clearly indicated her retired status on the first page of the juror questionnaire.
Further, the record discloses disparate treatment by the State with regard to its “lack-of-sophistication” reason for striking jurors. Although the State struck 8 African–Americans based on “lack of sophistication,” either because they were unemployed or were employed in manual-labor or blue-collar jobs, the State did not strike Juror no. 43, a Caucasian who indicated on her juror questionnaire that she was a housewife and had been unemployed for the last 10 years. See, e.g., Carter v. State, 603 So.2d 1137 (Ala.Crim.App.1992). The State attempted to justify this disparate treatment at the hearing on remand, explaining that it did not strike Juror no. 43 because her husband had once testified as an expert witness and her two adult children were “educated,” a conclusion apparently based on Juror no. 43's answer on the juror questionnaire that her son was an engineer and her daughter was a teacher. However, the fact that Juror no. 43 was married to someone who had once been an expert witness and that she had two adult children who were “educated” in no way shows the intellectual level of Juror no. 43 or the ability of Juror no. 43 to understand DNA evidence.
I recognize that disparate treatment evident in the record may, in some circumstances, be overcome by a sufficient explanation by the State. For example, as the Alabama Supreme Court explained in Ex parte Brown, 686 So.2d 409 (Ala.1996) :
“A prosecutor can strike based on a mistaken belief, see Taylor v. State, 666 So.2d 36, 42 (Ala.Cr.App.1994) ; therefore, it is logical that a prosecutor may also decide, based on a mistaken belief, not to strike a veniremember. Because the discrepancy in the way these two jurors were treated was adequately explained, we conclude that the strike of Juror 19 was race-neutral.”
686 So.2d at 420. In this case, however, I believe the State's explanation for not striking Juror no. 43 was insufficient to dispel the disparate treatment here. Indeed, the State's proffered explanation of the disparate treatment is, itself, support for the conclusion that there was disparate treatment. Despite its reliance on the education level of Juror no. 43's adult children to conclude that she was sufficiently intelligent to understand DNA evidence, the State struck Jurors no. 47 and 74, both African–Americans, in part, because they were not sufficiently intelligent even though both had at least one adult child who was “educated”—Juror no. 47 had a daughter who was a nurse and Juror no. 74 had a son employed in information technology.
Finally, although at the hearing on remand the State asserted that it was concerned with seating jurors who were sufficiently intelligent to understand the complex and technical DNA evidence that was to be presented at Sharp's trial, the record of voir dire belies this assertion. During voir dire, the State questioned the venire about DNA evidence as follows:
“Now what we have here is forensic science, real life forensic science that you'll be confronted with, and specifically it is DNA evidence. You'll hear some cutting edge technology on DNA evidence that was recovered at the scene. And you are not expected to be a scientist or to become a scientist if you're chosen on this jury. And I'm not saying DNA is impossible to understand, because obviously if I understand it and [the other prosecutor] can understand it and these gentlemen [defense attorneys] can understand it, then, you know, you don't have to be super smart to understand it. But what I want to ask you is, is there anybody here who thinks the nature of that testimony, and by the nature I mean it's scientific, do you think that it would be difficult for you to be a juror in that, not because you're not smart enough, I'm not asking you that, but because it's just something that would bore you to tears and you don't think—you don't think you could pay attention to it, to that kind of testimony?”
(R. 243; emphasis added.) Contrary to the State's contention at the hearing on remand, the State was not concerned, at the time it questioned and struck the jury, with the ability of the potential jurors to understand the DNA evidence to be presented because “you don't have to be super smart to understand it.”
For these reasons, I must conclude that the State's proffered reason—that Jurors no. 27 and 11 were not sufficiently “sophisticated” to understand DNA evidence—is pretextual.
II.
