Opinion
1 Div. 68.
February 10, 1987. On Return to Remand May 12, 1987.
Appeal from the Circuit Court, Mobile County, Robert L. Byrd, Jr., J.
Thomas R. Boller, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Victor Jackson, Asst. Atty. Gen., for appellee.
The appellant was found guilty of burglary in the third degree and was sentenced to twenty years in the state penitentiary pursuant to the Alabama Habitual Felony Offender Act.
Following the striking of the jury, the following transpired:
"[DEFENSE COUNSEL]: Defendant's motion for mistrial made at this time on the basis of the invidious pattern of discrimination practiced by the district attorney's office in striking blacks from the jury. There were five blacks on the venire. The first five strikes of the district attorney's office were all blacks. The defendant cannot receive a fair trial.
"THE COURT: Denied.
"[DEFENSE COUNSEL]: The following people were struck and they didn't stand up and answer any questions: Alice Crenshaw, Joe Allen, Lilly Cook, Flora Evans, Lula, L-U-L-A Taylor. And none of those people stood up and answered any questions and caused any other reason to believe that they would not be able to serve as a juror."
Under Batson v. Kentucky, 476 U.S. ___, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Batson v. Kentucky, 476 U.S. at ___, 106 S.Ct. at 1722-23. Further, the Alabama Supreme Court has determined that the Batson decision is to be applied retroactively. Jackson v. State, [Ms. 84-1112, December 19, 1986] (Ala. 1986).
Because the prosecutor in this case was never required to give explanations for striking the blacks from the venire, this case is remanded to the trial court to hear any race-neutral explanations from the prosecutor and to determine whether the facts establish a prima facie case of purposeful discrimination. Should the trial court find no prima facie showing of purposeful discrimination, a return shall be filed with this court containing the evidence at this hearing and the trial judge's findings following the hearing.
REMANDED WITH INSTRUCTIONS.
All the Judges concur.
ON RETURN TO REMAND
In accordance with the order issued by this court remanding this cause to the trial court under the authority of Ex parte Jackson, [Ms. 84-1112, December 19, 1986] (Ala. 1986), a hearing was held to determine whether the prosecution could come forward with any race-neutral explanations for striking blacks from the jury and to determine whether or not the facts established a prima facie case of purposeful discrimination. The district attorney's office, at the hearing, was unable to state why blacks were struck from the venire and the prosecutor had no recollection as to why the blacks were struck. Therefore, the trial court correctly decided that the appellant was entitled to a new trial under Batson v. Kentucky, 476 U.S. ___, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
OPINION EXTENDED; APPEAL DISMISSED.
All the Judges concur.