# Appendix — Alabama v. Harrell

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 984

## Text

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,
V.
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

OF

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

64

69

78

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

n
No
a)

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
n.
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

I]

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

a

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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

ee

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

9

(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

10

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,

1]

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.

12

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.
IV
The defendant's motion for a mistrial

was properly denied on two separate occasions.

13

A.

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).

B.
The defendant's second request for a
mistrial was prompted when the prosecutor

_

14

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."

15

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

16

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.

17

VI

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

18

(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.

21

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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

26

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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

37

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

42

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

Vv
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.”
44

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

48

ee

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

49

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

50

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,

51

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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
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—

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

©, 7

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

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=

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.
(c) If the court determines that more
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

$9

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

60

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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.

64

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

65

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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

70

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
71

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.

72

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.

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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:

74

“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

75

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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

76

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. :

ae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1767%3A2. Public record. Not legal advice.