The State also proffered as a reason for striking both Juror no. 27 and Juror no. 11 that each may have had a prior conviction, specifically that “[i]t appeared” that Juror no. 27 had a prior conviction for possession of marijuana at a time when the prosecutor had been working exclusively on drug-related cases and that Juror no. 11 had a prior conviction for issuing a worthless check. However, on the juror questionnaires, potential jurors were asked whether they, or any relative or close friend, had ever been accused of a crime and what the outcome, if any, of that accusation was. Juror no. 27 stated “no” in answer to the question, and Juror no. 11 indicated that her brother had previously been accused and convicted of a crime, but she did not list herself as having ever been accused of a crime. The State never questioned these jurors about their criminal history or about the alleged discrepancy between its alleged records of the prior convictions (to which the State referred at the hearing on remand but which are not included in the record before this Court) and the jurors' responses on the questionnaire. As noted above, “the 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.” Hemphill v. State, 610 So.2d 413, 416 (Ala.Crim.App.1992).
The prosecutor, however, did not affirmatively state whether he had actually prosecuted Juror no. 27.
Instead of considering the lack of questioning here as evidence of discrimination, however, the majority excuses the State's failure to question these jurors about their alleged prior convictions because, it rationalizes, such questioning would have “embarrassed Jurors no. 27 and 11 in front of the other veniremembers” and “would likely have had a chilling effect on the other jurors' freely answering voir dire questions,” and because “[i]t could even have resulted in potential jurors becoming embittered toward the prosecutor for having embarrassed a fellow veniremember.” 151 So.3d at 369. However, the majority's rationale fails in the face of the record before this Court. The record reflects that the venire was initially questioned as a whole, but that potential jurors were given the option of speaking to the parties and the court in private instead of in front of the entire venire. The parties were also specifically given the opportunity to question any member of the venire individually, outside the presence of the other potential jurors, about anything they wished. A number of potential jurors voluntarily approached to speak with the parties and court in private, and several additional jurors were questioned individually at the request of the parties. However, neither Juror no. 27 nor Juror no. 11 were questioned individually. Thus, contrary to the majority's conclusion, the State clearly had the opportunity to question these jurors about their prior criminal history and about the alleged discrepancy between their answers on the questionnaire and the State's alleged records during individual voir dire without fear of embarrassing those jurors in front of other potential jurors and without fear of creating “a chilling effect” on other potential jurors, but it did not do so. Therefore, I cannot, as the majority does, excuse the State's failure to question these jurors.
The majority also excuses the State's failure to question Jurors no. 27 and 11 about their alleged prior convictions because, it says:
“Once the State discovered that a discrepancy existed between the public records of conviction and the sworn responses provided by Jurors no. 27 and 11, it would have been apparent to the State that Jurors no. 27 and 11 had not been truthful in answering their juror questionnaires.”
151 So.3d at 368. This conclusion by the majority is problematic, for several reasons.
First, the majority assumes, as did the trial court in its order, that the State was aware that Jurors no. 27 and 11 did not state on their juror questionnaires that they had prior convictions and that the State would have struck these jurors for allegedly not answering truthfully. However, the State did not even mention the juror questionnaires when providing this reason for striking Jurors no. 27 and 11, much less indicate that it was striking Jurors no. 27 and 11 because they had allegedly not answered questions truthfully. Although the failure of a potential juror to answer questions truthfully would certainly be a valid reason for a peremptory strike, neither a trial court nor an appellate court may substitute what would be a valid non-pretextual reason for a peremptory strike (the failure of a potential juror to answer questions truthfully) for the reason that was actually provided by the State (the potential juror allegedly had a prior conviction). “If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.” Miller–El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (emphasis added).
In addition, as explained above, the State was wholly unaware of the answers provided by Juror no. 38 on her juror questionnaire. The State asserted as a reason for striking Juror no. 38 that she had a “checkered” employment history and had worked for only 7 months in the last 10 years despite the fact that on the first page of her juror questionnaire, Juror no. 38 had stated that she had retired from the Department of Defense as a program analyst in 2003, approximately three years before Sharp's trial. When questioned on this topic at the hearing on remand, the State indicated that it was not aware of Juror no. 38's status as a retiree, despite that fact being clearly stated on her juror questionnaire. Thus, I cannot assume, as the majority does, that the State was aware of the answers provided by Jurors no. 27 and 11 on their questionnaires or that the State would have struck Jurors no. 27 and 11 for allegedly not answering questions truthfully.
