Appendix — Alabama v. Harrell

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90-1495

FEB 25 1991

| OFFICE OF THE CLERK

NO.

IN THE SUPREME COURT OF TRE

UNITED STATES

OCTOBER TERM, 1990

STATE OF ALABAMA

PETITIONER,

JOE LOUIS HARRELL

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT AND COURT

OF CRIMINAL APPEALS OF ALABAMA

APPENDIX TO THE PETITION

JAMES H. EVANS

ATTORNEY GENERAL

AND

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR PETITIONER

ADDRESS OF COUNSEL

Office of the Attorney General

Alabama State House

ll South Union Street

Montgomery, Alabama 36130

(205) 242-7300

APPENDIX A,

TABLE OF APPENDICIES

OPINION IN HARRELL I,

ON ORIGINAL SUBMISSION.........

APPENDIX B,

APPENDIX C,

APPENDIX D,

APPENDIX E,

APPENDIX F,

APPENDIX G,

ORDER OF THE CIRCUIT

COURT OF MOBILE COUNTY ON

REMANDEMENT ......0cccccecs

OPINION IN HARRELL III....

OPINION IN HARRELL IV.....

ORDER DENYING STAY........

RELEVANT ALABAMA STATUTES

TITLE 12, SECTION 12-16-100....

TITLE 13A, SECTION 13A-12-212..

APPENDIX H,

APPENDIX I,

CERTIFICATE

SECTION 13A-12-213..

SECTION 13A-12-214..

IN RE: FACTORS FOUND BY

THE ALABAMA SUPREME COURT TO

INDICATE DISCRIMINATORY

or eA

OPINION IN EX PARTE YELDER

SO.2D (ALA, JAN. ll,

St ee es & Whe 0006s ome 2 os

APPENDIX A

[RELEASED: MARCH 31, 1989]

THE STATE OF ALABAMA - JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, }QRR-RGD

Joe Louis Harrell]

St ate

Appeal from Mobile Circuit Court

BOWEN, JUDGE

Joe Louis Harrell was convicted for the

unlawful possession of cocaine in violation of

Ala. Code 1975, §13A-12-212, and sentenced to

30 years’ imprisonment. He was also convicted

of possession of marijuana in the second degree

in violation of Ala. Code 1975, §13A-12-214,

and sentenced to six months’ imprisonment

Harrell raises six issues on this appeal from

those convictions.

The defendant argues that the prosecutor

used five of its peremptory challenges in a

racially discriminatory manner in violation of

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.

1712, 90 L. Ed. 2d 69 (1986), and Ex parte

Branch, 5 So. 2d 609 (Ala. 1987). We find

that this matter has not been preserved for

review.

The record shows that, after the jury

had been selected, the following occurred:

"MR. DEEN [Defense Counsel]: If we

could approach before you swear'em in.

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“(The Judge exits the courtroom. )

"MR. DEEN: The Defendant objects to

the empanelling of this jury. My

objection was reserved pr! ior to the

jury being sworn in and this is my

opportunity to state the grounds.”

Defense counse. then stated the qrounds

of his objection, after which the prosecutor!

responded by giving the reasons why she struck

the five black venire persons. After the

prosecutor's comments appears the following:

"(Lunch recess.)" When the trial resumed

there was no mention of the Batson issue. In

fact our review of the record discloses no

additional reference to this matter! There 1S

no indication in the record that

judge ever ruled on this obiectio

"An adverse ruling is 24 Pp!

requirement to preservation of eI!

appellate review. Absent an

rulina the issue of the obiection

hefore this court.” Van

properly

the trial

eliminary

ror and

adverse

is not

Anrwerp

State

dene

(Ala.

where

Holl

(Ala.

rudase

dist

his

the

- 358 So.2d 782, 190 (Ala. Ap )

cd, Ex parte Van Antwerp, 358 J

1978) "A party cannot claim err

> no adverse ruling 18S made against

way Robertson, %00 gd 1056,

19R6) An adverse rulinda by the +t

> 1S a prerequisite for preserving ¢t

qed error for appellate re Bo!

> "S72 Se gd SOR. 5 } (j FR Os py

is no contention that the trial re

nsider or rule on the hyectior

ie a fundamental principle f

late review that the re ewing wy

1 by the record "The ippellant has:

of checking his record before subm}

ippeal io oa hi irden t f

ct record.” Tyus State, 34/7

1380 (Ala.Cr.App.). cert. denied,

» Tyus, 347 S 1 1384 (Ala. 1977)

The record on appeal doe not '

ir lire of the dury enire hal

does not disclose the racial composition of

either the venire or the trial jury. The

record does show that the trial judge did not

hear or rule on the grounds of the defendant's

Batson objection.

