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Petition
For Writ Of Certiorari
From original URL at: http://www.wallacejordan.com/1980662.txt
REL: 11/19/99 EX PARTE DRINKARD
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 1999-2000
1980662
Ex parte Gary Drinkard
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(Re: Gary Drinkard
v.
State)
(Morgan Circuit Court, CC-93-1308;
Court of Criminal Appeals, CR-95-0055)
HOOPER, Chief Justice.
A jury convicted Gary Drinkard of murder made capital because
it was committed during a robbery in the first degree. Ala. Code
1975, 13A-5-40(a)(2). Drinkard waived his right to a sentencing
hearing before the jury. At his sentencing hearing before the
judge, Drinkard spoke in his own behalf, but offered no evidence of
mitigating circumstances; the trial court sentenced him to death.
The Court of Criminal Appeals affirmed the conviction and sentence.
Drinkard v. State, [Ms. CR-95-0055, December 18, 1998] ___ So. 2d
___ (Ala. Crim. App. 1998). We reverse and remand.
The trial court, over Drinkard's objection, allowed the State,
during the guilt phase of the trial, to introduce evidence
indicating that Drinkard had been involved in a series of thefts
committed by Beverly Robinson and Rex Segars, thefts that were
unrelated to the murder. Evidence of a defendant's prior bad acts,
such as Drinkard's involvement in the thefts, is generally
inadmissible. Such evidence is presumptively prejudicial because
it could cause the jury to infer that, because the defendant has
committed crimes in the past, it is more likely that he committed
the particular crime with which he is charged -- thus, it draws the
jurors' minds away from the main issue. Ex parte Cofer, 440 So. 2d
1121 (Ala. 1983). We conclude that in this case no exception to
the exclusionary rule applied to make the evidence admissible. The
admission of that improper evidence requires that we reverse
Drinkard's conviction.
In its opinion, Court of Criminal Appeals recited the facts as
they were presented by the trial court in its sentencing order:
"`Dalton Pace,
the 62-year-old victim of this crime,
lived on Old Moulton Road in Decatur where
he operated a
vehicle parts business and junkyard out of
his home.
Pace had a reputation for carrying large amounts
of cash
on his person. According to his former
wife, who handled
Pace's business banking and paperwork, he
carried three
rolls of cash: one to buy trucks and parts,
one to make
change for customers and one to be deposited
in the bank
when it accumulated to $2,000. He also
regularly carried
ten $100 bills in his wallet.
"`About 4:30
p.m. on August 18, 1993, Pace's son
stopped by to assist his father in removing
an engine
from a truck. He observed a large `wad'
of cash in his
father's shirt pocket. That same day,
Perry Davis bought
a truck motor from Pace. He paid $550
for the motor and
saw Pace put the cash in the front pocket
of his pants.
"`Between 9:00
and 10:00 on the evening of August
18, Pace's next-door neighbor, Buster Smith,
heard a
banging sound coming from the vicinity of
Pace's home.
Smith paid no particular attention because
his neighbor
was always slamming doors and sometimes shooting
his
guns. Smith later heard a car make a
sound like spinning
gravel and saw a 1976 to 1978 model Ford LTD
speed by the
front of his home. The vehicle's ...
taillight on the
driver's side did not work.
"`At about 4:30
p.m. on August 19, 1993, one of
Pace's friends found him lying dead on the
floor of his
home. Police investigators found 40
cents in one of
Pace's pockets and his wallet containing ten
$100 bills
in another. There was no other cash
on Pace's body or at
the crime scene. The investigators also
recovered a .45
caliber bullet casing near Pace's body and
another in the
kitchen of his home.
"`Dalton Pace
suffered three gunshot wounds: one in
his chest and two in his back--all three of
which were
lethal. The medical examiner recovered
a bullet fragment
from the victim's body. Analysis of
this fragment and
the shell casings found at Pace's home disclosed
that a
.45 caliber ACP type revolver fired all three
bullets.
This type of weapon included a Smith &
Wesson .45 caliber
ACP revolver.
"`In July 1993,
Robert James Fayard sold the
defendant, Gary Wayne Drinkard, a .45 caliber
Smith &
Wesson Colt-style revolver with a circle clip
which held
three bullets. Between a month to two
weeks before
Pace's death, Rex Segars saw a .45 caliber
Colt-style
revolver in the defendant's possession and
actually fired
it. After his arrest for killing Pace,
the defendant
told Robert Fayard to say that he had sold
him a .45
caliber revolver frame that had a .38 caliber
barrel or
that shot .38 caliber bullets.