Second, the majority assumes that Jurors no. 27 and 11 actually had prior convictions. However, nothing in the record supports this assumption. The only indication in the record that Jurors no. 27 and 11 had any prior convictions was the assertion by the prosecutor. “[U]nsworn statements, factual assertions, and arguments of counsel are not evidence.” Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005). On the other hand, the responses of Jurors no. 27 and no. 11 on their juror questionnaires, which, as the majority recognizes, were “sworn” under oath, indicated that neither had any prior convictions. 151 So.3d at 375. Although the trial court noted generally in its order that a peremptory strike based on information that a potential juror has a criminal history is race neutral (a statement with which I do not disagree), the trial court never made a finding of fact as to whether Jurors no. 27 and 11 actually had any prior convictions.
In addition, the alleged “records” the State referred to on remand to support its assertion that Jurors no. 27 and 11 had prior convictions are not included in the record before this Court. Although I do not disagree with the majority that criminal convictions are a matter of public record, and the State, in its application for rehearing, does assert that the convictions of Jurors no. 27 and 11 can be found on alacourt.com, it is well settled that “[a]n appellate court cannot consider matters and allegations outside the record.” Childs v. State, 574 So.2d 1023, 1024 (Ala.Crim.App.1990). In addition, although “[t]his Court may take judicial notice of its own records,” Wilkerson v. State, 70 So.3d 442, 448 n. 2 (Ala.Crim.App.2011), “[g]enerally, a court may not take judicial notice of the records of another court.” Worthington v. Amerson, 741 So.2d 437, 438 n. 2 (Ala.Civ.App.1999). As the Alabama Supreme Court explained in Green Tree–AL LLC v. White, 55 So.3d 1186 (Ala.2010) :
I have searched this Court's records and have found no evidence of convictions for either Juror no. 27 or Juror no. 11.
“ ‘It has long been our rule that an appellate court may not rely on facts
outside the record.... Moreover, a court may not ordinarily take judicial notice of the records of another court. See Belyeu v. Boman, 252 Ala. 371, 373, 41 So.2d 290, 291 (1949) (holding that the Supreme Court of Alabama may not take judicial notice of the records of the trial court unless those records appear in the clerk's record or in the records of the Supreme Court ); Worthington v. Amerson, 741 So.2d 437, 438 n. 2 (Ala.Civ.App.1999) (“Generally, a court may not take judicial notice of the records of another court.”).’ ”
55 So.3d at 1193 (quoting Ex parte Jett, 5 So.3d 640, 645–46 (Ala.2007) (See, J., concurring specially)). See also Nesby v. City of Montgomery, 652 So.2d 784, 786 (Ala.Crim.App.1994) (“This Court cannot take judicial notice of ‘other proceedings.’ ”). Although it may have been permissible for the trial court to have taken judicial notice of the State's alleged “records” of convictions if those convictions had occurred in the Madison Circuit Court, there is no indication in the record before this Court that the trial court did so. Indeed, there is no indication in the record that the trial court even looked at the alleged records relied on by the State—the trial court did not mention these “records” in its order. Rather, the trial court merely accepted at face value the State's explanation without considering all the relevant circumstances.
Notably, the State had the opportunity on remand to provide support for its assertion that Jurors no. 27 and 11 had prior convictions; it failed to do so. When Sharp pointed out in his written response the lack of support in the record for the assertion that Jurors no. 27 and 11 had prior convictions and the fact that the juror questionnaires established no such prior convictions, the State did not respond to the argument in its written reply. I recognize that “[t]he fact that a prosecutor's stated reason for striking a juror is not reflected in the record does not necessarily make that reason pretextual.” Martin v. State, 62 So.3d 1050, 1060 (Ala.Crim.App.2010). In addition, this Court has held that “[t]here is no requirement that a prosecutor establish evidentiary support for every strike in every case, especially where the defendant has not specifically questioned the validity of the prosecutor's explanations or demanded further proof. ” Hall v. State, 816 So.2d 80, 85 (Ala.Crim.App.1999) (emphasis added). However, under the specific circumstances in this case—among other things, where Sharp specifically questioned the validity of this reason for striking Jurors no. 27 and 11 in his written response and this reason is not supported by the record—I believe it was incumbent on the State to at least reply to Sharp's argument, if not to provide evidence of the alleged prior convictions. Cf., Ex parte Thomas, 601 So.2d 56, 58 (Ala.1992) (holding that the trial court erred in not ordering the State to provide to the defense the document listing misdemeanors and traffic infractions of potential jurors that was used by the State as the sole basis for striking several African–American veniremembers because, in refusing to do so, the trial court merely “accept[ed] at face value the State's ostensibly facially neutral explanations for the use of its peremptory strikes,” which is prohibited).