Although we strongly disapprove of the

handling of the Batson objection in this case,

the record contains no objection to the

procedure followed in the trial court

Under these circumstances, the record

before this Court does not permit a finding of

error

The defendant argues that his

‘conviction for possession cannot stand because

the contraband was not abandoned property and

because the seizure of that property was the

result of a prior illegal search.

On January 2, 1988, Mobile Police

Officer Ronald Burch went to a “skinhouse”™ in

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made no arrests and left the premises.

However, he testified that he decided “to

remain in the area because . . the

information I received, I felt like

good informat} nN . i Was qaoind to remaln 1 Ti

the area to see if I ‘ould make an arrest

later

The “skinhouse” was a resident 11-type

of house although no one lived there It was

rented by a man named Cornelius Senior!

Officer Burch “circled the block a

couple of times” and “more oO! less hung around

in the area.” A short time after he left the

house, Officer Burch observed the defendant

standing at the passenger's side of a ca! with

the door open The defendant looked at

Officer Burch, turned, and “hollered

something.” The defendant got inside the

car. As the car was being driven away

Officer Burch observed the passenger door open

and saw the defendant “throw home articles to

the ground.” These articles were “several

clear plastic packages” which were later

discovered to contain marijuana and crack

cocaine. The officer picked up a package and

began pursuing the vehicle. During this

pursuit, the defendant exited the car but was

soon arrested, as were the other two occupants

of the car.

We agree with the Attorney General in

his argument that the defendant had no

standing to object to the search at the

skinhouse.

Officer Burch's mere presence in the

skinhouse was not a search. Maryland v.

Macon, 472 U.S. 463, 468-69, 105 S.Ct. 2778,

2781, 86 L.Ed.2d 370 (1985). "If a police

officer has entered as would any member of the

public, it is not a search for the officer to

conduct himself therein as might be expected

of any other person who would enter.” WwW.

LaFave, 1 Search and Seizure, §2.4(b) at 430

(2nd ed. 1987). “Quite clearly, the officer

is ‘entitled to take note of objects in plain

view.’ He may also examine merchandise in the

same fashion that a prospective customer could

be expected to do." Id.

The defendant has made no showing that

he had any standing to object to what occurred

in the skinhouse. From the record:

“THE COURT: Is there any reasonable

expectation of privacy in this place?

“MR. DEEN [Defense Counsel]: We don't

know.” ‘

The defendant has failed to carry his burden

of proving that he had a legitimate

expectation of privacy in the skinhouse.

Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100

S.Ct. 2555, 2561, 65 L.Ed.2d 633 (1980);

Collier v. State, 413 So.2d 396, 400

(Ala.Cr.App. 1981), affirmed, Ex parte

Collier, 413 So.2d 403 (Ala. 1982). -“Whether

[the defendant] was .egitimately on the

premises is a relevant but not controlling or

determinative factor in deciding one's

expectation of privacy.” Collier, 413 So.2d

at 400; Ramires v. State, 492 So.2d 615, 619

(Ala.Cr.App. 1985). Merely “[bleing a

frequent visitor to premises is not sufficient

to bring into play the Fourth Amendment rights

against unreasonable search and seizure.”

Grice v. State, 527 So.2d 784, 787

(Ala.Cr.App. 1988).

The seizure of the packages of

marijuana and cocaine discarded by the

defendant was proper under the abandoned

property exception to the general rule

requiring a search warrant. Barrow v. State,

494 So.2d 834, 836 (Ala.Cr.App. 1986);

Mitchell State, 423 So.2d 904 (Ala.Cr.App.

1982). Compare Harrell] v. State, 475 So.2d

650 (Ala.Cr.App. 1985), involving this same

defendant.

"“"In the law of search and seizure

the question is whether the defendant

has, in discarding the property,

relinquished his reasonable expectation

of privacy so that its seizure and

search is reasonable within the limits

of the Fourth Amendment. * * * In

essence, what is abandoned is not

necessarily the defendant's property,

but his reasonable expectation of

privacy therein.

"*'Where the presence of the

police is lawful and the discard

eccurs in a public piace where

the defendant cannot reasonably

have any continued expectancy of

privacy in the discarded

property, the property will be

deemed abandoned for _purposes of

search and seizure. Ww.