"`Six to eight
weeks before Pace's death, the
defendant told Rex Segars in a conversation
overheard by
the defendant's half-sister, Beverly Robinson,
that he
knew where to get some easy money. As
Robinson recalled
the conversation, the defendant said an old
man named
Dalton Pace ran a junkyard and kept a wad
of money on
him. A few weeks later, Robinson and
Segars ran into the
defendant who again stated they could get
the money easy.
He asked Segars if he wanted to go in on it.
"`Rex Segars
testified that in the first
conversation on this subject, the defendant
said he knew
a guy who owned a junkyard in Decatur and
kept a large
amount of money. The defendant described
the man as `a
big old S.O.B.' who would have to be killed
to get his
money. In a later conversation about
a month before
Pace's death, the defendant told Segars basically
the
same thing and repeated that he was thinking
about
robbing Pace but would have to kill him.
"`According to
Michael Riggs, who worked for the
defendant in the summer of 1993, his boss
told him in
about early July that he knew where `somebody
could make
a good lick.' The defendant stated that
an old man who
was a junk dealer on Highway 24 kept a good
bit of money
on him. But, according to the defendant,
a person would
have to kill `the S.O.B.' because he would
not give up
his money. Riggs described the defendant
as appearing
serious and cold-hearted when this conversation
took
place.
"`The night after
Pace was robbed and murdered, the
defendant told Rex Segars that he shot the
victim three
or four times--once in the front and three
more times in
the back--but he was still alive. The
defendant worried
that Pace had survived and asked Segars if
he knew where
he could get a `hot' pistol so he could go
to the
hospital and finish him off. According
to the defendant,
he got only $2,200 from robbing Pace.
He also stated
that the victim had grabbed his arm and tore
his sleeve.
Segars saw what appeared to be claw marks
on the
defendant's side.
"`Between his
arrest on August 28, 1993, on a
marijuana possession charge and his arrest
on September
1, 1993, for the capital murder of Dalton
Pace, the
defendant told Beverly Robinson and Rex Segars
that he
was not worried about the police catching
him because
they had no money, fingerprints, eyewitnesses
or gun. At
the time of his arrest, the police found in
the trunk of
the defendant's 1978 Ford LTD a broken left
rear
taillight assembly which was on the vehicle
at one
time.'"
___ So. 2d at ___.
Drinkard raises 29 issues on this certiorari review. Because
we conclude that the trial court erred to reversal in allowing the
State, in the guilt phase, to introduce evidence of Drinkard's
prior bad acts, we need not address each of these issues. However,
we feel compelled to comment on some of them because they may arise
at a new trial.
I.
Two of Drinkard's issues must be addressed together. First,
Drinkard claims that the trial court improperly allowed the State
to introduce an incomplete version of a statement obtained from
him. Second, he claims that the trial court improperly allowed the
State to introduce evidence indicating that he had been an
accomplice in some burglaries. The trial court held that Drinkard
had "opened the door" to testimony about his involvement in the
burglaries when he elicited the full version of the statement.
Before Drinkard's arrest for the murder of Pace, Beverly
Robinson telephoned the police and reported that Drinkard was
involved. During the conversation with police, Robinson indicated
that there was stolen property in her house. She and Rex Segar,
her common-law husband, were arrested after the police conducted a
search of their home. As a part of a plea bargain, the State
agreed to dismiss all of the charges against Robinson if she would
testify truthfully against Drinkard and if she would wear a
concealed microphone and secretly tape a conversation with him.
The police wired Beverly Robinson and instructed her to
attempt to obtain a confession from Drinkard. Investigator Gary
Walker listened to the conversation as it occurred; however, there
was a problem with the equipment, and static interfered with
portions of the transmission. After the conversation, Robinson
wrote a report detailing it. The conversation was taped, but the
tape itself was not introduced into evidence at Drinkard's trial.
During the conversation, Robinson brought up a newspaper
article she had seen about the murder. Drinkard replied by stating
that he had known Pace, that he had bought parts from Pace, and
that Pace "was a pretty good guy." (R. 2038.) Drinkard then made
statements that could have implicated him in the murder; for
instance, Robinson testified: "And then his [Drinkard's] voice got
loud and he said, `He was a big fucker.' He said, `I realized that
when he grabbed my arm and ripped my sleeve.' Drinkard also made
statements which could be considered exculpatory.
On cross-examination, Beverly testified that she tried to get
Drinkard to say something about the murder, by expressing a concern
that maybe the police thought Rex Segar was involved in the murder.
Drinkard's counsel elicited this portion of the conversation to
show that Drinkard had failed to mention the murder in response to
Beverly's concerns. Drinkard, in response to Robinson's
statements, simply stated that he thought the police were merely
concerned with the stolen property found in Robinson and Segar's
home:
"Q. [MR. KING, defense counsel] Something
I noticed you
haven't mentioned in your testimony, your
statement to
Investigator Walker, which I'll let you review
if you'd
like to, I noticed you made several statements
to Mr.