Therefore, I cannot, as the majority does, simply assume that the prosecutor's unsworn factual assertion that Jurors no. 27 and 11 had prior convictions is true and assume that the sworn statements by Jurors no. 27 and 11 on their juror questionnaires are false. Rather, all I am permitted to do is consider the circumstances in the record before me, all of which lead me to conclude that the State's failure to question Jurors no. 27 and 11 cannot be excused but must be considered evidence, albeit not conclusive by itself, that the prior-conviction reason for striking Jurors no. 27 and 11 was a pretext for discrimination.
Also evidence of discrimination is the disparate treatment disclosed by the record with respect to the prior-conviction reason. The State struck Jurors no. 27 and 11, as well as Juror no. 47, all African–Americans, in part, because they had at least one prior conviction. Yet the State did not strike Juror no. 24, a Caucasian, who stated on his questionnaire that he had previously been convicted of assault, and Juror no. 24 sat on Sharp's jury. As this Court explained in Yancey v. State, 813 So.2d 1 (Ala.Crim.App.2001) :
“Though we have held that striking a prospective juror because of a prior criminal history is a race-neutral reason, we have also held that the failure to strike both whites and blacks because of prior criminal records is evidence of disparate treatment, in violation of Batson. See Powell v. State, 548 So.2d 590 (Ala.Crim.App.1988), aff'd, 548 So.2d 605 (Ala.1989). ‘Such disparate treatment of otherwise similarly situated persons who happen to be of different racial backgrounds, would evidence discriminatory intent in the State's use of its strikes.’ Bishop v. State, 690 So.2d 498, 500 (Ala.Crim.App.1995), on remand, 690 So.2d 502 (Ala.Crim.App.1996).”
813 So.2d at 7. See also Rice v. State, 84 So.3d 144, 149 (Ala.Crim.App.2010), and Preachers v. State, 963 So.2d 161, 167–69 (Ala.Crim.App.2006).
The majority concludes that there was no disparate treatment by the State in this regard because, it says, Jurors no. 27 and 11 were not “similarly situated” to Juror no. 24. In reaching this conclusion, the majority again assumes, with no support in the record, that Jurors no. 27 and 11 actually had prior convictions and reasons that because Juror no. 24 disclosed his prior conviction on his juror questionnaire while Jurors no. 27 and 11 did not disclose their alleged prior convictions on their juror questionnaires, Juror no. 24 cannot be “similarly situated” to Jurors no. 27 and 11 for purposes finding disparate treatment. As already explained, however, I cannot assume that Jurors no. 27 and 11 actually had prior convictions when the record does not support that assumption. Likewise, the record reflects that the alleged failure of Jurors no. 27 and 11 to answer questions truthfully was not a basis offered by the State for striking these jurors nor was it a basis offered by the State to explain the disparate treatment.