LaFave, 1 Search and Seizure

§2,6(b) at 465, quoting from City

of St. Paul v. Vaughn, 306 Minn.

337, 237 N.W.2d 365 (1975).

IIT

The informant in this case was a mere

“tipster” and was not a participant in the

crime and did not provide probable cause for

the arrest. Therefore, the State was not

required to disclose his identity. Ex parte

493 So.2d 393 (Ala. 1986); Self v.

420 So. (Ala. 1982); Lightfoot v.

531 So.20d 57, 58-59 (Ala.Cr.App.

1988). In Pugh, 493 So.2d at 397, the Alabama

Supreme Court rejected the proposition that

disclosure of the informant's identity is

required when that identity is sought on the

issue of probable cause aml where the State

has made no showing of probable cause apart

from the informant's identification. “In

Alabama, the question of disclosure or

nondisclosure of a confidential police

informant’s identity for the purposes of

challenging probable cause is a matter of

discretion for the trial court." Pugh, 493

So.2d at 397. The case of Hannah v. State,

497 So.2d 837 (Ala.Cr.App. 1986), relied on by

the defendant, is hereby overruled to the

extent that it conflicts with Pugh, supra.

The defendant's motion for a mistrial

was properly denied on two separate occasions.

Officer Burch testified that he went to

the skinhouse on the advice of an informant.

Defense counsel objected and requested a

mistrial. The trial judge sustained the

objection but denied the mistrial. The judge

then instructed the jury to disregard the

officer's response and polled the jury to

ensure that they could so do.

Contrary to the assertions of the

defendant, we consider the actions of the

trial judge sufficient to have cured any error

in the officer's testimony. Burnett v. State,

453 So.2d 371, 372-73 (Ala.Cr.App. 1984);

Waldrop v. State, 424 So.2d 1345, 1350

(Ala.Cr.App. 1982), cert. denied, Waldrop v.

Alabama, 472 U.S. 1019, 105 S.Ct. 3483, 87

L.Ed.2d 618 (1985).

The defendant's second request for a

mistrial was prompted when the prosecutor

asked defense witness Alex Ball, “Have you

been with the Defendant when he's been selling

drugs before?”

The trial judge sustained defense

counsel's objection and stated, “It certainly

assumed facts which are not in evidence.” The

trial judge then stated to the jury: “I don't

know why the question was asked. There's no

evidence of it. He's not on trial for

anything like that, ladies and gentlemen. So

I ask that you please disregard the question

opposed [sic] by the prosecutor." There was

no request by defense counsel for any

additional remedial action.

"The trial judge is in a better

position than an appellate court to determine

whether the remark was so prejudicial as to be

ineradicable. Moreover, there is a prima

facie presumption against error where the

trial court immediately charges the jury to

disregard the prosecutor's improper remark."

Wilson v. State, 428 So.2d 197, 200

(Ala.Cr.App. 1983); Ex parte Jefferson, 473

So.2d 1110, 1115 (Ala. 1985), cert. denied,

Jefferson v. Alabama, 479 U.S. 922, 107 S.Ct.

328, 93 L.Ed.2d 300 (1986).

a V

The prosecutor should not have been

permitted to ask defense witness Alex Bail,

“Have you ever been convicted of a felony or

crime involving moral turpitude?” Such a

question is improper. Agee v. State, 491

So.2d 1067, 1072 (Ala.Cr.App. 1986).

Ball responded that he had been

convicted of theft and possession of cocaine.

Theft is a crime involving moral turpitude,

evidence of which is therefore admissible to

impeach a witness. C. Gamble, McElroy's

Alabama Evidence, §145.01(9)(k) and (0) (3d

ed. 1977). The issue of whether the felony

possession of cocaine, not involving sale or

distribution, is a crime involving moral

turpitude for purposes of impeachment has not

been decided in this state. See Ex parte

McIntosh, 443 So.2d 1283, 1286 (Ala. 1983)

(felony possession of marijuana does not

involve moral turpitude).

However, the trial judge's error in

overruling the objection was harmless because

immediately before the prosecutor asked the

question Ball had testified without objection

that he was presently in jail for possession

of cocaine. “It is not error to allow the

Same facts to be again shown against objection

when they have already been proven without

objection.” Bush v. State, 282 Ala. 134, 139

209 So.2d 416 (1968). In his final .

instructions to the jury, the trial judge did

not charge on the principles of impeachment on

conviction of a crime. Rule 45, A.R.A.P.

