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BUSH v. STATE12/1/1995
on and its progeny, a defendant must show (1) that members of a cognizable racial group or gender were excluded from the defendant's jury; (2) that he or she is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate," and (3) that these facts and other relevant circumstances raise an inference that the prosecutor used such a practice to exclude venirepersons from the jury on account of race or gender. See Project, Twenty-Fourth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1993-1994, 83 Geo.L.J. 665, 1125-26 (1995). If the defendant makes out a prima facie case of purposeful discrimination, the burden shifts to the state to go forward and articulate race- or gender-neutral explanations for the basis of the peremptory challenges.
In this case, the trial court found that the jury venire consisted of 76 potential jurors, of which 26 were black, and 50 were white. Thus, the black venirepersons constituted 34% of the venire. The court found that the state struck 18 blacks and 14 whites and
that the appellant struck 29 whites and 3 blacks. At least one black was excused for cause on motion of the appellant. Four blacks remained on the trial jury. Thus, blacks comprised 33% of the trial jury. The state used 43.75% of its peremptory strikes to strike white venirepersons and 56.25% to strike black venirepersons. We find that the record supports the findings of the trial court.
The trial court was uncertain as to whether the appellant had made a prima facie case that the state had exercised its peremptory challenges on the basis of race, stating, "I think that 18-14 is possibly not a prima facie showing of improper jury selection." In fact, the trial court never made a finding that a prima facie showing had been made. However, it nevertheless "out of an abundance of caution" required the prosecutor to give his reasons for his peremptory strikes. Until the defendant has met his burden of establishing a prima facie case of purposeful discrimination in accordance with the requirements of Batson, the prosecution should not be required to state the reasons for its strikes. While we are not called upon to decide in this case whether the appellant established a prima facie case, we do not believe under the circumstances here that a prima facie case was established. However, when the trial court calls upon the prosecution for an explanation of its strikes without expressly finding a prima facie case, we proceed directly to evaluate the sufficiency of the ensuing explanations. Taylor v. State, 666 So.2d 36 (Ala. Cr. App. 1994); Williams v. State, 548 So.2d 501 (Ala. Cr. App. 1988), cert. denied, 489 U.S. 1028, 109 S.Ct. 1159, 103 L.Ed.2d 218 (1989).
The trial court evaluates an objection to the use of peremptory challenges under the three-step analysis set forth in Batson. First, as we have said, a defendant must make a prima facie showing that the state has exercised a peremptory challenge or challenges on the basis of race or gender. Second, once a prima facie showing has been made, the burden shifts to the state to articulate a race- or gender-neutral explanation for striking the prospective jurors in question that is related to the case to be tried. Batson, 476 U.S. at 98, 106 S.Ct. at 1724. The United States Supreme Court recently stated in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), that the second step does not demand an explanation that is persuasive or even plausible. It stated that a legitimate explanation is not necessarily one that must make sense, but one that does not deny equal protection. At this step of
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