As noted above, the State did not respond to Sharp's argument in his written response that the record did not support the assertion that Jurors no. 27 and 11 had prior convictions. In fact, the State failed in its written reply to respond to any of Sharp's arguments. Rather, the State made only a general denial of any discriminatory intent and claimed that Sharp's numerous arguments regarding disparate treatment were based on a flawed analysis. Specifically, the State argued that its strikes were based on the aggregate characteristics of a particular juror and that none of the Caucasian jurors in this case who were not struck by the State shared all the same aggregate characteristics as the African–American jurors who were struck and, thus, that there could be no disparate treatment. The majority's view is similar—it picks one difference between Jurors no. 27 and 11 and Juror no. 24 and concludes that the jurors were not “similarly situated” because of that single difference. Both the State and the majority appear to believe that as long as there is at least one alleged difference between a struck African–American juror and a Caucasian juror who was not struck, there can be no disparate treatment.However, “to prove disparate treatment in jury selection, it is not necessary to show that the excluded venire panelist was similarly situated to a white potential juror in all respects.” United States v. Torres–Ramos, 536 F.3d 542, 559 (6th Cir.2008). Indeed, the likelihood of two potential jurors sharing all the same characteristics and having no differences at all is remote, at best, which is why such a view has been expressly rejected by the United States Supreme Court. As explained in Dretke:
“None of our cases announces a rule that no comparison of [potential jurors] is probative unless the situation of the individuals compared is identical in all respects, and there is no reason to accept one.... A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters.”
545 U.S. at 247 n. 6. The record here reflects no significant differences between Juror no. 24 and Jurors no. 27 and 11 that would render them not “similarly situated” for purposes of disparate-treatment analysis.
The totality of the circumstances—including the State's lack of questioning of jurors regarding their prior convictions, the lack of support in the record for the State's proffer that Jurors no. 27 and 11 had prior convictions, the disparate treatment of African–American and Caucasian jurors who had prior convictions, and the fact that the State also proffered for striking Jurors no. 27 and 11 the pretextual reason that Jurors no. 27 and 11 were not sufficiently intelligent, as explained above—leaves me no choice but to conclude that the prior-conviction reason for striking Jurors no. 27 and 11 was also pretextual.
III.
The State also proffered as a reason for striking Juror no. 27 that she had answered “no” on question 79 on the juror questionnaire and proffered as a reason for striking Juror no. 11 that she had not answered question 79 on the questionnaire and had not “fully” answered question 74 on the questionnaire. With respect to Juror no. 27, although she did, in fact, answer “no” to question 79, indicating that she could not be fair if she had heard anything in the media regarding this case, Juror no. 27 indicated that she had not, in fact, heard anything in the media regarding the case. During general voir dire of the entire venire, Juror no. 27 did not respond when asked if anyone had read or heard about the case through the media. On the juror questionnaire, the following six questions—questions 68, 69, 70, 71, 78, and 79—asked about the potential jurors' knowledge of the case:
“68. Do you know anything about the facts of this case other than what you have heard in Court today? Yes _____ No _____ If yes, please explain.
“69. From what source have you heard about this case?
“70. Have you discussed this case with someone who claimed to know something about the facts of this case? Yes _____ No _____ If yes, please explain.
“71. Have you heard of this defendant or anything about him apart from anything stated here in open court today? Yes _____ No _____ If yes, what is the source of this information, and please explain how you obtained this information.
“....
“78. What, if anything, have you heard in the media regarding this case?
“79. If you have heard anything in the media regarding this case, do you
feel you can still be fair and impartial to both sides? Yes _____ No _____ If no, please explain.”
Juror no. 27 answered “no” to question 68, “none” to question 69, “no” to questions 70 and 71, and “nothing” to question 78. As applied to Juror no. 27 then, question 79 was nothing more than a hypothetical question and, in context, when Juror no. 27 answered “no” to question 79, she was not indicating that she could not be fair and impartial in the case but was indicating that if the circumstances were different, i.e., if she had actually heard about the case through the media, she would not be able to be fair and impartial. Thus, this answer by Juror no. 27 was no basis for the State's proffered “concern.” Indeed, a simple question during voir dire could have cleared up any “concern” by the State regarding this juror's impartiality. However, the State did not question Juror no. 27 about her answer to question 79. Indeed, as noted previously, Juror no. 27 was not questioned individually at all.