Drinkard stating -- well, you made one statement
that
said, `I said, what has Rex done?' Do
you recall asking
Gary that?
"A. [BEVERLY ROBINSON] Yes, sir, I do.
"Q. And do you recall asking him, `Did Rex kill that man?'
"A. Yes, sir, I did.
"Q. Do you recall asking him, `Is there
anything I need
to get rid of?'
"A. Yes, sir.
"Q. Do you remember again asking him,
`Are there any
clothes in the trailer I need to get rid of?'
"A. I asked him several times, yes, sir.
"Q. And isn't it true that Gary made a statement
to you
after they'd been arrested that this was all
about the
stolen property in your trailer?
"A. No, sir. I think his words were, excuse
me, `It was
all bullshit.' I didn't have anything
to worry about.
"Q. That you didn't have anything --
"A. Right.
"....
"Q. Let me show you page six of your
statement to
Investigator Walker. Didn't or doesn't the
statement say,
quote, that it concerned the stolen merchandise
at your
house?
"A. I'm sorry. Can you repeat your question
to start
with?
"Q. Didn't -- doesn't this report which
you wrote say
that Gary told you that it concerned stolen
merchandise
at the house?
"A. Yes, sir.
"Q. And I'll have you flip to the next page
if you would,
please, ma'am. You see the part I've
underlined?
"A. Yes, sir.
"Q. Doesn't it say, `It's just his parole violation'?
"A. Yes, sir.
"Q. In fact, it says, Rex can beat the charges
they had
against him. It's just his parole violation.
"A. Yes, sir.
"Q. And that's what you wrote down?
"A. Yes, sir."
On re-direct examination, the State immediately began asking
questions concerning Drinkard's involvement with the stolen
property in Robinson and Segar's house:
"Q. [MR. MATTHEWS, prosecutor]
How was it that Gary
knew so much about these thefts that were
involving y'all
and the stolen property in your house?
"A [BEVERLY ROBINSON] How did he know about them?
"Q. Yes, ma'am.
"A. Well, number one, he knew Robbie
Fayard enough to
tell us when Robbie wasn't at home--
"MR. DIGIULIAN
[for the defense]: Judge, we're
going to object to this. This is --
this goes in--
"THE WITNESS:
I don't understand how to answer some
of these questions.
"MR. MATTHEWS:
Wait just a minute while he's
talking. Wait just a minute while he's talking.
"MR. DIGIULIAN:
This goes into what we have
filed in our motion in limine.
"MR. MATTHEWS:
I didn't ask about it, Judge. They
opened the door and asked about the whole
situation and
went into all the details.
"THE COURT: I'm
going to overrule. Y'all did. Y'all
opened the door. I'll allow him to go into
it."
Following this exchange, Robinson was permitted to testify
about Drinkard's involvement with the stolen property. She
described how Drinkard would tell her or Segar that certain people
would not be home. She testified that she and Segar would then
burglarize their houses.
Drinkard first claims that the trial court incorrectly allowed
the State to present only a portion of the conversation with
Robinson in which Drinkard implicated himself. Drinkard made no
objection at trial. The Court of Criminal Appeals held that
introducing only one portion of the conversation was not plain
error. In its opinion, the Court of Criminal Appeals stated:
"Robinson testified that nothing more was said in the conversation
that pertained to the murder. More importantly, nothing prevented
[Drinkard] from questioning Robinson or Walker on cross-examination
about the entire conversation." Drinkard v. State, __ So. 2d at
__.
"If a part of
a conversation is adduced in evidence
by the state as proving the defendant's declarations
or
confessions of guilt, the defendant has the
right to call
for the whole of what was said in that conversation
relative to the subject matter of the issue.
Chambers v.
State, 26 Ala. 59 (1855); William v. State,
39 Ala. 532
(1865); Mullis v. State, 258 Ala. 309, 62
So. 2d 451
(1953). The accused is entitled, on cross-examination,
to
bring out all that he said, at the same time
and on the
same subject. Parke v. State, 48 Ala. 266
(1872)."
King v. State, 355 So. 2d 1148, 1151 (Ala. Crim. App. 1978). In
King v. State, the Court of Criminal Appeals relied upon this
Court's holdings in Chambers v. State, William v. State, Mullis v.
State, and Parke v. State, when it stated:
"A confession should be considered in its entirety.
If
the state introduced into evidence only a
portion of an
alleged confession, a defendant is entitled
to introduce
the remainder of what was said to and by him,
including
any exculpatory statements which would bear
upon the
matter in controversy."