The defendant was sentenced as a

habitual offender under Alabama's Habitual

Felony Offender Act. Because his offenses

were committed after October 21, 1987, the

effective date of the Drug Crimes Amendment

Act of 1987, Ala. Code (1975), §13A-12-210 et

seq., he was not due to be punished as a

repeat drug offender under the sentencing

provisions of the Controlled Substances Act.

Ex parte Chambers, 522 So.2d 313 (Ala. 1987).

See also Ex parte Brannon [Ms. 87-843,

February 10, 1989], So.2d (Ala.

1989).

The failure to object at the trial

court level to the adequacy of the notice

given and the method of proving prior offenses

under the Habitual Felony Offender Act. Rule

6(b)(3)(111), A.R.Cr.P.Temp., precludes

consideration of those issues on appeal.

Nichols v. State, 480 So.2d 82, 85

(Ala.Cr.App. 1985). Issues not raised at

trial will not be considered on appeal.

Jackson v. State. 502 So.2d 858, &6°

(Ala.Cr.App. 1986); Faircloth v. state, 47]

90.20 485, 493 (Ala.Cr.App. 1984), affi rmed,

Ex parte Faircloth, 471 So.2d 493 (Ala. 1985).

The judgment of the circuit cou) is

affirmed.

AFFIRMED.

All Judges concur.

[RELEASED MAY 12, 1989]

ON REHEARING

BOWEN, JUDGE

After our opinion on original

submission had been issued and with regard to

Part I of that opinion, Appellate counse]

filed a motion to correct the record which was

granted by the trial court.

The supplemental record shows that the

prosecution used five of its eight peremptory

challenges to remove blacks from the jury

venire and that the jury was composed of seven

whites and five blacks. The trial judge

denied the Batson objection at a side bar

conference held off the record after defense

counsel argued his objection and the

prosecutor explained the reasons for her

peremptory strikes after the trial judge had

absented himself from the proceedings.

Here, it is clear that the

Batson-Branch objection was preserved and that

the trial court did not comply with the

mandate of Batson and Branch. The reasons

given by the prosecutor for using his strikes

to eliminate blacks must be facially race

neutral and the trial judge must fing them to

be credible. Scales v. State, 539 So. 2d 1074

(Ala. 1988). Consequently, Harrell's

application for rehearing is granted and this

Court's affirmance of March 31, 1988, is

hereby set aside. This cause is remanded with

Girections that a-hearing be conducted in the

presence of the trial judge to determine

whether the guidelines of Batson, as

interpreted by Branch, have been followed.

The trial judge shall enter a written order of

his findings of fact and conclusions of law.

That order, along with a transcript of the

hearing, shall be forwarded to this Court on

return to remand.

OPINION EXTENDED;

APPLICATION FOR REHEARING GRANTED;

CAUSE REMANDED WITH DIRECTIONS.

All Judges concur.

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“The first stt ike was number 11, A

black male, James fuford, whe answered

none of the questions during voir dire

at all. The jury list shows that he's

employed as a helper at Moyet Allied

So we assert the only reason for him

being ' etricken was because he

happened to be & black male.

“The State's second strike was number

>, Jesse Crook, who is a -- the only

question he answered in voir dire was

that his brother of brother-in-law was

in security with the Mobile Police

Department. He was struck and we would

assert that the only reason evidently

he was struck was by virtue of his race.

“number 26, Margaret Powe, 15 & black

female. She's listed as being 4

housewife. Her only question answered

during voir dire 35 that she had been

the victim of 4 burglary. We assert

that the only reason that she was

stricken was because of her race.

“The State's fifth strike was Robert

Watt, who is & mechanic, an emp loyed

mechanic with Auto Saving Tire

Company. His only question answered in

voir dire was that he had been on [a]

jury before in 8 criminal case and

found the Defendant guilty. And we'd

assert the only reason he was stricken

was because of his race.

“Strike number eight was 4 black female

had been a burglary victim. Her name

was Dukes. She had a cousin who is a

lawyer in the District of Columbia and

she'd been on 4 jury this week on 4

criminal case and found the defendant

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under the vague guidelines set forth by

the United States Supreme Court, the

better course to follow would be to

hold a Batson hearing on the

defendant's request whenever the

defendant is a member of a cognizable

racial group and the prosecutor

exercises peremptory challenges to

remove members of defendant's race from

the venire. This bright line test

would ensure consistency by removing

any doubt about when a Batson hearing

should be conducted. Further, this

procedure would ensure a complete

record for appellate review.

