Download as PDF
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2010-2011
Andrew Reid Lackey
State of Alabama
Appeal from Limestone Circuit Court
convictions and sentences of death.
Lackey was convicted of
one count of capital murder for taking the life of Charles
Newman during the course of a robbery, see § 13A-5-40(a)(2),
Ala. Code 1975, and a second count of capital murder for
taking the life of Charles Newman during the course of a
burglary, see § 13A-5-40(a)(4), Ala. Code 1975.
unanimously recommended that Lackey be sentenced to death.
The circuit court accepted the jury's recommendation and
sentenced Lackey to death.
On appeal, Lackey asks this Court to remand the cause to
the circuit court with instructions for it to hold a hearing
inference that the State used its peremptory challenges in a
racially discriminatory manner.
The State notes that Lackey
did not raise a Batson objection at trial and denies that it
The State then asserts that "the [African-
American] veniremembers struck by the State shared attributes
that led ... the State to strike them."
(State's brief, at
However, due to the lack of a Batson objection and
resulting hearing, the State submits, "these attributes do not
appear in the record[; therefore,] the State has no objection
Lackey raises numerous additional issues on appeal.
Because Lackey's Batson issue may be dispositive, this Court
pretermits discussion of those additional issues.
to a remand for the ... purpose of holding a hearing on the
(State's brief, at 35.)
State seeks an opportunity "to offer its reasons for striking
[the African-American] veniremembers." (State's brief, at 35.)
This Court has explained:
"In Batson the United States Supreme Court held that
black veniremembers could not be struck from a black
defendant's jury because of their race. In Powers
v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed.
2d 411 (1991), the court extended its decision in
Batson to apply also to white defendants. ... The
United States Supreme Court in Georgia v. McCollum,
505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33
(1992), held that the protections of Batson were
also available to defense counsel in criminal
trials. The Alabama Supreme Court has held that the
protections of Batson apply to the striking of white
prospective jurors. White Consolidated Industries,
Inc. v. American Liberty Insurance, Co., 617 So. 2d
657 (Ala. 1993)."
Grimsley v. State, 678 So. 2d 1194, 1195 (Ala. Crim. App.
trial, this failure does not preclude this Court's review.
See Rule 45A, Ala. R. App. P.
"Under the 'plain error' doctrine, as enunciated
in Rule 45A, [Ala. R. App. P.,] the Court of
Criminal Appeals is required to search the record in
a death penalty case and notice any error (ruling or
appropriate action, whenever such error has or
probably has adversely affected the substantial
right of the [defendant], in the same manner as if
defendant's counsel had preserved and raised such
error for appellate review."
Ex parte Johnson, 507 So. 2d 1351, 1356 (Ala. 1986) (citations
and quotations omitted).
"For plain error to exist in the
Batson context, the record must raise an inference that the
State engaged in 'purposeful discrimination' in the exercise
of its peremptory challenges."
Lewis v. State, 24 So. 3d 480,
489 (Ala. Crim. App. 2006) (citing Ex parte Watkins, 509 So.
2d 1074 (Ala. 1987)).
The Alabama Supreme Court has explained:
"The following are illustrative of the types of
evidence that can be used to raise the inference of
"1. Evidence that the 'jurors in
characteristic -- their membership in the
group -- and that in all other respects
community as a whole.'
Wheeler, 22 Cal. 3d [258,] at 280, 583 P.2d
[748,] at 764, 148 Cal. Rptr. [890,] at 905
significant that the persons challenged,
although all black, include both men and
conditions,' Wheeler, 22 Cal. 3d at 280,
583 P.2d at 764, 148 Cal. Rptr. at 905, n.
27, indicating that race was the deciding
"2. A pattern of strikes against black
jurors on the particular venire; e.g., 4 of
6 peremptory challenges were used to strike
black jurors. Batson, 476 U.S. at 97, 106
S. Ct. at 1723.
"3. The past conduct of the offending
attorney in using peremptory challenges to
strike all blacks from the jury venire.
