Christopher Anthony Floyd v. State of Alabama
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REL: 11/08/2013
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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2013-2014
_________________________
CR-05-0935
_________________________
Christopher Anthony Floyd
v.
State of Alabama
Appeal from Houston Circuit Court
(CC-04-1670)
On Return to Second Remand
BURKE, Judge.
Christopher Anthony Floyd was convicted of capital murder
for intentionally murdering Waylon Crawford during the course
of a robbery. See § 13A-5-40(a)(4), Ala. Code 1975. Following
the jury's advisory recommendation of death, the trial court
CR-05-0935
sentenced Floyd to death. On September 28, 2007, this Court
remanded this case to the trial court to hold a hearing
pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and J.E.B.
v. Alabama, 511 U.S. 127 (1994), during which the prosecutor
was to come forward with race-neutral and gender-neutral
reasons for his strikes. If the prosecutor was unable to do
so, Floyd was to be entitled to a new trial. On September 29,
2008, following the trial court's return to remand, this Court
affirmed Floyd's capital-murder conviction and sentence to
death. Thereafter, on September 28, 2012, the Alabama Supreme
Court reversed this Court's decision and remanded the case
with directions to this Court based on the trial court's
failure to enter specific findings as to the reasons offered
by the State for its strikes of African-American and female
potential jurors. This case was then remanded to the circuit
court for a second time pursuant to the Alabama Supreme
Court's
decision
with
directions
to
make
all
necessary
findings of fact and conclusions of law concerning: "[W]hether
the State's offered reasons for striking the African-American
jurors it struck were race neutral; whether the State's
offered reasons for striking the female jurors it struck were
2
CR-05-0935
gender neutral; and 'whether the defendant has carried his
burden of proving purposeful discrimination.' Hernandez[ v.
New York, 500 U.S. 352,] 359 [(1991)]; see also the Court of
Criminal Appeals' opinion on original submission." ___ So. 3d
at ___ (footnote omitted).
The trial court has filed a second return to remand,
including Floyd's proposed order arguing that he had met his
burden of proving purposeful discrimination by the prosecutor
and that the State had failed to provide race-neutral and
gender-neutral reasons for its strikes.
The trial court entered an order, finding that the first
of the three-step analysis for determining whether the State
used
its
strikes
in
a
discriminatory
manner
had
been
determined by this Court on direct appeal. Batson v. Kentucky,
476 U.S. at 97, 98 ("Once the defendant makes a prima facie
showing, the burden shifts to the State to come forward with
a neutral explanation for challenging black jurors.... The
trial court then will have the duty to determine if the
defendant has established purposeful discrimination."). See
also McCray v. State, 88 So. 3d 1, 17 (Ala. Crim. App.
2010)("In evaluating a Batson, or J.E.B., claim, a three-step
3
CR-05-0935
process must be followed. As the United States Supreme Court
explained in Miller–El v. Cockrell, 537 U.S. 322, 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 v. Kentucky,] 476 U.S.
[79,] 96–97[, 106 S.Ct. 1712, 1723 (1986)]. Second, if that
showing
has
been
made,
the
prosecution
must
offer
a
race-neutral basis for striking the juror in question. Id., at
97–98. Third, in light of the parties' submissions, the trial
court
must
determine
whether
the
defendant
has
shown
purposeful discrimination. Id., at 98.' 537 U.S. at 328–29,
123 S.Ct. 1029.").
On direct appeal of this case, this Court
determined that a prima facie case of racial and gender
discrimination had been established. Floyd v. State, [Ms. CR05-0935, September 28, 2007]
So. 3d
(Ala. Crim. App.
20071). Thus, as found by the trial court, the first step of
a showing of discrimination in striking the jury was met.
In its order on return to second remand, the trial court
stated that Floyd is white and the jury was all white except
1
This Court determined that the gender-based challenge was
not as strong or supported as the race-based challenge;
however, out of an abundance of caution, reasons were also
required for those strikes.