"In all future jury trials,

therefore, we recommend that the trial

court hold a Batson hearing whenever 1)

the defendant requests such a hearing;

2) the defendant is a member of a

cognizable racial group; and 3) the

prosecutor exercises peremptory

challenges to remove members of

defendant's the venire.*

293 S.C. at , 358 S.E. 2d at 703.

Adopting this analysis, we hold that an

otherwise qualifying defendant is entitled to

4 Batson inquiry when he makes his objection

to the empanelment of the jury after it is

selected but before it is sworn. At that

point, the trial judge must conduct a Batson

inquiry on the record but out of the hearing

APPENDIX C©

IN THE CIRCUIT CCURT OF MOBILE COUNTY, ALABAMA

STATE OF ALABAMA .

Plaintlftft, °

* CASE NO.: CC88-830

JOE LOU'S HARRELL. e CC88-831

Defendant. bd

ORDER

This cause having been remanded to this

Court to conduct a hearing to determine

whether or not the guidelines of Batson v.

Kentucky. 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69, have been complied with, and the

Court having conducted said hearing, the Court

finds as follows:

That the prosecutor has’ failed to

provide the Court with facially race neutral

APPENDIX D

[RELEASED APRIL 27, 1990]

THE STATE OF ALABAMA - - - JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1989-90

1 Div. 779

Joe Louis Harrell

State

Appeal from Mobile Circuit Court

CC-88-830 and CC-88-831

ON RETURN TO REMAND

BOWEN, JUDGE

This Court remanded this cause to the

circuit court fEor application of the

principles of Batson v. Kentucky, 476 U.S.

79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), as

interpreted by Ex parte Branch, 526 So.2d 609

(Ala. 1987). After an evidentiary hearing,

the trial judge found that “the prosecutor has

failed to provide the Court with facially race

neutral reasons for its peremptory challenges

which are credible under the law.”

Harrell’s conviction and remanded the case for

a new trial. The case is once again before

this Court on certiorari review, pursuant to a

petition filed by the State in which it argues

that the following undisputed facts

established, as a matter of law, that the

prosecutor did not engage in purposeful

discrimination when she struck the blacks from

the jury venire: 1) The lawfully established

venire consisted of 28 people, of whom 10

(35.7%) were black; 2) the prosecutor used 5

of her @ peremptory challenges to strike

blacks and the remaining 3 to strike whites;

3) defense counsel used all & of his

peremptory challenges to strike whites from

the venire; and 4) the jury that was

ultimately empanelled consisted of 5 blacks,

amounting to 41.7% of the jury (a greater

percentage than was on the lawfully

established venire), and 7 whites.

If these were the only facts Harrell

relied on to raise an inference of

discrimination, we would aqree with the State

and reverse the judqment of the Court of

Criminal Appeals. As we explained in Harrell,

Supra, a defendant cannot prove a4 prima facie

case of purposeful discrimination sclely from

the fact that the prosecutor struck one or

more blacks from his jury. A defendant must

offer some evidence in addition to the

striking of blacks that would raise an

inference of discrimination When the

evidence shows only that blacks were struck

and that a greater percentage of blacks sat on

the jury than sat on the lawfully established

venire, an inference of discrimination has not

been created. Logically. if statistical

evidence may be used to establish a prima

facie case of discrimination, by showing a

discriminatory impact Harrell. 555 Se.2d 267,

citing United States v. David, 803 F.2d 1567,

1571 Clith Cir. 1986), then it sheuld also be

available to show the absence of o«

discriminatory purpose

However, in addition to the foregoing,

the record shows that the five blacks who were

struck from the venire shared only one

characteristic -- their membership in the

black race -- and that in all other respects

they were as heterogeneous a group as the

community as a whole. For instance, three of

the five blacks struck were men and two were

women. Two of the men were employed, one as a

helper at Moyer Allied and one as a mechanic

at Auto Savings Tire Company. One of the

women was a housewife, and the other was

employed as a social service aide. The fact

that the blacks struck include both men and

women and that they were of a variety of ages,

occupations, and social or economic

conditions, indicates that race may have been

the deciding factor. Harrell, supra, at 266.