Swain [v. Alabama, 380 U.S. 202, 85 S. Ct.
824, 13 L. Ed. 2d 759 (1965)].
"4. The type and manner of the
statements during voir dire, including
nothing more than desultory voir dire.
Batson, 476 U.S. at 97, 106 S. Ct. at 1723;
Wheeler, 22 Cal.3d at 281, 583 P.2d at 764,
148 Cal. Rptr. at 905.
"5. The type and manner of questions
directed to the challenged juror, including
a lack of questions, or a lack of
meaningful questions. Slappy v. State, 503
So. 2d 350, 355 (Fla. Dist. Ct. App. 1987);
People v. Turner, 42 Cal. 3d 711, 726 P.2d
102, 230 Cal. Rptr. 656 (1986); People v.
Wheeler, 22 Cal. 3d 258, 583 P.2d 748, 764,
148 Cal. Rptr. 890  (1978).
"6. Disparate treatment of members of
characteristics; or who answer a question
in the same or similar manner; e.g., in
Slappy, a black elementary school teacher
was struck as being potentially too liberal
because of his job, but a white elementary
school teacher was not challenged. Slappy,
503 So. 2d at 352 and 355.
"7. Disparate examination of members
of the venire; e.g., in Slappy, a question
designed to provoke a certain response that
is likely to disqualify a juror was asked
to black jurors, but not to white jurors.
Slappy, 503 So. 2d at 355.
"8. Circumstantial evidence of intent
may be proven by disparate impact where all
or most of the challenges were used to
strike blacks from the jury. Batson, 476
U.S. at 93, 106 S. Ct. at 1721; Washington
v. Davis, 426 U.S. [229,] 242, 96 S. Ct.
[2040,] 2049[, 48 L. Ed. 2d 597 (1976)].
peremptory challenges to dismiss all or
most black jurors, but did not use all of
his peremptory challenges. See Slappy, 503
So. 2d at 354, Turner, supra."
Ex parte Branch, 526 So. 2d 609, 622-23 (Ala. 1987).
Here, both Lackey and the State ask this Court to remand
this cause to the circuit court to provide the State with an
This Court's "review of the record
indicates that, if the defense had filed a Batson motion at
trial raising the arguments he now raises, the trial court
would have been obligated to require the prosecution to state
the reasons for each of its peremptory challenges."
v. State, [Ms. CR-08-0696, Oct. 01, 2010] ___ So. 3d ___, ___
(Ala. Crim. App. 2010).
Because Lackey did not raise a Batson
objection at trial, the State did not have an opportunity to
respond to his allegations or to provide its reasons
striking African-American veniremembers. Further, the circuit
arguments and to rule on the propriety of the State's reasons
for striking African-Americans because it was present during
the jury-selection proceedings.
Thus, in accordance with the parties' request, this Court
remands this cause to the circuit court for that court to hold
a hearing during which it is to require the State to provide
its reasons for striking African-American veniremembers and to
provide Lackey with an opportunity to "offer evidence showing
that the [State's] reasons or explanations are merely a sham
Preachers v. State, 963 So. 2d 161, 166 (Ala.
Crim. App. 2006) (citations and quotations omitted).
Batson, 476 U.S. at 97.
The circuit court shall make a
legitimate race-neutral reasons for striking African-American
race-neutral reasons for the use of its peremptory challenges
establishes that the State's reasons are a sham or pretext,
Lackey shall be entitled to a new trial.
See, e.g., Lewis v.
State, 24 So. 3d 480 (Ala. Crim. App. 2006).
If, on the other
hand, the State provides legitimate race-neutral reasons for
Lackey shall not be entitled to a new trial.
In either event,
the circuit court shall make written findings of fact.
action to see that the circuit clerk makes due return to this
Court at the earliest possible time and within 90 days after
the release of this opinion.
The return to remand shall
include a transcript of the Batson hearing and the circuit
court's written findings of fact.
REMANDED WITH INSTRUCTIONS.
Wise, P.J., and Welch, Kellum, and Main, JJ., concur.