4
CR-05-0935
for the alternate juror, who was African-American. The court
had directed the State to provide reasons for its 10 strikes
of
the
11
African-American
potential
jurors.
The
court
outlined the State's reasons as having been as follows:
"Juror number 28: [P.B.], black female, was struck
because she had 32 bad check cases and her probation
had been revoked. This was the State's first strike.
"Juror number 43: [J.B.], black male, had been
convicted of harassment twice and had 12 traffic
tickets. He was the State's second strike.
"Juror number 59: [M.C.], black female, was opposed
to the death penalty but reluctantly indicated that
she could follow the law though. She was the third
strike. The state indicated she vacillated on the
death penalty.
"Juror number 38: [K.B.], black male, was convicted
of disorderly conduct and knew a potential witness.
A juror list reviewed by a law enforcement officer
indicated this individual would be a bad juror. This
was the State's fourth strike.
"Juror number 46; [T.C.], black female, had 6
convictions and was the state's sixth strike. During
voir dire she questioned the veracity of law
enforcement testimony. She knew prosecutors who
prosecuted her and her brother.
"Juror number 57: [A.C.], black female, had been
convicted of theft of property and NWNI [negotiating
worthless negotiable instruments]. She was the
seventh strike.
"Juror number 60; [L.C.], black female, knew the
attorneys and a witness and was the eighth strike.
She was also struck because her religious beliefs
5
CR-05-0935
impacted her ability to sit in judgment of the
accused.
"Juror number 19: [D.B.], black female, had not been
paying attention. She was the State's eleventh
strike. She failed to make eye contact with the
prosecution but was 'nodding in agreement with the
defense.'
"Juror number 58; [I.C.], black female, the State
could not remember much about her. She was the
State's sixteenth strike. The State indicated she
was struck because she did not respond to any
questions and she did not appear on the State's
list.
"Juror number 51: [R.C.], black female, was struck
because of her age. She was born in 1928. Actually,
she sat on the jury as an alternate."
(R 3.2 31-32.) The trial court also found that Floyd had
struck J.B., a black male.
As to the female potential jurors, under the J.E.B.
claim, the court found that the jury was composed of six males
and six females. The court further stated that the State
presented the following reasons for its strikes:
"[J]uror number 23: [R.B.] because the prosecutor
determined that she was a weak juror and failed to
respond to any questions. Juror number 70: [K.D.]
was stuck because of age as being close in age to
the defendant. Juror number 35: [S.B.] did not
respond to any one and was close in age to the
defendant. The State struck juror number 5: [T.A.M.]
because of age."
2
R 3 denotes the record filed on return to second remand.
6
CR-05-0935
(R 3. 32.)
The trial court then determined in its order that the
State had presented race- and gender-neutral reasons for its
strikes. The court noted that the reasons given by the State
concerning the racial-bias challenge had previously been held
to be race neutral, "such as: opposition to the death penalty;
age; nonresponsiveness to questioning; religious beliefs;
prosecutions or conviction of prospective juror or family
member; acquaintance with attorneys involved in the case;
bias; lack of mental acuity; inattentiveness to questioning;
and demeanor." (R 3. 33). As part of this third stage of the
analysis, the court noted that the burden again was on Floyd
to offer evidence that the reasons given by the State had been
pretextual or shams and that the prosecutor had intentionally
discriminated.
The court also noted that this is a factual
determination. As to Floyd's arguments to rebut the reasons
given by the prosecutor, the trial court found that Floyd
contended that the prosecutor had failed to meaningfully
question the jurors who were struck concerning the stated
reasons for the strikes. Floyd also argued that the prosecutor
had historically discriminated in his striking of the jury and
7
CR-05-0935
cited five cases in which convictions were reversed by this
Court
on
the
basis
of
that
prosecutor's
discriminatory
strikes. Floyd also argued that, although the prosecutor had
stated that certain jurors were struck based on their or their
family's criminal backgrounds, the defense had no means to
check this information. Moreover, Floyd argued, some of the
jurors were allegedly struck by the prosecutor based on age,
but the record showed that their ages varied from 28 to 77
years old. Finally, Floyd alleged that two white jurors, who
were similarly situated to black jurors whop were struck based
on traffic tickets and opinions as to the death penalty, were
allowed to remain on the jury. As to these two white jurors,
the
court
found
no
indication
of
discrimination
distinguished the two white jurors as follows:
"[J]uror number 54, K.C., a white male, also had a
traffic ticket. This Court was aware of Mr. C.'s law
and order philosophy –- as was the State. The State
strike list indicated he would be a good juror.
