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BUSH v. STATE12/1/1995
upon the "propriety of the ultimate finding of discrimination vel non." ' 627 So.2d at 1015, quoting United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir. 1987), in turn quoting Merrill v. Southern Methodist University, 806 F.2d 600, 605 n. 6 (5th Cir. 1986). In United States v. Forbes, the Fifth Circuit Court of Appeals, upholding the defendants' convictions, noted:
" 'The Eleventh Circuit has observed, correctly we think, "Failure by a prosecutor to explain every peremptory strike of black jurors is not necessarily fatal to the prosecutor's ability to rebut a prima facie case; likewise, explanation of most of the strikes on nonracial grounds does not necessarily" satisfy his burden. United States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986).
" 'In this case, the prosecutor's third strike, though unexplained, seems unlikely to have been the result of intentional discrimination. The confluence of the following facts leads to this conclusion: (1) the black/white ratio on the jury mirrored that of the venire; (2) the prosecutor adequately explained two strikes; (3) the prosecutor did not use all his strikes; (4) there were two blacks left on the jury. Although the existence of fewer than all or most of these circumstances might be insufficient to prevent or rebut an inference of intentional discrimination, see Fleming v. Kemp, 794 F.2d 1478, 1483 (11th Cir. 1986) ("Nothing in Batson compels the district court's conclusion that constitutional guarantees are never abridged if all black jurors but one or two are struck because of their race."), the Court is mindful of Justice Holmes's comment in a different context that "we cannot let the fagot be destroyed by taking up each item . . . separately and breaking the stick." Edwards v. Chile Copper Co., 270 U.S. 452, 454-56, 46 S.Ct. 345, 346, 70 L.Ed. 678 (1926). There is significance, perhaps determinative significance, in the coexistence of these facts.'
"816 F.2d at 1011 n. 7.
"In Ex parte Demunn, 627 So.2d 1010 (Ala. 1992) (released the same day as Huntley v. State), we applied the rationale of United States v. Forbes and United States v. David in affirming Demunn's conviction. In Demunn, the prosecutor gave race-neutral reasons for striking two black persons from the venire, but he could not recall why he had stricken the third. Even so, after carefully considering all of the circumstances surrounding the selection of the jury, we concluded that the record supported the inference that the prosecutor had not exercised any of the state's peremptory strikes in a racially discriminatory manner, and we affirmed the judgment of the Court of Appeals, on the authority of Huntley."
Ex parte Bui, 627 So.2d at 859-60.
Applying the rationale of Bui to the instant case, we conclude that the prosecutor's strike of D.T., although unexplained, was not the result of intentional racial discrimination. We considered the following facts in reaching this conclusion: The black-white ratio on the jury mirrored that of the venire ("In a proper
case, the fact that the percentage of blacks on the jury is higher than the percentage of blacks on the venire may be a factor to be considered in deciding whether a prima facie case of discrimination has been made or rebutted.") Ex parte Thomas, 659 So.2d 3, 8 (Ala. 1994); race-neutral reasons were given by the prosecutor for striking 17 of the 18 black persons removed from the venire; the prosecutor had the opportunity to strike all of the blacks on the venire but did not do so; the appellant was instrumental in removing one black venireperson for cause; there were 4 blacks left on the trial jury; extensive voir dire of the venire was conducted; the state was requ
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