With respect to Juror no. 11, she, too, did not respond during general voir dire when asked if anyone had read or heard about the case through the media. In addition, she, too, indicated on the questionnaire that she had not heard anything about the case, answering “no” to questions 68, 70, and 71, not answering question 69, and answering “nothing” to question 78. Because Juror no. 11 had heard nothing about the case, there was no reason for her to answer question 79 which, as with Juror no. 27, was purely hypothetical as applied to her. Moreover, as with Juror no. 27, the State did not question this juror about her failure to answer question 79. Finally, the record reflects that many potential jurors did not answer question 79 on the questionnaire. Of particular importance here is the fact that Jurors no. 24, 29, 33, 66, 68, and 79—all Caucasians—also did not answer question 79 on the questionnaire, but none of these jurors was struck by the State, and all were chosen to sit on Sharp's jury. Although the lone African–American juror who sat on Sharp's jury also did not answer question 79 on the questionnaire, this does not diminish the evident disparate treatment in the record.
Juror no. 79, although initially sitting on Sharp's jury, was replaced by an alternate during trial. This fact, however, does not alter the Batson analysis.
In addition, question 74 on the questionnaire asked:
“Do you feel the accused is guilty just because he/she is in the courtroom today? Yes _____ No _____ If no, please explain.”
Juror no. 11 answered “no” to this question but did not explain as requested. However, of the 14 jurors selected for service, only one provided an explanation to this question or, as phrased by the prosecutor, “fully” answered this question. Although all 14 jurors selected to serve answered “no” to this question—as did Juror no. 11—12 of those jurors provided no explanation at all for their answer, just like Juror no. 11, and one indicated “N/A.” Thus, it would not appear that the State was overly concerned about the failure of jurors to “fully” answer question 74, despite its claim to the contrary at the hearing on remand. “This court has condemned the failure to strike white venirepersons who share the same characteristics as black venirepersons who were struck.” Bishop v. State, 690 So.2d 498, 500 (Ala.Crim.App.1995). Moreover, the State did not question Juror no. 11, or any of the potential jurors, with respect to question 74.
Accordingly, based on the disparate treatment and lack of questioning, and in light of the other pretextual reasons proffered by the State for striking Jurors no. 27 and 11, as discussed above, I must conclude that these reasons for striking Jurors no. 27 and 11 were also pretextual.
IV.
Finally, the State proffered as its “first” reason for striking Juror no. 11 that she was a Seventh Day Adventist and, thus, that she could not work on Saturdays because of her religious beliefs. The record reflects that during group voir dire, the trial court informed the venire that the trial might last through Saturday of that week and asked if anyone had a problem with working Saturday and, if so, to write that on the questionnaires they were going to complete that afternoon or inform the court during individual voir dire. Juror no. 11 did not state on her questionnaire that she had a problem with working on Saturday, although she did indicate on the questionnaire that she was a Seventh Day Adventist. The State also did not question Juror no. 11 about her ability to work on Saturday. Rather, the State merely assumed, based solely on religious affiliation, that Juror no. 11 could not work on Saturday. The fact, however, that a person holds a certain religious affiliation does not establish that he or she subscribes to all of the beliefs of that religion. As noted previously, a group bias where the trait of concern—in this case, the inability to work on Saturday—was not shown to apply to this particular juror is evidence that the proffered reason for striking Juror no. 11 is a sham or pretext for discrimination.
As the majority correctly notes, a total of three jurors indicated on their questionnaires that their religion generally prohibited working on Saturdays—Juror no. 11 and Juror no. 39 indicated that they were Seventh Day Adventists, and Juror no. 52 indicated that she was a Sabbath Keeper—and the State struck all three of those jurors. However, only one of those jurors, Juror no. 39, actually indicated, during individual voir dire, that his religious beliefs would prohibit him from serving as a juror on Saturday.
In addition, the State's lack of questioning of this juror, which could have easily cleared up any concern as to whether this juror could work on Saturday, is also evidence of discrimination. Therefore, for these reasons, and in light of the State's other pretextual reasons proffered for the strike of Juror no. 11, as explained above, I must conclude that this reason for striking Juror no. 11 was also pretextual.
V.
