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BUSH v. STATE12/1/1995
ired to turn over to the appellant its files concerning the venire, which included questionnaires submitted by the venirepersons; and the trial court gave the appellant an opportunity, after he had reviewed the state's files, to rebut the reasons given for the strikes by the prosecutor. After reviewing all the circumstances of this case, we cannot hold that the trial court's finding of an absence of racial discrimination with respect to the prosecutor's strike of D.T. was clearly erroneous. Based on the reasons given by the prosecutor for his strikes, the sparse information offered by the appellant in rebuttal to those strikes, the other existing circumstances noted above, and the deference to be accorded the trial court's findings, we conclude that the appellant failed to carry his burden of proving purposeful discrimination as to all of the prosecutor's peremptory strikes. We cannot say that the ruling of the trial court that the prosecutor's peremptory strikes were race-neutral was clearly erroneous. Thus, we find that its denial of the Batson motion was proper.
IX.
The appellant contends that two counts of the capital murder indictment are defective because they do not specify the property he is alleged to have stolen or was attempting to steal, and that this deprived him of adequate notice of what he would be called upon to defend against. He does not identify the counts to which he is referring. Counts I and II describe the alleged property that was the subject of the theft or attempted theft as "two bags of Zodiac sign tags, a better description of which is unknown . . . the value of which is unknown. . . ." Counts III and IV do not specifically identify the property; they state that the theft was of "property, to-wit: the kind, amount or value otherwise unknown . . . a better description of the property is otherwise unknown."
The appellant did not challenge the sufficiency of the indictment at trial; he raises this issue for the first time on appeal. Thus, we must examine this issue under the plain error rule. We note that this issue was never raised at the previous two trials and appeals.
"The indictment . . . shall be a plain, concise statement of the charge in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce the proper judgment." Rule 13.2(a), Ala.R.Cr.P. Counts I and II aver the specific property alleged to have been stolen and meet the requirements of the rule. However, Counts III and IV would have been subject to motions to dismiss because they did not inform the appellant of the specific property alleged to have been stolen. Counts III and IV charged the appellant expressly in the terms of the appropriate statutes: §§ 13A-5-40; 13A-6-2; 13A-8-41, and 13A-8-43. If an indictment charges a crime substantially in the terms of the statute creating the offense and sets out all the material elements thereof, it will generally support a conviction even though it might be subject to a proper motion to dismiss. In such a case, the indictment is not void but merely voidable. Ex parte Horton, 456 So.2d 1120 (Ala. 1984). A defect in an indictment that renders it merely voidable is waived by the failure to raise the issue in a timely manner. Ex parte Horton; Odom v. State, 625 So.2d 1171 (Ala. Cr. App. 1993). In the instant case, the failure of Counts III and IV to specify the property taken rendered the counts merely voidable, and the appellant waived this irregularity by failing to raise it in a timely fashion. This is not an instance where the indictment was so defective that it failed to inform the appellant of the
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