355 So. 2d at 1151. Drinkard introduced what he claimed were
exculpatory statements left out of the testimony introduced by the
State.
Drinkard exercised his right to introduce the whole
conversation, including the exculpatory statements. The fact that
Drinkard's response to Robinson, when she asked Drinkard if "Rex
kill[ed] that man," concerned a totally different subject raises
the possibility that he knew nothing about the murder. Therefore,
those statements (about the stolen property at Robinson and Segar's
home) not only concerned the same subject, they were also
exculpatory. Drinkard's response to Robinson's questions did not
mention the murder; however, it bears upon the matter in
controversy. The Court of Criminal Appeals was correct when it
stated that there was no error when the State introduced part of
the conversation, because the trial court properly allowed Drinkard
to introduce the remainder of the conversation.
However, Drinkard also argues that the trial court improperly
allowed the State to introduce extrinsic evidence of prior bad acts
on his part. "Evidence of other and distinct crimes is as a
general rule not admissible." Vincent v. State, 231 Ala. 657, 660,
165 So. 844, 846 (1936).
"`This exclusionary
rule is simply an application of
the character rule which forbids the state
to prove the
accused's bad character by particular deeds.
The basis
for the rule lies in the belief that the prejudicial
effect of prior crimes will far outweigh any
probative
value that might be gained from them.
Most agree that
such evidence of prior crimes has almost an
irreversible
impact upon the minds of the jurors.'"
Ex parte Arthur, 472 So. 2d 665, 668 (Ala. 1985)(quoting Charles W.
Gamble, McElroy's Alabama Evidence, 69.01(1) (3d ed. 1977)).
"The well-established exceptions to the exclusionary
rule
include: (1) relevancy to prove identity;
(2) relevancy
to prove res gestae; (3)relevancy to prove
scienter; (4)
relevancy to prove intent; (5) relevancy to
show motive;
(6) relevancy to prove system; (7) relevancy
to prove
malice; (8) relevancy to rebut special defenses;
and (9)
relevancy in various particular crimes."
Stallworth v. State, 662 So. 2d 1222, 1224 (Ala. Crim. App.
1995)(quoting earlier cases). In this case, none of these
exceptions applies. The evidence concerning Drinkard's alleged
involvement with the stolen property in Robinson and Segar's home
is completely collateral to the crime with which he was charged.
The only argument made in favor of the introduction of evidence
concerning Drinkard's connection to the stolen property in Robinson
and Segar's home was that Drinkard had opened the door with his
cross-examination of Robinson.
In upholding the trial court's ruling on this issue, the Court
of Criminal Appeals relied on its opinion in Walker v. State, 631
So. 2d 294 (Ala. Crim. App. 1993). The Court of Criminal Appeals'
reliance on Walker is misplaced. In Walker, the defendant
successfully objected to the prosecutor's asking questions or
presenting evidence about the defendant's gang membership.
Thereafter, the defense repeatedly brought up the subject of the
defendant's gang membership. When the prosecution pursued the
subject, the defense objected; the trial court polled the jurors to
ascertain if they could put the improper comments out of their
minds. When the defendant raised the issue on appeal, the Court of
Criminal Appeals held:
"The appellant cannot be heard to complain
`"about
exploration of the issue ... which he himself
improperly
injected into the trial."[Citations omitted.]
"Rebuttal
evidence, even evidence of prior crimes, is
generally
admissible within the sound discretion of
the trial
court."'"
Walker v. State, 631 So. 2d at 301.
Drinkard did not improperly inject the issue of his prior
offenses into the trial. Drinkard elicited the remainder of the
conversation he had with Robinson. The Court of Criminal Appeals
recognized that nothing should prevent Drinkard from introducing
the remainder of that conversation. ___ So. 2d at ___. Therefore,
Drinkard did not inject the issue of his involvement in the thefts
or even the thefts themselves into the trial. He injected,
properly, his portion of a conversation where he referred to stolen
property at Beverly Robinson's home, in his answer given to
reassure her that Rex had probably not been arrested for the murder
of Pace.
The Court of Criminal Appeals also cited Stallworth v. State,
662 So. 2d 1222, 1224 (Ala. Crim. App. 1995) (where the evidence
was relevant to identity, as well as plan, scheme, or system), and
Sistrunk v. State, 630 So. 2d 147 (Ala. Crim. App. 1993) (where the
evidence was admissible to explain away an adverse inference
created by the cross-examination of a prosecution witness), to
support the proposition that evidence of Drinkard's prior bad acts
was properly admitted. However, Stallworth is inapplicable,
because the fact that Drinkard would tell Beverly when people would
not be at home so that she and Rex could burglarize their homes
does not show a scheme or plan being used to prove identity, where
the victim, Pace, was robbed and murdered while he was at home.
