Opposition Brief — Gregory Lance Henderson, Petitioner v. Alabama

No. 17-7546

In the Supreme Court of the United States

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GREGORY HENDERSON,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

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On Petition for Writ of Certiorari to the

Alabama Court of Criminal Appeals

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BRIEF IN OPPOSITION

──────────────────────────

STEVE MARSHALL

Alabama Attorney General

James Roy Houts*

Deputy Attorney General

OFFICE OF ALABAMA ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

jhouts@ago.state.al.us

*Counsel of Record

February 22, 2018

Counsel for State of Alabama

CAPITAL CASE

CAPITAL CASE

QUESTION PRESENTED (REPHRASED)

Did the Alabama Court of Criminal Appeals err when it denied Petitioner’s

Batson claim under Alabama’s plain-error standard of review, where the record

establishes that Henderson twice informed the trial court, after jury selection, that

he had no motions pertaining to the selection of the jury?

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TABLE OF CONTENTS

QUESTION PRESENTED (REPHRASED)............................................................................... i

TABLE OF AUTHORITIES...................................................................................................iii

STATEMENT OF THE CASE................................................................................................ 1

REASONS FOR DENYING THE WRIT...................................................................................3

CONCLUSION....................................................................................................................7

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TABLE OF AUTHORITIES

Cases

Batson v. Kentucky, 476 U.S. 79 (1986) ........................................................................ 3

Floyd v. Alabama, 138 S. Ct. 311 (2017)....................................................................... 3

Foster v. Chatman, 136 S. Ct. 1737 (2016) ............................................................... 3, 5

Henderson v. State, __ So. 3d __, 2017 WL 543134 (Ala. Crim. App. Feb.

10, 2017) ..................................................................................................................... 2

Hernandez v. New York, 500 U.S. 352 (1991) ............................................................... 6

Miller-El v. Drake, 545 U.S. 231 (2005) ........................................................................ 5

Puckett v. United States, 556 U.S. 129 (2009) .............................................................. 5

Snyder v. Louisiana, 552 U.S. 472 (2008)................................................................. 4, 5

United States v. Wells, 519 U.S. 482 (1997).................................................................. 5

Rules

Alabama Rules of Appellate Procedure

Rule 45A ......................................................................................................................... 4

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STATEMENT OF THE CASE

A Lee County, Alabama, grand jury returned an indictment against Petitioner

Gregory Henderson for the capital murder of an on-duty law enforcement officer.

Jury selection began on September 26, 2011, and the process included juror responses

to a seven-page questionnaire consisting of fifty-three questions. After the trial court

and both parties conducted additional questioning of the venire, the trial court

excused some potential jurors, and others were struck for cause. Thereafter, each side

executed twelve peremptory challenges to select the petit jury.

After the jury was empaneled, the trial court asked if either party had any

matter to bring to the court’s attention. Henderson indicated that he had no motions

to make following jury selection. Nonetheless, the prosecutor provided the court her

reasons for striking potential jurors. After hearing the State’s proffer, the trial court

asked if either party had anything else to bring to the court’s attention, and

Henderson again declined to make any motion.

Thereafter, Henderson’s trial commenced. After several days of testimony and

argument, a jury convicted Henderson of capital murder as charged in the indictment.

The penalty phase of trial began on October 5. The jury, by special interrogatory,

found that Henderson committed the capital offense while he was under a sentence

of imprisonment, that he had previously been convicted of a felony involving violence

or the threat of violence to another person, that he committed the murder for the

purpose of avoiding or preventing lawful arrest or to effect an escape from custody,

and that he committed the offense in order to hinder or disrupt the lawful exercise of

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a government function or enforcement of the laws. The jury did not unanimously

agree that the murder was especially heinous, atrocious and cruel.

The jury

recommended a sentence of life without parole by a vote of nine in favor of life without

parole and three in favor of death.

A sentencing hearing was held on July 27, 2012, whereupon the State

presented additional witnesses and supporting evidence. After taking evidence, the

trial court continued sentencing until September 20, with a request for further

briefing by the parties. On September 20, the trial court rejected the jury’s

recommendation and sentenced Henderson to death based on the aggravating factors

the jury found to exist. The trial court entered a thorough sentencing order detailing

its reasons for sentencing Henderson to death.

Henderson timely appealed to the Alabama Court of Criminal Appeals. After

receiving the benefit of oral argument, that court affirmed Henderson’s conviction

and sentence of death. Henderson v. State, __ So. 3d __, 2017 WL 543134 (Ala. Crim.

App. Feb. 10, 2017). Henderson applied for rehearing, but his application was

overruled. Thereafter, Henderson petitioned the Alabama Supreme Court for

certiorari review, which was declined. Henderson then petitioned this Court for

certiorari review.

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REASONS FOR DENYING THE WRIT

Henderson’s petition appears to concede that he does not seek certiorari review

pursuant to one of the compelling reasons outlined in Rule 10 of this Court’s rules.

Instead, his petition is based on an allegedly erroneous application of Batson v.

Kentucky, 476 U.S. 79 (1986), seeking either a de novo review of his Batson claim or

a remand for a rehearing on this issue. (Henderson’s Pet. 9-10.) For the following

reasons, Henderson’s petition does not present one of the rare cases where certiorari

should be granted on the basis of such case-specific grounds.

Henderson cites to this Court’s recent decision in Foster v. Chatman, 136 S. Ct.

1737 (2016), and Justice Sotomayor’s special writing in Floyd v. Alabama, 138 S. Ct.