Furthermore, the prosecutor engaged: in a

rather limited voir dire, asking only whether

any of the members of the venire had been the

victim of a crime; whether any of them, or

anyone in their immediate family or close

circle of friends, had been charged with a

crime; whether any of them had any religious

beliefs that would effectively prevent them

from sitting in judgment on Harrell; and

whether any member of the venire thought that

possession of marijuana or cocaine should not

be a crime. The record fails to show that any

of the five blacks responded *o the

prosecutor's questions in such a way as to

give any insight into why they were stricken.

The extent of the prosecutor's questions

during voir dire and the responses of the

venire members to those questions are also

relevant in determining whether the prosecutor

engaged in purposeful discrimination.

Harrell, supra, at 266. Finally, we take

judicial notice of Jones v. Davis, 906 F.2d

552 (llth Cir. 1990), in which the United

States Court of Appeals, Eleventh Circuit,

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APPENDIX G

RELEVANT ALABAMA STATUTES

Code of Alabama . 1975:

Title 12, § 12-16-100. DRAWING, SELECTION

AND EMPANELING OF JURIES IN CRIMINAL CASES -

GENERALLY.

(a) In every criminal case the jury

shall be drawn, selected and empaneled as

follows; Upon the trial by jury in the circuit

courts of any person charged with a felony,

including a capital felony, a misdemeanor, or

violation, the court shall require a strike

list or lists to be complied from the names

appearing on the master strike list as

established in section 12-16-74. In compiling

the list or lists, names of qualified jurors

may be omitted on a nonselective basis. A

strike list shall be furnished for the trial

of any case at hand and a copy thereof given

to all parties. the jurors whose names appear

thereon shall be brought into open court, the

cese shall be called and in the presence of

—

the district attorney and the defendant and

his attorney, the jurors shall be examined on

voir dire tor the trial of the case at hand.

After the conclusion of the voir dire

examination and the removal from the strike

list of the names of those jurors who were

challenged or excused for good reason, the

district attorney shall be required first to

strike from the strike~list the name of one

juror, and the defendant shall strike one, and

they shall continue to strike off names

alternately until only 12 jurors remain on the

strike list and these 12 jurors thus selected

shall be-the jury charged with the trial of

the case. If any defendant shall refuse to

exercise a strike to which he is entitled,

then the judge presiding shall exercise that

defendant's strike for him. The number of

names appearing on the strike list upon

commencement of striking, unless a lesser

number is agreed to by the parties, shall not

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be less than 36 if the offense charged is a

capital felony nor less than 18 if the offense

charged is a misdemeanor or violation. In the

event the list of competent prospective jurors

is reduced to fewer than the number required

by this subsection, the court shall add

prospective jurors in the manner prescribed in

section 12-16-76. No special venire shall be

ordered, drawn, or summoned for the trial of

any person indicted for a capital felony.

(b) The court may in its discretion

qualify such alternate jurors as it deems

necessary, except that in capital cases the

court shall qualify at least two alternate

jurors, as required by law. Alternate jurors

shall be drawn from the venire in the same

manner, shall have the same qualifications,

shall be subject to the same examination and

challenges, shall take the same oath, and

shall have the same functions, pcwers,

facilities, and privileges as the principal

jurors, except that they shall not deliberate

with the jury or vote upon the verdict unless

desianated to replace a principal juror. An

alternate juror who does not replace a

principal juror shall be discharged at the

time the jury retires to consider its verdict.

than two alternate jurors shall be selected in

a capital case, or that one or more alternate

jurors shall be selected in a noncapital case,

upon commencement of striking, unless the

parties consent to the use of a lesser number,

the minimum number of names required on the

strike list in subsection (a) shall be

increased by two for each alternate juror to

be selected; provided that such increase in

names shall not apply for the first two

alternate jurors to be selected in a capital

case. The parties shall then strike from the

strike list as herein provided until there

remain 12 jurors. The last juror or jurors

struck shall be the alternate or alternates,

and if it becomes necessary for an alternate

to replace a principal juror, the last juror

struck shall be designated. The identity of

alternate jurors shall not be divulged to the

jurors until the jury retires for deliberation.

(d) Any county having existing laws on

April 15, 1982 establishing procedures for the

selection and use of alternate jurors, may at

the election of the presiding circuit judge,

continue to follow the provisions of such law

with respect to the selection of alternate

jurors. Such election must be made in writing

within 30 days of April 15, 1982 and filed

with the secretary of state, the clerk of the

supreme court, the administrative office of

courts and the local bar of the county affected

thereby. At any time after said election,

either the presiding circuit judge,:or a

majority of the circuit judges in the circuit

wherein the county is located, may elect to

nan

come under the provisions of this chapter by

filing written notice as required above.

