On Remand from the Alabama Supreme Court

KELLUM, Judge.1

The appellant, Jason Michael Sharp, was convicted of murder made capital because it was committed during the course of a rape or an attempted rape. See § 13A-5-40(a)(3), Ala.Code 1975. This Court remanded the case for the trial court to amend its sentencing order to include written findings as to the aggravating and mitigating circumstances. On return to remand, this Court affirmed Sharp's conviction and death sentence. See Sharp v. State, 151 So.3d 308 (Ala.Crim.App.2008).

Sharp petitioned the Alabama Supreme Court for certiorari review, arguing, among other things, that the State used its peremptory challenges to remove African-Americans from the jury venire, thus violating Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, Sharp argued that plain error occurred during the jury selection because the State failed to strike prospective white jurors for the same reasons it struck prospective African-American jurors. The Supreme Court granted certiorari review and on December 4, 2009, reversed this Court's judgment, holding:

Ex parte Sharp, [Ms. 1080959, December 4, 2009] 151 So.3d 329, 342 (Ala.2009).

In accordance with the Supreme Court's holding, we remand this case to the circuit court for that court to determine whether the State's reasons for using its peremptory challenges against African-American veniremembers were race neutral. If the circuit court, following a hearing, determines that Sharp is entitled to relief, it is authorized to grant such relief as it deems necessary.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the circuit court, together with the circuit court's written findings of fact.

REMANDED WITH INSTRUCTIONS.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.

On Remand from the Alabama Supreme Court and on Application for Rehearing on Return to Second Remand

PER CURIAM.

The opinion issued on March 23, 2012, on application for rehearing on return to second remand,1 is withdrawn, and the following opinion is substituted therefor.

Jason Michael Sharp was convicted of capital murder because it was committed during the course of a rape or an attempted rape, see § 13A-5-40(a)(3), Ala.Code 1975. By a vote of 11 to 1, the jury recommended that Sharp be sentenced to death. The trial court accepted the jury's recommendation and sentenced Sharp to death.

On appeal, this Court remanded this case for the trial court to amend its sentencing order. Sharp v. State, [Ms. CR-05-2371, Aug. 29, 2008] 151 So.3d 308 (Ala. Crim.App.2008) ("Sharp I"). On return to remand, we affirmed Sharp's conviction and sentence. Sharp v. State, [Ms. CR-05-2371, Dec. 19, 2008] 151 So.3d 308, 327 (Ala.Crim.App.2008) ("Sharp II"). The Alabama Supreme Court, after granting certiorari review of Sharp's petition, reversed this Court's judgment. The Court, applying the plain-error standard of review, held that "the record creates an inference of discrimination on the part of the State" in its use of its peremptory strikes. Ex parte Sharp, [Ms. 1080959, Dec. 4, 2009] 151 So.3d 329, 342 (Ala.2009). See also Rule 45A, Ala. R.App. P. Because the State had not been required to articulate on the record its reasons for the use of its peremptory strikes and because the record before the Supreme Court was not adequate for that Court to determine whether a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), had occurred, the Court remanded the case for this Court to order further proceedings. Ex parte Sharp, 151 So.3d at 342. This Court then remanded the case for the trial court to conduct a Batson hearing at which the State was to provide its reasons for its peremptory strikes against African-American veniremembers and the trial court was to determine whether the prosecution had used its strikes in a racially discriminatory manner. See Sharp v. State, [Ms. CR-05-2371, Mar. 5, 2010] 151 So.3d 342 (Ala.Crim.App.2010) ("Sharp III").

On remand, the trial court complied with our instructions and, on April 27, 2010, conducted a Batson hearing. During that hearing, the State provided its reasons for striking African-American veniremembers. The trial court allowed Sharp to file a written response to the prosecution's reasons for striking African-American veniremembers. In his response, Sharp argued that the State's reasons for striking African-American veniremembers were pretextual. Thereafter, the State filed a written reply to Sharp's response. On July 16, 2010, the trial court entered an order finding that the prosecution had offered race-neutral reasons for its peremptory strikes against African-American veniremembers and that those reasons were not pretextual. The trial court found further that the State therefore had not violated Batson in the exercise of its peremptory strikes. This Court affirmed. Sharp v. State, [Ms. CR-05-2371, Mar. 23, 2012] (Ala.Crim. App.2010) (opinion on application for rehearing and return to second remand) ("Sharp IV").