My conclusion that all of the State's reasons for striking Juror no. 27 and Juror no. 11 were pretextual is buttressed by the questionable reasons the State proffered for its strikes of other African–American jurors. Having determined that the reasons for striking Jurors no. 27 and 11 were pretextual, I would closely scrutinize the State's remaining strikes. Once the State's reasons for striking a potential juror are found to be invalid, the reasons for striking other jurors become suspect and are subject to greater scrutiny. See, e.g., Ex parte Bird, 594 So.2d 676 (Ala.1991), and Maddox v. State, 708 So.2d 220 (Ala.Crim.App.1997). As the Alabama Supreme Court explained in Ex parte Bird:
“Although one unconstitutional peremptory strike requires reversal and a new trial, we take this opportunity to accentuate the specific weaknesses of the State's explanations regarding a number of its challenges. In doing so, we point out that the State's failure to articulate a legitimate reason for its challenge of veniremember number 26 exposes its rationale for subsequent strikes to greater scrutiny. See State v. Antwine, 743 S.W.2d 51, 64 (Mo.1987). Thus, even explanations that would ordinarily
pass muster become suspect where one or more of the explanations are particularly fanciful or whimsical. ”
594 So.2d at 683 (emphasis added).
One of the reasons the State proffered for striking Juror no. 39 was that he had a friend who was a pastor and either was himself or knew someone involved in prison ministries and one of the reasons the State proffered for striking Juror no. 52 was that she was studying to be a minister and “that was not the kind of juror [the State was] looking for.” (RTR, R. 13.) However, the State did not strike Juror no. 79, a Caucasian, who was a minister and who indicated on his questionnaire that he had previously volunteered visiting inmates in prison.
In addition, one of the reasons the State proffered for striking Juror no. 47, an African–American, was that she had answered on the juror questionnaire that she believed the State should have to prove its case beyond all doubt and that a criminal defendant should have to testify on his or her own behalf. However, when proffering this reason at the hearing on remand, the State admitted that many other jurors, some of whom sat on Sharp's jury, had answered similarly. Indeed, the record reflects that half of the petit jurors had answered similarly to Juror no. 47. Specifically, Jurors no. 5, 29, 44, 46, 59, and 70—all Caucasians who sat on Sharp's jury—answered on their questionnaires that they believed the State should have to prove its case beyond all doubt. Additionally, Caucasian Juror no. 59 answered on the questionnaire—exactly like struck African–American Juror no. 47—that he believed a criminal defendant should have to testify on his or her own behalf.
Finally, one of the reasons proffered for striking Juror no. 74 was that she had a son who had been the victim of two robberies and that there had been no arrest or conviction for either of those crimes. Similarly, one of the reasons proffered for striking Juror no. 55 was that she had a son who had been the victim of attempted murder and that there had been no arrest or conviction for that crime. However, the State did not strike Juror no. 66—a Caucasian who sat on Sharp's jury—who indicated that he had been the victim of assault and, although an arrest was made, no conviction resulted. Likewise, the State did not strike Juror no. 68—a Caucasian who also sat on Sharp's jury—and who had been the victim of date rape and there had been no arrest or conviction in connection with that crime. Additionally, several other Caucasian jurors who sat on Sharp's jury had, themselves, been victims of violent crimes similar to that endured by Juror no. 74's son, although all of those crimes resulted in arrests and convictions.
I recognize the inherent difficulty facing prosecutors who have to provide reasons for peremptory strikes years, and hundreds of trials, after those strikes were made. I also recognize that disparate treatment of jurors may have a legitimate explanation. Peremptory strikes are, after all, often based on instinct. However, as the United States Supreme Court explained in Dretke:
“[W]hen illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.”
Under the circumstances in this case, after thoroughly reviewing the record, examining the reasons proffered by the State for its strikes and the arguments made by Sharp in response, and considering all relevant circumstances, I have no choice but to conclude that the State exercised its peremptory strikes in a discriminatory manner against African–Americans, in violation of Batson. Therefore, I believe that Sharp is entitled to a new trial, and I must respectfully dissent.
See Maddox v. State, 708 So.2d 220, 223 (Ala.Crim.App.1997) (noting that “[i]n determining whether the reasons given by the State for its peremptory challenges are pretextual, the ... court has a duty to consider the evidence offered by both the State and by the defense in rebuttal”).
WELCH, J., concurs.