Title 13A, §13A-12-212. UNLAWFUL POSSESSION

OR RECEIPT OF CONTROLLED SUBSTANCES.

(a) A person commits the crime of

unlawful possession of controlled

substance if:

(1) Except as otherwise

authorized, he possesses a controlled

substance enumerated in schedules I

through V.

(2) He obtains by fraud, deceit,

misrepresentation or subterfuge or by

the alteration of a prescription or

written order or by the concealment of

a material fact or by the use of a

false name or giving a false address, a

controlled substance enumerated in

schedules I through V.

(b) Unlawful possession of 4 controlled

substance is a Class C felony.

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APPENDIX H

IN RE: FACTORS FOUND BY THE

ALABAMA SUPREME COURT TO INDICATE

DISCRIMINATORY INTENT

The Alabama Supreme Court found that

discriminatory intent was shown factors”

1. That the black venirepersons struck

by the prosecution had only one common

characteristic, race. (Appendix "“E", page 50)

This is simply not so. The record

shows that these people were struck because

they came from neighborhoods where drugs were

prevalent. The defense did not take issue

with Mr. Thomas’ assertion that such was the

case. The relevance of such factors in a drug

prosecution is obvious: Such persons are more

likely than others to be directly or

indirectly invo!ved with drugs and are very

likely to be subject to or at least fear

reprisal by drug dealers.

In addition, it is hardly surprising

that the black veniremen struck by the

prosecutor had little in common except race,

since wherever people are classified according

to an arbitrary factor like race, that factor

is invariably the only thing the people so

classified have in common. Thus, if one

considered the white people struck or the

black people left on the jury or the white

people left on the jury by the Prosecutor or

the white people struck by the defense, one

would in each case find that the members of

the group have little in common but race.

This analysis by the Alabama Supreme

Court seems to be based on an assumption that

4 prosecutor's strikes will all be motivated

by the same reason; a reason which can be

discovered by determining what factor all of

the struck venirepersons had in common. Thus,

the reasoning seems to be, if race is the only

common factor that must be the reason for the

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ineffective assistance of counsel is set out in

Strickland v. Washington, 466 U.S. 668 (1984):

“First, the defendant must show

that counsel's performance was

deficient. This requires showing

that counsel made errors so

serious that counsel was not

functioning as the ‘counsel’

guaranteed the defendant by the

Sixth Amendment. Second, the

defendant must show that the

deficient performance prejudiced

the defense. This requires

showing that counsel's errors

were so serious as to deprive the

defendant of a fair trial, a 7

trial whose result is reliable.

Unless a defendant makes both

showings, it cannot be said that

the conviction or death sentence

resulted from a breakdown in the

adversary process that renders

the result unreliable.”

466 U.S. at 687. See, also, Ex parte Lawley,

512 So.2d 1370, 1372 (Ala. 1987). As to the

first part of the Strickland test, the

standard for attorney performance is = an

objective one, that is, “reasonableness under

prevailing norms,” 477 U.S. at 688,. and “any

deficiencies in counsel's performance must be

prejudicial to the defense in order to

constitute ineffective assistance under the

Constitution.” 466 U.S. at 692. In cases

involving denial of assistance of counsel,

counsel's conflict of interest, or state

interference with counsel's assistance,

prejudice will be presumed, id., but in all

other cases, prejudice must be “affirmatively”

proved. 466 U.S. at 693. The standard for

determining prejudice is also set forth in

Strickland:

"The defendant must show that

there is a reasonable probability

that, but for counsel's

unprofessional errors, the result

of the proceeding would have been

different. A reasonable

probability is a probability

sufficient to undermine

confidence in the outcome.... In

making this determination, a

court hearing an ineffectiveness

claim must consider the totality

of the evidence before the judge

Or jury.”

466 U.S. at 694, 695.

Yelder argues that an additional

category under the “presumed prejudice”

exception should be created: failure of trial

counsel to make a timely Batson objection when

a prima facie case exists of purposeful

discrimination by the State in the jury

selection process. In order to protect and

preserve the holding of Batson (that

{“plurposeful racial discrimination in

selection of the venire violates a defendant's

right to equal protection,” Batson, 476 U.S.

at 86) and to bolster public confidence in the

fairness of our system of justice, 476 U.S. at

87, we agree with Judge Bowen's dissent that

it is necessary to create the suggested

additional category under the “presumed

prejudice” exception of Strickland.