Floyd also questioned the reason the State struck a
black female because she vacillated on the death
penalty, and yet, failed to strike C.D., juror
number 74, a white female who expressed, similar
reservations. The State strike list had a 'no'
beside her name. In fact, Chief Assistant District
Attorney Gary Maxwell, who struck the jury, stated
that he intended to strike C.D. but was directed by
District Attorney Doug Valeska to keep her on the
jury. Again, the Court was familiar with Ms. D. who
8
and
CR-05-0935
comes from an old Dothan family with extensive ties
to the community. Mr. Valeska knew the family. These
were valid reasons expressed by the State for
keeping these two individuals on the jury. Floyd
argued that these two white jurors were similarly
situated as to black jurors struck by the State. The
Court does not find that to be the case."
(R 3. 35-36.)
The court in its order stated that it had improperly
focused on Floyd's "invited error" because he had indicated
that he was satisfied with the jury, rather than having
addressed the third step of a Batson inquiry. (R 3. 36.)
According to the trial court, it had a "long-standing practice
of ordering the State to give its reasons for strikes of
African-Americans whenever a Batson motion is made even if a
prima
facie
case
is
not
made
by
the
defense."
(R
3.
36.)(Emphasis in original.) Thus, the court stated that the
State was put on standing notice that it would have to provide
reasons regardless of a prima facie showing by the defendant,
and
the
court
stated
that
it
had
considered
this
when
evaluating the state's reasons and weighing them against
Floyd's objections.
9
CR-05-0935
The trial court ultimately considered the above-stated
reasons from the State and arguments from Floyd concerning
those reasons and concluded:
"This Court already has held an evidentiary
hearing in this case. Having again considered the
evidence presented at the hearing, the Court
determines that the reasons offered by the
prosecution for its use of peremptory strikes
against African-Americans were race-neutral and its
reasons for striking women were gender-neutral.
Therefore, it is this Court's determination that
Floyd has failed to prove that the prosecution
purposely discriminated against African-Americans
and women during jury selection. Further, the Court
finds that the evidence taken at the Batson hearing
does not suggest that the prosecution's facially
race and gender-neutral reasons for striking
African-American and female jurors were a mere sham
or pretext. Floyd has failed to carry his burden of
proving purposeful discrimination on the basis of
race or gender. The Court hereby denies Floyd's
Batson and J.E.B. claims."
(R 3. 36-37.) The trial court thereby found no purposeful
discrimination by the State on the basis of race or gender in
striking the jury.
As
the
court
noted
in
its
order,
this
Court
has
previously determined, on direct appeal of this case, that a
prima facie case of discrimination was made as to race and,
out
of
an
abundance
of
caution,
10
as
to
gender.
Thus,
a
CR-05-0935
presumption of discrimination then existed as to the use of
the peremptory challenges. Batson, 476 U.S. at 97.
The
State
then
provided
reasons
for
its
strikes
of
African-Americans and females; those reasons had to be clear
and to relate to the case, but they did not need to rise to
the level of a challenge for cause. Ex parte Branch, 526 So.
2d 609, 623 (Ala. 1987).
"'"'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 the trial
judges's province.'" Hernandez,
11
CR-05-0935
500 U.S. at 365, 111 S.Ct. at
1869.'
"'"Allen v. State, 659 So. 2d 135, 147
(Ala. Crim. App. 1994)."
"'Martin v. State, 62 So. 3d 1050, 1058–59 (Ala.
