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BUSH v. STATE12/1/1995
tion that the reason given for the striking of E.H. was pretextual. We find no evidence here of disparate treatment between white venirepersons and black venirepersons. We find it reasonable for the prosecutor to have cautiously concluded that E.H.'s equivocation on whether capital punishment truly deters crime was a real indication that she would not staunchly assert the death penalty. The prosecutor also struck white venirepersons who were opposed to or appeared reluctant to impose the death penalty. "Where whites and blacks are struck for the same reason, there is no evidence of disparate treatment." Carrington v. State, 608 So.2d 447, 449 (Ala. Cr. App. 1992). Based on the reasons given by the prosecutor for his strikes, our review of the questionnaires of all the venirepersons, the voir dire, and the deference to be paid to the trial court's findings of fact on this matter, we conclude that the prosecutor's peremptory challenge of E.H. was not discriminatory.
The appellant further contends that the trial court erred in denying his Batson motion because of the prosecutor's failure to give any explanation for his strike of venireperson D.T., number 202. He argues that the failure to provide a reason for striking D.T. resulted in the state's failing to meet "its burden to rebut the presumption" that the challenge of D.T. was based on race. He relies on Ex parte Williams, 571 So.2d 987 (Ala. 1990). The record shows that the prosecutor did, indeed, fail to explain his strike of D.T. It appears that his failure to do so was inadvertent and not intentional as suggested by the appellant. While giving his reasons for his strikes, the prosecutor was unable to locate D.T.'s questionnaire when he came to her name, and he stated to the court that he "would come back to her." After giving the remainder of his reasons, he failed to go back and explain his strike of D.T. In its order denying the Batson motion, the trial court incorrectly found that D.T. had been struck by the state for failing to return her questionnaire. D.T. had, in fact, completed and returned her questionnaire, and it is included in the record on appeal. We find that the trial court was simply mistaken in its finding as to D.T. However, the incorrect finding of the trial court has no bearing on our decision on this issue. Here, we are not concerned with the sufficiency of a reason for the strike; we are concerned with a situation where no reason at all was given.
The appellant never specifically objected in the trial court to the prosecutor's failure to explain his strike of D.T. When he was
given the opportunity to rebut the prosecutor's reasons for his strikes, he never mentioned that the prosecutor had failed to explain the strike of D.T. This issue is now raised for the first time on appeal.
In Bui v. State, 627 So.2d 855 (Ala. 1992), the Alabama Supreme Court held that a reviewing court must look at all of the existing circumstances to determine whether a trial court's conclusion that the prosecutor's reasons for its jury strikes are race-neutral is clearly erroneous. The court further held in Bui that under all of the circumstances of that case, the failure of the prosecutor to offer an explanation for one of its peremptory strikes did not mandate a finding that a Batson violation had occurred. The court stated:
"Recently, in Huntley v. State, 627 So.2d 1013 (Ala. 1992), this Court held that in reviewing allegations that the prosecutor exercised the state's peremptory strikes in a racially discriminatory manner, 'the reviewing court's inquiry . . . shall not be restricted by the mutable and often overlapping boundaries inherent within a Batson-analysis framework, but, rather, shall focus solely
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