Sistrunk is likewise inapplicable, because no adverse inference was
raised by Drinkard's cross-examination of Robinson.
Further, even if Drinkard had raised the issue, there are
several reasons why the State could not use the evidence. First,
the testimony elicited by Drinkard was limited to what was said in
a specific conversation. This testimony "opens the door" for the
State to elicit the remainder of that particular conversation. See
Logan v. State, 291 Ala. 497, 502, 282 So. 2d 898, 903 (1973)
("when the defendant, on cross-examination of a witness[,] elicits
part of a conversation, the State may in rebuttal show the entire
conversation"); Whitley v. State, 607 So. 2d 354, 360 (Ala. Crim.
App. 1992) ("The state, however, is limited to introducing `only so
much of the remainder of the statement or conversation ... as
relates to the subject-matter of the part brought out by the
[defendant].'"). Testimony about a particular conversation,
however, does not grant the State free reign to go outside the
conversation and bring in extrinsic evidence. "By its very terms,
the doctrine of completeness relates only to matters contained in
a single conversation." Dawson v. State, 675 So. 2d 897, 905 (Ala.
Crim. App. 1995)(opinion on application for rehearing). Second,
the State was not rebutting anything brought out by Drinkard on
cross-examination. Drinkard did not elicit evidence indicating
that he had never been involved in the burglaries or that he had
never burglarized homes. He simply inquired further into a
conversation that the State had introduced. Third, the State was
not attempting to explain any adverse inferences raised by the
cross-examination. The State was not trying to disprove that
portion of the conversation. Defense counsel's question to Robinson
dealing with her conversation with Drinkard about Segars did not
raise any adverse inference as to Robinson's direct testimony.
We hold today that when the prosecution introduces only part
of a defendant's confession and the defendant exercises the right
to introduce the whole of the conversation, as it relates to the
subject matter of the part introduced by the State, the prosecution
cannot claim later that the defense injected the information. Had
the State itself introduced the entire conversation between
Robinson and Drinkard, including Drinkard's statements about the
stolen property at Robinson's house, the State could not have then
explained Drinkard's knowledge of the stolen property through
evidence indicating his involvement in prior thefts. The State
introduced part of the conversation. Drinkard was entitled to
elicit the remainder of the conversation. He did not improperly
inject into the trial the issue regarding the burglaries.
Therefore, the trial court erred when it allowed the State to
examine Robinson concerning Drinkard's prior offenses.
This Court has held that the exclusionary rule prevents the
State from using evidence of a defendant's prior bad acts to prove
the defendant's bad character and, thereby, protects the
defendant's right to a fair trial. See Ex parte Cofer, 440 So. 2d
1121, 1123 (Ala. 1983).
"Evidence of prior bad acts of a criminal defendant
is
presumptively prejudicial to the defendant.
It
interjects a collateral issue into the case
which may
divert the minds of the jury from the
main issue.
Kilpatrick v. State, 51 Ala. App. 352, 285
So. 2d 516
(1973), cert. denied, 291 Ala. 628, 285 So.
2d 525
(1973). Therefore the admission of such evidence
constitutes reversible error. Hinton v. State,
280 Ala.
48, 189 So. 2d 849 (1966)."
Ex parte Cofer, 440 So. 2d at 1124. See also Ex parte Lacy, 639
So. 2d 951 (Ala. 1993); Ex parte Smith, 581 So. 2d 531, 534 (Ala.
1991); Ex parte Arthur, 472 So. 2d 665 (Ala. 1985); Dozier v.
State, 596 So. 2d 49 (Ala. Crim. App. 1991). The prejudicial
effect of the evidence offered by the State, evidence indicating
that Drinkard had participated in burglaries with Robinson and
Segars, requires that Drinkard's conviction be reversed and this
case remanded for a new trial.
II.
Although we reverse for the reasons stated above, we address
the following additional issues because they will probably come up
again on a new trial: (A) Was the grand-jury foreperson chosen in
a racially discriminatory manner? (B) Should this Court overrule
its decision in Ex parte Stewart, 730 So. 2d 1246 (Ala. 1998)? (C)
Did the state improperly strike jurors on the basis of race and
gender?
A. Choosing The Grand-Jury Foreperson
Drinkard was indicted by a Morgan County grand jury. He
claims that the manner by which the grand-jury foreperson in his
case was selected violates the Equal Protection Clause of the
Fourteenth Amendment and his due-process rights guaranteed by the
United States Constitution; the Alabama Constitution; and other
Alabama law. We address this issue because it remains justiciable
with respect to the indictment by which Drinkard was charged.