Crim. App. 2010).'"
Riley v. State, [Ms. CR-10-0988, August 30, 2013] ___ So. 3d
___, ___ (Ala. Crim. App. 2013), quoting Thompson v. State,
[Ms. CR-05-0073, February, 17, 2012] ___ So. 3d ___, ___ (Ala.
Crim. App. 2012).
Here,
the
State
presented
clear
reasons
that
were
facially race- and gender-neutral. The reason that potential
jurors were struck because of criminal activity is raceneutral. See, Sharp v. State, [Ms. CR-05-2371, June 14, 2013]
___ So. 3d ___, ___ (Ala. Crim. App. 2012)(opinion on remand
from the Supreme Court on application for rehearing on return
to second remand)("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."Footnote omitted.)) See also Wilson v.
State, [Ms. CR-07-0684, November 5, 2010] ___ So. 3d ___, ___
(Ala. Crim. App. 2012);
Welch v. State, 63 So. 3d 1275, 1283
12
CR-05-0935
(Ala. Crim. App. 2010); Thomas v. State, 611 So. 2d 416, 418
(Ala. Crim. App. 1992). The reason that an African-American
juror knew a witness was also race-neutral. Temmis v. State,
665 So. 2d 953 (Ala. Crim. App. 1994) (noting that the fact
that
a
prospective
juror
knows
a
witness
is
a
valid
race-neutral reason for removing the juror). The reason given
for the strike of an African-American potential juror –because she knew the prosecutors who had prosecuted her
brother -- has also been held to be race-neutral. Jackson v.
State, [Ms. CR-07-1208, March 29, 2013]
So. 3d
,
(Ala. Crim. App. 2013) ("As to Juror 284 who was struck by the
prosecutor, the court affirmed that she 'has a brother who has
been prosecuted in this very court and sent to prison by the
undersigned. Her brother was prosecuted by this District
Attorney's office.' (Record on Return to Remand, 6.) Th[is]
reason[]
[is]
race
neutral.").
Further,
the
prosecutor's
reason for striking an African-American potential juror, that
she vacillated on being able to impose the death penalty, has
been held to be race-neutral. Mashburn v. State, 7 So. 3d 453,
461 (Ala. Crim. App. 2007)("The prosecutor stated that he
struck the challenged veniremembers based on their ambiguous
13
CR-05-0935
answers to questions regarding the imposition of the death
penalty or based on their opposition to the death penalty.
'"Although a juror's reservations about the death penalty may
not be sufficient for a challenge for cause, his view may
constitute a reasonable explanation for the exercise of a
peremptory strike." Johnson v. State, 620 So. 2d 679, 696
(Ala.Cr.App. 1992), reversed on other grounds, 620 So. 2d 709
(Ala. 1993), on remand, 620 So. 2d 714 (Ala.Cr.App.), cert.
denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed. 2d 235 (1993).'
Dallas v. State, 711 So. 2d 1101, 1104 (Ala. Crim. App. 1997),
aff'd, 711 So.2d 1114 (Ala. 1998)."). The prosecutor's reason
for
striking
an
African-American
juror
--
because
her
religious beliefs prevented her from sitting in judgment -was also race-neutral. Smith v. State, 838 So. 2d 413 (Ala.
Crim. App. 2002).
Moreover, the prosecutor gave as reasons the older age of
a potential juror and the fact that law enforcement or the
prosecutor did not believe that the potential juror would be
a
good
juror.3
The
prosecutor
3
also
referred
to
another
This finding by the trial court addresses one of the two
potential jurors the Alabama Supreme Court noted as having
been struck despite the prosecutor's inability to remember the
reason for his strike. This Court stated on return to remand
14
CR-05-0935
African-American juror's older age4 and to the ages of two
female jurors who were similar in age to Floyd. These reasons
have been held to be facially nondiscriminatory.
