Snith v. State8/25/2000
for plain error. Rule 45A, Ala.R.App.P., defines "plain error" as follows:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."
As this Court stated in Tyson v. State, [Ms. CR-98-0267, February 4, 2000] ___ So. 2d ___, ___ (Ala.Crim.App. 2000):
"Error is `plain' if `the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.' Haney v. State, 603 So. 2d 368 (Ala. Cr. App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). Also, ` he plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."' United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d. 1 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). To find plain error `the claimed error [must] not only [have] seriously affected [the defendant's] "substantial rights," but ... it [must have] had an unfair prejudicial impact on the jury's deliberations.' Young, 470 U.S. at 18 n. 14."
I.
Smith argues that the trial court erred in not quashing his indictment because, he alleges, there was gender discrimination in the selection of the grand jury foreperson in Tallapoosa County. Smith argues that he met his burden of establishing a prima facie case of gender discrimination and that the State failed to rebut this evidence. Smith also asserts that this alleged discrimination is all the more "repugnant" because of the important and vital role that the grand jury foreperson performs.
Initially, we observe that the Alabama Supreme Court has characterized the role of an Alabama grand jury foreperson as "primarily ministerial." Ex parte Myers, 699 So. 2d 1285 (Ala. 1997), cert. denied, 522 U.S. 1054 (1998). " he role of a grand jury foreperson in Alabama is so ministerial that even his or her failure to participate in deliberations and to vote with the panel is not fatal to the indictment if the requisite 12 members of the panel concur in the indictment." Ex parte Pace, 714 So. 2d 332, 338 (Ala.), opinion on remand, 714 So. 2d 340 (Ala.Crim.App. 1997), cert. denied, 523 U.S. 1051 (1998). The Alabama Supreme Court in Pace refused to find plain error in the discriminatory selection of a foreperson of an otherwise properly constituted grand jury because the role of the foreperson in almost entirely ministerial. This Court held in Lee v. State, 631 So. 2d 1059 (Ala.Crim.App. 1993), and Locke v. State, 631 So. 2d 1062 (Ala.Crim.App. 1993), that in order to establish a prima facie case of racial discrimination in the selection of a grand jury foreperson, the defendant must show: (1) that the group alleged to be discriminated against is a distinct group; (2) that the degree of under-representation is significant over a period of time; and (3) that the selection procedure is susceptible to abuse or is not race-neutral. We note that this Court has used this test when determining whether there was gender discrimination in the selection of a grand jury foreperson. Minor v. State, [Ms. CR-95-1968, October 29, 1999] ___ So.2d ___ (Ala.Crim.App. 1999). Once the defendant has established a prima facie case of discrimination, the burden then shifts to the State to rebut this evidence. Rose v. Mitchell,
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