311 (2017), to support his bald accusation that Alabama’s appellate courts are

composed of careless judges who abdicate their responsibility to uphold the

constitutional rights of defendants and potential jurors. (Henderson’s Pet. 8-9.) But

the rhetoric he employs in the opening paragraph of his reasons for granting the writ

must be viewed as the distraction it is intended to be, as it can only be assumed that

this ad hominem attack on Alabama’s intermediate criminal appeals court is offered

in the hope that this Court will not hold him to account for his own conduct.

Henderson never asserted a Batson challenge in the trial court. After the jury

was struck, the trial court asked, “Any motions?” Counsel for Henderson stated that

he had no motion for the court. Even so, the prosecutor elected to place her reasons

for each strike on the record. Thereafter, Henderson again informed the trial court

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that the defense had no response to the State’s proffer. The jury was then empaneled

without objection.

Henderson’s Batson challenge was brought on appeal under Alabama’s plainerror standard of review, applicable only to cases involving prisoners sentenced to

death. See Ala. R. App. P. 45A. Here, that review was complicated by the fact that the

trial court was never asked to determine whether a prima facie case of discrimination

existed. Even when the prosecutor placed her reasons for each strike on the record,

Henderson did not attempt to challenge them as being pretextual. Considering that

“[o]n appeal, a trial court’s ruling on the issue of discriminatory intent must be

substantiated unless it is clearly erroneous,” Snyder v. Louisiana, 552 U.S. 472, 477

(2008), it would be difficult to fault the Alabama Court of Criminal Appeals for

affirming under this standard of review, as further constrained by the narrower

“plain error” state-court standard applicable to this claim. Unless the trial court

committed clear error by not declaring that the state’s strikes were motivated by race,

both sua sponte and without any input from the defense, Henderson cannot prevail.

Certiorari should be denied in consideration of the invited-error doctrine. Not

once, but twice, Henderson affirmatively represented to the trial court that he had no

objection to the jury-selection process. Once the prosecutor provided her reasons for

her strikes, Henderson was in a perfect position to inform the trial court of any

alleged pretext, inconsistencies, or other seemingly disparate treatment of jurors that

were not adequately addressed by the State’s proffer. After all, the trial court “is

ordinarily in the best position to determine the relevant facts and adjudicate the

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dispute.” Puckett v. United States, 556 U.S. 129, 134 (2009). Instead, Henderson

engaged in conduct this Court has described as “sandbagging,” whereby a defendant

remains “silent about his objection and belatedly rais[es] the error only [when] the

case does not conclude in his favor.” Id.

This Court does not view invited-error as an absolute bar to the consideration

of an issue, but rather as a consideration bearing on the appropriateness of granting

certiorari. See United States v. Wells, 519 U.S. 482, 488 (1997). In this case, this

consideration is due considerable weight because Henderson’s conduct prevents a

review of this issue that would genuinely be oriented toward discerning the truth.

Unlike the situation this Court faced in Foster v. Chatman, 136 S. Ct. 1737,

1743 (2016), where “Foster immediately lodged a Batson challenge,” Henderson was

not so moved by the State’s jury-selection practices. Similarly, in Snyder this Court

noted that defense counsel disputed the State’s proffered race-neutral reasons for its

strikes, Snyder, 552 U.S. at 479, far different from Henderson’s explicit acceptance of

the State’s proffered reasons for its strikes. Even in Miller-El v. Drake, 545 U.S. 231,

245 (2005), a Batson analysis complicated by the fact that jury selection had occurred

two years prior to Batson’s existence, this Court relied on defense counsel’s “point[ing]

out that the prosecutor had misrepresented [a potential juror’s] responses on [a]

subject” in response to the prosecutor’s stated reasons for a strike. There, when the

prosecutor was confronted by defense counsel “he neither defended what he said nor

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withdrew the strike.” Id. at 246. Here, neither the State nor the judge were confronted

by Henderson at all.

Even Henderson’s reliance on Hernandez v. New York, 500 U.S. 352 (1991), is

misplaced in the light of his affirmatively stating that he had no objection to the juryselection process. In Hernandez, the prosecutor’s motive to provide race-neutral

reasons was the defendant’s Batson motion, which is not the case here. Id. at 356.

But even if a prosecutor’s statement of reasons in the absence of a Batson challenge

nonetheless renders step one of the Batson inquiry moot, the step-three analysis must

still be informed by a defendant’s response to the proffered reasons as being

pretextual. In Hernandez, the defendant’s response was to move “for a mistrial ‘based

on the conduct of the District Attorney’” and a subsequent renewal of that motion. Id.

at 357. In Henderson’s case, however, the response to the prosecutor’s stated reasons

was to inform the court that he was ready for trial. Henderson never directed the trial

court to any alleged discriminatory treatment or practice.

Henderson does not offer this Court any compelling reason to grant certiorari

to review his claim. Even to the extent this Court is required on rare occasions to

intervene in fact-bound cases to avoid miscarriages of justice, Henderson’s refusal to

make a Batson challenge at trial, choosing instead to sandbag the issue on appeal,

removes his case from the sphere of such cases. Furthermore, the state-law “plain

error” standard of review that applied to Henderson’s Batson claim on appeal, due to

his affirmative misrepresentations to the trial court, warrants denial of the writ.

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CONCLUSION

For the above-mentioned reasons, this Court should deny the petition.

Respectfully submitted,

STEVE MARSHALL

Alabama Attorney General

/s/ James Roy Houts

James Roy Houts*

Deputy Attorney General

OFFICE OF ALABAMA ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

jhouts@ago.state.al.us

Counsel for State of Alabama

*Counsel of Record

February 22, 2018

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