"Age, place
of employment and demeanor of the potential juror have been
held to be sufficiently race-neutral reasons for exercising a
peremptory challenge." Sanders v. State, 623 So. 2d 428, 432
(Ala. Crim. App. 1993). See Floyd v. State, [Ms. CR–05–0935,
September 28, 2007] ___ So. 2d ___, ___ (Ala. Crim. App. 2007)
(finding no improper reason for strike when "prosecutor stated
that he struck juror no. 5 because of her age and because his
initial impression of her was that she would not make a
favorable juror for the State").
"'Indeed, this sort of situation is precisely
why Batson jurisprudence requires reviewing courts
to give "great deference" to a trial judge's
determination of no racial motivation in a
peremptory strike. See, e.g., United States v.
Bernal–Benitez, 594 F.3d 1303, 1312 n. 5 (11th Cir.
2010)(recognizing importance of deference because
"[t]he judge presiding over jury selection is in a
better position than we are to consider the relevant
that the prosecutor had in fact stated that the juror was
struck because of her age and because he did not believe that
she would make a favorable juror. On return to second remand,
the trial court gave these reasons for finding that the
State's
striking
of
this
potential
juror
was
not
discriminatory.
4
This juror served as an alternate.
15
CR-05-0935
evidence-including the interactions between counsel
and the venire during voir dire, counsels' questions
and comments, and the venire persons' demeanors");
[United States v.] Cordoba–Mosquera, 212 F.3d 1194]
at
1198
[(11th
Cir.
2000)]
("Deference
is
particularly warranted here, where the proffered
race-neutral explanation centered on ... behaviors
that
are
especially
given
to
on-the-spot
interpretation.")....'"
Jackson v. State, [Ms. CR-07-1208, March 29, 2013] ___ So. 3d
___, ___ (Ala. Crim. App. 2010)(opinion on return to remand),
quoting Lee v. Thomas, (No. 10–0587–WS–M, May 30, 2012) note.
24 (11th Cir.2012) (not reported in F.Supp.3d).
Finally, the prosecutor stated that nonresponsiveness to
his questioning was a reason that he struck two females and
one African-American. This reason has also been held to be
facially nondiscriminatory. Jackson v. State, 686 So. 2d 429,
431 (Ala. Crim. App. 1996)(stating that, despite claims of
gender and racial discrimination in striking the jury, "[t]he
reason for the prosecutor's striking of Juror No. 209, Juror
No. 57 and Juror No. 75, a black male and two white females,
i.e., they were nonresponsive to questions by the prosecutor,
has been held to be a race-neutral reason. See Macon v. State,
[659 So. 2d 221 (Ala. Crim. App. 1994)]; Johnson v. State, 648
So. 2d 629 (Ala.Cr.App. 1994).").
16
CR-05-0935
"'A valid race-neutral reason for striking
a juror is because he is inattentive,
hostile, or impatient, or is evasive and
ambiguous
when
answering
questions.
Mitchell
v.
State,
579
So.
2d
45
(Ala.Cr.App. 1991), cert. denied, 596 So.
2d 954 (Ala. 1992).... See Stephens v.
State, 580 So. 2d 11 (Ala.Cr.App.),
affirmed, 580 So. 2d 26 (Ala.), cert.
denied, 502 U.S. 859, 112 S.Ct. 176, 116
L.Ed. 2d 138, rehearing denied, 502 U.S.
1000, 112 S.Ct. 625, 116 L.Ed. 2d 647
(1990) (holding that strike based on
juror's demeanor was valid race-neutral
reason and did not violate Batson ).'
"Brown v. State, 623 So. 2d at 419. See also Nesbitt
v. State, 531 So. 2d 37, 40 (Ala. Crim. App. 1987)
(holding that the fact that a juror 'appeared to be
inattentive' was neutral reason)."
Riley v. State, supra at
.
Thus, the prosecutor presented reasons for his strikes
that were facially race- and gender-neutral.
"'"Once the prosecutor has articulated
a race-neutral reason for the strike, the
moving party can then offer evidence
showing that those reasons are merely a
sham or pretext." Ex parte Branch, 526 So.