Although Drinkard is white, he has standing to challenge the
alleged discriminatory exclusion of blacks from a grand jury, on
the basis of equal-protection guarantees. The United States Supreme
Court has held recently that a white defendant "has standing to
raise an equal protection challenge to discrimination against black
persons in the selection of his grand jury." Campbell v.
Louisiana, ___ U.S. ___, 118 S. Ct. 1419, 1424 (1998). In
Campbell, however, the Supreme Court did not hold that a defendant
has standing to raise an equal-protection issue by a challenge to
the selection of the grand-jury foreperson. Campbell, ___ U.S. at
___, 118 S. Ct. at 1423-25. Because we hold that the method of
selecting grand-jury forepersons in Morgan County is not
discriminatory, we need not today determine if a white defendant
has standing to raise an equal-protection challenge.
The State argues that this Court has previously held that the
method of selecting grand-jury forepersons in Morgan County was not
discriminatory. See Pace v. State, 714 So. 2d 332 (Ala. 1997).
Drinkard argues that our holding in Pace merely dealt with the
application of the plain-error doctrine to the issue. In Pace,
this Court held that there had been a history of discrimination in
the selection of grand-jury forepersons in Morgan County, but it
did not reverse the Court of Criminal Appeals' affirmance of the
defendant's conviction, because the defendant had not properly
preserved the issue for appeal. We held that the discrimination
did not rise to the level of plain error. Drinkard objected to the
manner by which the foreperson of the grand jury that returned the
indictment against him was selected. Therefore, the plain-error
analysis of Pace does not apply here.
We must still answer the question whether the manner by which
the grand-jury foreperson was selected was discriminatory, using
the criteria applied by the United States Supreme Court in Rose v.
Mitchell, 443 U.S. 545, 565 (1979). The United States Supreme
Court in Rose set forth three criteria for determining if the
defendant has made a prima facie showing that the manner of
selecting a grand-jury foreperson is racially discriminatory:
"`The first step is to establish that the group
is one
that is a recognizable, distinct class, singled
out for
different treatment under the laws, as written
or as
applied. ... Next, the degree of underrepresentation
must be proved, by comparing the proportion
of the group
in the total population to the proportion
called to serve
as [foreman], over a significant period of
time. ... This
method of proof, sometimes called the "rule
of
exclusion," has been held to be available
as a method of
proving discrimination in jury selection against
a
delineated class. ... Finally ... a selection
procedure
that is susceptible of abuse or is not racially
neutral
supports the presumption of discrimination
raised by the
statistical showing.'"
Rose v. Mitchell, 443 U.S. at 565 (quoting Castaneda v. Partida,
430 U.S. 482, 494 (1977)).
First, it has been long established that African-Americans
make up a recognizable, distinct class. Second, we must analyze
the history of discrimination. Before our holding in Pace, there
had never been a black grand-jury foreperson in Morgan County.
Drinkard was tried in 1995, the same year this Court, in Pace,
addressed Morgan County's method of selecting grand-jury
forepersons; this means that at the time of Drinkard's indictment
there was no record indicating any black had ever served as grand-
jury foreperson in Morgan County. Because 10% of the population in
Morgan County is black, before 1997 there was a marked degree of
underrepresentation.
However, the third criterion is whether the selection method
is "susceptible of abuse or is not racially neutral." Morgan
County has recently changed its method of selecting grand-jury
forepersons. Before 1993, the trial court appointed grand-jury
forepersons, based on the recommendation of the prosecutor. Since
that time, grand-jury forepersons have been selected by the members
of the grand jury itself. As we noted in Pace, the "new procedure
[in which the grand-jury members themselves choose the grand-jury
foreperson] should limit any appearance of discrimination in the
judicial process." 714 So. 2d at 338, n.6.
Allowing the grand jury the freedom to choose its own foreman
forecloses a question of discrimination in the judicial process.
However, even if we assumed that such discrimination did occur, we
would hold, as the United States Supreme Court did in Hobby v.
United States, 468 U.S. 339, 346 (1984), that because of the
ministerial function of grand-jury forepersons in Alabama, there is
no invasion of the "the distinctive interests of the defendant
protected by the Due Process Clause."
In Hobby, the United States Supreme Court proceeded on the
assumption that discrimination had occurred in the selection of the
grand-jury foreperson. Today, we use the Supreme Court's analysis
to determine if Drinkard's indictment should be dismissed. When
determining if such discrimination requires the dismissal of an
indictment, the Supreme Court in Hobby looked at two factors:
First, was the grand jury itself properly constituted? Second, did
the grand-jury foreperson have more than a ministerial function in
the grand-jury process?