Accordingly, we reverse that portion of the

judgment of the Court of Criminal Appeals that

addresses the issue of effective assistance of

counsel, and we remand the case to the Court

of Criminal Appeals with directions to remand

it to the trial court for a hearing on the

Batson question.

FACTS

Timothy John Yelder was convicted of

rape in the first degree, a violation of

§13A-6-61, Code of Alabama 1975; burglary in

the first degree, 4 violation of §13A-7-5; and

robbery in the first degree, 4 violation of

S13A-8-41. At the sentencing hearing, the

trial court sentenced Yelder to life

imprisonment on the rape charge, 25 years’

imprisonment on the burglary charge, and 50

years’ imprisonment on the robbery charge.

Yelder moved for a new trial and later

amended his motion to include the ineffective

assistance of counsel argument now before us.

The trial court held a hearing to consider

Yelder's motion, and denied it. Yelder

appealed to the Court of Criminal Appeals,

which affirmed his convictions. See Yelder v.

State, [Ms. 3 Div. 95, May 25, 1990)

So.2d _ (Ala. Cr. App- 1990). We granted

Yelder’s petition for writ of certiorari.

The Strickland Test and Presumed Prejudice

In his dissent, Judge Bowen correctly

noted that the Strickland test for prejudice,

excluding those instances of presumed

prejudice, is outcome-determinative in nature;

that is, it must appear that, absent the

lawyer's error, there is a reasonable

probability that the result of the trial would

have been different. Judge Bowen correctly

States that such an outcome-determinative test

"is simply not the proper criterion for

measuring prejudice in the context of a Batson

error.” and he says, “Applying this measure of

prejudice to a Batson error would be, in

effect, requiring the appellant to prove that,

had blacks not been unfairly removed from his

jury, the factfinder might have acquitted

him!" (Bowen, J., dissenting).

It is the assumption cited by Judge

Bowen that Batson was designed to combat:

“Just as the Equal Protection

Clause forbids the States to

exclude black persons from the

venire on the assumption that

blacks as a group are unqualified

to serve as jurors [citation

omitted], so it forbids the States

to strike black veniremen on the

assumption that they will be

biased in a particular case simply

because the defendant is black.

The core guarantee of equal

protection, ensuring citizens that

their State will not discriminate

on account cf race, would be

meaningless were we to approve the

exclusion of jurors on the basis

of such assumptions, which arise

solely from the jurors’ race.”

476 U.S. at 97-98. If an outcome-determinative

test is used, then no black appellant could

prove prejudice unless he relied on the very

assumption that Batson condemns.

In Batson, the Court noted the

importance of maintaining fairness within our

system of justice so as not to undermine

public confidence. In Ex parte Jackson, 516

So.2d 768 (Ala. 1986), we required the

retroactive application of Batson. In doing

so, we noted, “Although we know that the

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United States Supreme Court has not yet ruled

on whether Batson v. Kentucky is to be applied

retroactively, this Court does not need to

await revelation from the federal

judiciary....* 516 So.2d at 772. Strickland

was decided two years before Batson, so it did

not anticipate claims of alleged

ineffectiveness in the context of the Batson

issue. Had Strickland anticipated that issue,

we are certain it would have included that

issue as one of those in regard to which

prejudice is presumed. We need not await

enlargement of Strickland by the federal]

courts to hold that prejudice is presumed

where Batson violations are established in the

context of a charge of ineffective counsel.

CONCLUSION

We adopt the dissenting opinion of

Judge Bowen and hold that the failure of tria}

counsel to make a timely Batson objection to a

prima facie case of purposeful discrimination

by the State in the jury selection process

through its use of peremptory challenges is

presumptively prejudicial to a defendant.

Accordingly, we reverse the judgment of the

Court of Criminal Appeals to the extent that

it holds to the contrary, and we affirm the

other aspects of the judgment, and we remand

the case with directions to remand it to the

trial court for a Batson hearing.

AFFIRMED IN PART; REVERSED IN PART; AND

REMANDED .

Hornsby, C. J., and Jones, Houston,

Steagall, and Kennedy, JJ., concur.

Maddox, J., dissents.

Ex parte Yelder

MADDOX, JUSTICE, (dissenting)

I agree with the majority opinion of

the Court of Criminal Appeals, Yelder v.

State. [Ms. 3 Div. 95, May 25, 1990] So.2d

(Ala. Crim. App. 1990); therefore, I must

dissent. :

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.