2d 609, 624 (Ala. 1987). "A determination
regarding a moving party's showing of
intent to discriminate under Batson is '"a
pure issue of fact subject to review under
a deferential standard."' Armstrong v.
State, 710 So. 2d 531, 534 (Ala. Crim. App.
1997), quoting Hernandez v. New York, 500
U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed. 2d
395 (1991)." Williams v. State, 55 So. 3d
366, 371 (Ala. Crim. App. 2010). "The trial
17
CR-05-0935
court is in a better position than the
appellate court to distinguish bona fide
reasons from sham excuses." Heard v. State,
584 So. 2d 556, 561 (Ala. Crim. App.
1991).'"
Riley v. State, ___ So. 3d at ___, quoting Thompson v. State,
___ So. 3d at ___.
"[T]he trial judge must make a sincere and
reasonable effort to evaluate the evidence and
explanations based on the circumstances as he knows
them, his knowledge of trial techniques, and his
observation of the manner in which the prosecutor
examined the venire and the challenged jurors.
People v. Hall, 35 Cal. 3d 161, 672 P.2d 854, 858,
197 Cal. Rptr. 71 (1983); see also [People v.
Wheeler, 22 Cal. 3d [258] at 281, 583 P.2d [748] at
764, 148 Cal.Rptr. [892] at 906 [(1978)].
"In evaluating the evidence and explanations
presented, the trial judge must determine whether
the explanations are sufficient to overcome the
presumption of bias. Furthermore, the trial judge
must be careful not to confuse a specific reason
given by the state's attorney for his challenge,
with a 'specific bias' of the juror, which may
justify the peremptory challenge:
"'The latter, a permissible basis for
exclusion of a prospective juror, was
defined in Wheeler as "a bias relating to
the particular case on trial or the parties
or witnesses thereto." Wheeler, 22 Cal. 3d
at 276, 148 Cal.Rptr., at 902, 583 P.2d at
760. Further, a review of the record
demonstrated that the prosecutor had not,
in fact, satisfied his burden of showing
that he excluded the Spanish surnamed
jurors on the grounds of specific bias.'
18
CR-05-0935
"Slappy[ v. State], 503 So. 2d [350] at 354 [(Fla.
Dist. Ct. App. 1987)]. The trial judge cannot merely
accept the specific reasons given by the prosecutor
at face value, see Hall, 35 Cal. 3d at 168, 672 P.2d
at 858-59, 197 Cal. Rptr. at 75; Slappy, 503 So.2d
at 356; the judge must consider whether the facially
neutral
explanations
are
contrived
to
avoid
admitting acts of group discrimination."
Ex parte Branch, 526 So. 2d 609, 624 (Ala. 1987).
In its order, the trial court considered arguments by
Floyd that the State's reasons were pretextual. Floyd argued
that two African-American jurors were struck for reasons that
were shared by white jurors who were not struck by the
prosecutor. The first concerned the prosecutor's strikes of
African-American jurors based on their criminal activity.
Floyd argued disparate treatment in comparison to white jurors
and referred to a white juror who was not struck, although,
like an African-American juror, the juror had been issued
traffic tickets. However, this argument is misplaced, as the
trial court found. The African-American juror was not struck
for that sole reason but also because of other criminal
activity. "'[W]hen more than one reason was given for striking
some veniremembers, we need only find one race neutral reason
among those asserted to find that the strike was race-neutral;
we need not address any accompanying reasons that might be
19
CR-05-0935
suspect. See Powell v. State, 608 So. 2d 411 (Ala.Cr.App.
1992); Davis v. State, 555 So. 2d 309 (Ala.Cr.App. 1989).'"
Zumbado v. State, 615 So. 2d 1223, 1231 (Ala. Crim. App.
1993).
Moreover,
the
trial
court
stated
that
both
the
prosecutor and the trial court knew this juror to be a strong
advocate of law and order. Giles v. State, 815 So. 2d 585, 589
(Ala. Crim. App. 2000)("a prosecutor's personal knowledge
about a veniremember can provide a race neutral reason for a
strike.").