The Court in Hobby looked at the constitution of the grand
jury itself because "[t]he due process concern that no `large and
identifiable segment of the community [be] excluded from jury
service,' Peters v. Kiff, 407 U.S. [493], at 503 [(1972)], does not
arise when the alleged discrimination pertains only to the
selection of a foreman from among the members of a properly
constituted federal grand jury." 468 U.S. at 345. Drinkard has
not shown that the grand jury itself was improperly constituted.
Indeed, the record indicates that of the 18 grand-jury members, 2
were black, and that blacks make up only 10% of the population in
Morgan County. Therefore, the grand jury itself was an appropriate
representation of the community as a whole and was properly
constituted.
Second, the Supreme Court in Hobby held that, given the
ministerial role of a federal grand-jury foreman, "discrimination
in the selection of one person from among the members of a properly
constituted grand jury can have little, if indeed any, appreciable
effect upon the defendant's due process right to fundamental
fairness." 468 U.S. at 345. The United States Supreme Court
distinguished the role of the federal grand-jury foreman, as
discussed in Hobby, from the role of a Tennessee grand-jury
foreman, as discussed in Rose v. Mitchell, supra:
"Under the federal system, by contrast, the
foreman is
chosen from among the members of the grand
jury after
they have been empaneled, see Fed. Rule Crim.
Proc. 6(c);
the federal foreman, unlike the foreman in
Rose, cannot
be viewed as the surrogate of the judge.
So long as the
grand jury itself is properly constituted,
there is no
risk that the appointment of any one of its
members as
foreman will distort the overall composition
of the array
or otherwise taint the operation of the judicial
process."
Hobby, 468 U.S. at 348. This Court in Pace examined the role of the
grand-jury foreperson that was discussed in Rose v. Mitchell and
compared that to the role of the grand-jury foreperson in Alabama:
"In Rose, the Supreme Court noted that Tennessee
grand
jury forepersons, in addition to the ministerial
functions of presiding over the grand jury,
administering
oaths to witnesses, and signing indictments
and
subpoenas, had a substantive duty to assist
the district
attorney in the investigation of crimes. 443
U.S. at 548,
n.2. In contrast, Alabama grand jury
forepersons have no
duty to assist the district attorney in the
investigation
of crimes and are generally limited to merely
reporting
grand jury votes and signing the appropriate
paperwork
prepared by the court or the district attorney.
Rule
12.5, Ala. R. Cr. P.
"... Unlike
the dominant and authoritative role the
Tennessee grand jury foreperson played in
Rose, the role
of the grand jury foreperson in this case
was to perform
merely ministerial tasks. The Tennessee
grand jury
foreperson in Rose had a virtual veto power
over the
indictment process because under Tennessee
law the
failure of the foreperson to sign an indictment
renders
the indictment `fatally defective.'
443 U.S. at 548,
n.2. In contrast, the role of
a grand jury foreperson
in Alabama is so ministerial that even his
or her failure
to participate in deliberations and to vote
with the
panel is not fatal to the indictment. ...
Noah [v.
State, 494 So. 2d 870 (Ala. Crim. App. 1986)]."
Pace, 714 So. 2d at 338.
This Court concluded in Pace that "[i]n this state, the
function of a grand jury foreperson is almost entirely ministerial
in nature, very similar to that of a federal grand jury
foreperson." 714 So. 2d at 336. Because the grand jury itself was
properly constituted and the grand-jury foreperson in Alabama
performs a ministerial function similar to that of the foreperson
in the federal court, we conclude that the grand jury in Drinkard's
case was not tainted to the point that Drinkard's due-process
rights were infringed.
B. Allowing the Jury to Separate Over Objections of the Defense
and the Prosecution
Drinkard contends that the trial court erred by allowing the
jury to separate, over the objections of both the defense and the
prosecution. The Court of Criminal Appeals correctly stated in its
opinion that this Court had recently addressed that issue and had
decided it in a way that was adverse to Drinkard. We addressed the
issue in Ex parte Stewart, 730 So. 2d 1246 (Ala. 1998), where we
held that a trial court may allow the jury to separate over defense
counsel's objections. Drinkard asks us to reconsider our holding
in that case. Stewart provided the correct interpretation of the
interplay between this Court's rules, "general act[s] of statewide
application," and the Alabama constitution. See Ala. Const. Amend.
328, 6.11.
C. Alleged Violations of Batson v. Kentucky[1]
Drinkard claims that the State struck prospective jurors based
on gender and race. He relied on the fact that the State
peremptorily struck four of six black veniremembers and struck six
females. Drinkard, however, objected only to two of the six
strikes of females, and the trial court held that he had made no
prima facie showing of discrimination based on gender. The trial
court acknowledged that the strikes against the four black
veniremen "supplied an inference of discrimination." See Drinkard
v. State, __ So. 2d at __.