Floyd
also
argued
that
the
prosecutor's
reason
for
striking an African-American juror for vacillating as to her
ability to impose the death penalty was also shared by a white
juror who was not struck by the prosecutor. However, the trial
court found that the State's reason was in fact race-neutral
because the State's strike list revealed a "no" written by the
white juror; however, she was not struck because the district
attorney was familiar with the juror's family and stated that
she should not be struck. Compare Giles v. State, 815 So. 2d
585, 589 (Ala. Crim. App. 2000)("[A] prosecutor's personal
knowledge about a veniremember can provide a race neutral
reason for a strike. See Weaver v. State, 678 So. 2d 260 (Ala.
20
CR-05-0935
Crim. App. 1995), rev'd on other grounds, 678 So. 2d 284
(Ala.1996)(prosecutor's 'personal knowledge' that potential
juror's brother had been prosecuted by district attorney's
office was race-neutral reason for a strike); McLeod v. State,
581 So. 2d 1144, 1154–55 (Ala. Crim. App. 1990)(on the basis
of
personal
knowledge,
prosecutor
refuted
veniremember's
assertion that he had previously served on a jury that had
returned a guilty verdict in a cocaine case and reason for
strike was race-neutral.).").
"'"'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 the
third step, the trial court must determine
whether the defendant has met his burden of
proving purposeful discrimination. At this
stage, the trial court must consider the
persuasiveness of the explanations, and it
is also at this stage that "implausible or
fantastic justifications may (and probably
will) be found to be pretext for purposeful
discrimination." Purkett, 514 U.S. at 768,
115 S.Ct. at 1771.'"'"
Smith v. State, 838 So. 2d 413, 434-35 (Ala. Crim. App. 2002),
quoting Fletcher v. State, 703 So. So. 2d at 435–36, quoting
21
CR-05-0935
in turn Bush v. State, 695 So. 2d 70, 96 (Ala. Crim. App.
1995).
Here, the trial court evaluated the State's facially
race- and gender-neutral reasons in light of Floyd's arguments
that those reasons were pretextual and that the State intended
to discriminate against those jurors. The trial court found
that the prosecutor's reasons were not discriminatory, despite
Floyd's claims to the contrary. Thus, Floyd did not meet his
burden of proving discrimination by the State.
"'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
22
CR-05-0935
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.'"
Sharp
v.
State,
___
So.
3d
at
___,
quoting
Louisiana, 552 U.S. 472, 477 (2008).
"'"'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.
23
Snyder
v.
CR-05-0935
2d 381,
1990).
384
(Ala.
Crim.
App.
"'"'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.'
"'"Hernandez v. New York, 500 U.S. 352,
365, 111 S.Ct. 1859, 114 L.Ed. 2d 395
(1991)."
"'Doster v. State, 72 So. 3d 50, 73–74 (Ala. Crim.
App. 2010).'"
Riley v. State, ___ So. 3d at ___. "'"'[A] finding is "clearly
erroneous" when although there is evidence to support it, the
reviewing court on the entire evidence is left with a definite
and firm conviction that a mistake has been committed.'"'"
Harris v. State, 2 So. 3d 880, 899 (Ala. Crim. App. 2007),
quoting Fletcher v. State, 703 So. 2d 432, 436 (Ala. Crim.
24
CR-05-0935
App. 1997), quoting in turn Davis v. State, 555 So. 2d 309,
312 (Ala. Crim. App. 1989).
In light of the deference to be accorded to the trial
court and based on the record, including the court's order on
return to second remand, the trial court's finding that the
prosecutor did not purposefully discriminate against AfricanAmerican and female potential jurors during the striking
process was not clearly erroneous. Thus, there was no plain
error as to the prosecutor's striking of the jury and, as all
other matters have previously been resolved, the conviction
and sentence are due to be affirmed.
AFFIRMED.
Windom, P.J., and Welch and Joiner, JJ., concur. Kellum,
J., concurs in the result.
25
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