The prosecution then provided its explanations for the
strikes. As to three of the struck jurors, Mr. L., Ms. S., and Ms.
T., the prosecution stated valid race-neutral reasons that were
discussed during voir dire.[2] These three jurors had either
expressed doubt about their ability to impose the death penalty or
had relatives that had been murder victims. However, the
prosecution's reason for striking the fourth juror, Mr. T. -- his
involvement with law enforcement and his position as a radio talk-
show host -- is unsubstantiated by the record. We have said
repeatedly that "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."
Ex parte Bird, 594 So 2d 676, 683 (Ala. 1991), citing Ex parte
Branch, 526 So. 2d 609 (Ala. 1987). "The trial judge cannot
merely accept the specific reasons given by the prosecutor at face
value ...." Ex parte Branch, 526 So. 2d at 624. While we
understand that the publicity surrounding Mr. T. and his
involvement with the Decatur police might be common knowledge, to
allow a peremptory strike on that basis would encourage the use of
presumption instead of documentation to support the prosecutor's
reasons for striking a juror. If Mr. T's activities cause the
prosecutor to have concerns about his ability to be fair, then "a
simple question directed to the veniremember could have dispelled
any doubt" about his ability to hear the case fairly. Ex parte
Bird, 594 So. 2d at 683. However, the State referred to an answer
given by Mr. T., which the prosecutor believed indicated that Mr.
T. would hold the testimony of the police officers to a tougher
standard. The trial judge agreed that the State had given a race-
neutral reason. We can reverse a trial court's determination on a
Batson issue only if it is "clearly erroneous"; therefore, we
cannot hold that there was a Batson violation in this instance. Ex
parte Branch, 526 So. 2d at 625. We address the issue to make clear
the point we made in Ex parte Branch:
"The trial judge cannot merely accept the specific
reasons given by the prosecutor at face value;
the judge
must consider whether the racially neutral
explanations
are contrived to avoid admitting acts of group
discrimination. This evaluation by the
trial judge is
necessary because it is possible that an attorney,
although not intentionally discriminating,
may try to
find reasons other than race to challenge
a black juror,
when race may be his primary factor in deciding
to strike
the juror."
526 So. 2d at 624 (citations omitted).
Summary
The introduction of evidence concerning Drinkard's involvement
with unrelated thefts was unduly prejudicial and constituted
reversible error. The method of selecting a grand-jury foreperson
was not constitutionally improper, and the indictment by which
Drinkard was charged is valid. Therefore, the Court of Criminal
Appeals ruled correctly in regard to the method of selecting a
grand-jury foreperson and correctly ruled that the indictment was
valid. Because of the improper introduction of evidence, we
reverse the Court of Criminal Appeals' judgment affirming
Drinkard's conviction and sentence. The cause is remanded for
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Maddox, Houston, and See, JJ., concur.
Johnstone, J., concurs specially.
Cook, J., concurs in part.
Lyons, J., concurs in the result.
Brown, J., recuses herself.
JOHNSTONE, Justice (concurring specially).
I concur, with the one reservation that a venireperson's
having a relative who had been a murder victim would not seem to be
a race-neutral reason for the State to strike that venireperson, as
the main opinion seems to hold in Part II. C. A venireperson's
revealing the murder of a relative might prompt the State to ask
follow-up questions which might, in turn, reveal a race-neutral
reason for a peremptory strike, such as some emotional or spiritual
reaction by the venireperson or some disappointment directed
against the police or prosecutors; but, in the case before us, the
State apparently did not conduct such a follow-up inquiry or base
its peremptory strikes on such follow-up information.
COOK, Justice (concurring in part).
I agree that Drinkard's conviction is due to be reversed
because evidence of his past bad acts was improperly admitted.
Thus, I concur in Part I.
I express no opinion on the matters addressed
in Part II.
1. 476 U.S. 79 (1986).
2. In discussing Mr. L., the prosecutor first stated that he
believed Mr. L.'s answer to a question about criminal charges was
untruthful, "according to a police officer." Absent further
information or "meaningful voir dire" on the subject, this reason
alone would be insufficient to overcome a presumption of
discrimination. See Ex parte Branch, 526 So. 2d 609, 623 (Ala.
1987); Bush v. State, 615 So. 2d 137, 140 (Ala. Crim. App. 1992);
Walker v. State, 611 So. 2d 1133, 1140 (Ala. Crim. App. 1992) ("A
prosecutor cannot simply presume, without further questioning to
`dispel any doubt,' that a veniremember, who is under oath, did not
answer a question truthfully merely because the prosecutor has
hearsay evidence to the contrary.").
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