The Alabama Supreme Court, in an order dated October 18, 2012, summarily vacated our judgment in Sharp IV and remanded the case "with instructions that [the Court of Criminal Appeals] allow the parties to brief the issues raised by the trial court's Batson order and that it then address those issues by further opinion." (No. 1111489). In compliance with the Supreme Court's instructions, we ordered briefing on the issues raised by the trial court's Batson order. The parties completed briefing on December 17, 2012. We now have again reviewed the trial court's Batson order, and we again affirm.2

The venire in Sharp's case consisted of 80 potential jurors. The trial court excused nine of the veniremembers for cause. Of the remaining jury panel of 71 members, 14 were African-American and 57 were Caucasian. The prosecution struck 30 potential jurors, and the defense struck 29 potential jurors, with each party's last strike serving as an alternate juror. The State used 11 of its 30 strikes to remove African-American veniremembers, removing all but 3 African-Americans from the venire. The defense struck two African-American veniremembers. One African-American sat on Sharp's jury.3

At the Batson hearing, the State articulated its reasons for striking the 11 African-American veniremembers.4 Regarding Juror no. 55, the State provided as follows:

(Record on Return to Remand ("RTR"), R. 5-6.)

The State gave the following reasons for striking Juror no. 37:

(RTR, R. 8-10.)

As to Juror no. 65, the State gave the following reasons:

(RTR, R. 10-11.)

Regarding Juror no. 39, the State explained:

(RTR, R. 11-12.)

The State said as follows for striking Juror no. 52:

(RTR, R. 12-13.)

As to Juror no. 27, the State set out the following reasons:

(RTR, R. 14-15.)

Regarding Juror no. 11, the State explained:

(RTR, R. 15-16.)

The State noted that it struck Juror no. 64 for the following reasons:

(RTR, R. 16-17.)

Regarding Juror no. 38, the State provided:

(RTR, R. 17-18.)

As to Juror no. 47, the State explained:

(RTR, R. 19-20.)

Finally, regarding Juror no. 74, the State provided:

(RTR, R. 21-22.)

During the Batson hearing, the trial court inquired about the State's strike of Juror no. 38 based on her employment history, specifically asking if the prosecutor knew that Juror no. 38 was retired — the prosecutor indicated that he did not know that Juror no. 38 was retired. Additionally, the prosecutor explained the "lack-of-sophistication" reason he had given for striking several African-Americans as follows:

(RTR, R. 20-21.)

Following the hearing, the trial court entered the following order:

(RTR, R. 104-11.)

Evaluation of a Batson claim involves the following three steps:

McCray v. State, 88 So.3d 1, 17 (Ala.Crim. App.2010) (quoting Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

In Ex parte Sharp, the Alabama Supreme Court held that the record raised an inference of discrimination. 151 So.3d at 342. Thus, the first step of the Batson process — a prima facie case of discrimination — has been established.

Under the second step of the Batson process, the burden shifts to the prosecution to offer a race-neutral reason for striking the juror or jurors in question. Ex parte Branch, 526 So.2d 609, 623 (Ala. 1987). See, e.g., Ex parte Bird, 594 So.2d 676, 680 (Ala.1991). The prosecution must provide "a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory." Ex parte Branch, 526 So.2d at 623. See also Ex parte Bird, 594 So.2d at 680. The reason for the strike, however, need not rise to the level of a strike for cause, and the issue is the facial validity of the prosecutor's explanation. Ex parte Branch, 526 So.2d at 623; Doster v. State, 72 So.3d 50, 73 (Ala.Crim. App.2010).

The trial court here held that the State met its burden under the second stage of the Batson inquiry to articulate a "facially neutral" reason for excluding prospective African-American jurors.

Martin v. State, 62 So.3d 1050, 1058-60 (Ala.Crim.App.2010).

We agree with the trial court's conclusion that the State provided facially race-neutral reasons for striking the 11 African-American jurors and that it therefore satisfied its burden under step two of the Batson process. Both the Alabama Supreme Court and this Court have specifically recognized as race-neutral the reasons asserted by the State here, such as opposition to the death penalty; the fact that the prospective juror had been the victim of a crime or had a relative who had been the victim of a crime; the failure to answer questions on a juror questionnaire; religious beliefs or practices; prior convictions; lack of mental acuity; evasiveness or inattentiveness to questioning; service on a prior case in which the outcome had been less than favorable for the State; demeanor; bias; and unemployment.5

In the third step of the process, the defendant has the opportunity to offer evidence indicating that the reason or explanation offered by the State for challenging the juror in question is merely a sham or pretext. Ex parte Branch, 526 So.2d at 624. Throughout the Batson process, "[t]he defendant maintains at all times ... the ultimate burden of proving intentional discrimination." United States v. Houston, 456 F.3d 1328, 1335 (11th Cir.2006) (citing Batson, 476 U.S. at 94 n. 18, 106 S.Ct. 1712).

In light of both parties' submissions, the trial court must determine whether the defendant has carried his or her burden of showing purposeful discrimination. See Ex parte Brooks, 695 So.2d 184, 190 (Ala.1997); Ex parte Branch, 526 So.2d at 624. See also Fletcher v. State, 703 So.2d 432, 435 (Ala.Crim.App.1997) ("When the defendant challenges as pretextual the prosecutor's explanations as to a particular venireperson, the inquiry becomes factual in nature and moves to step three. At this step the trial court must resolve the factual dispute, and whether the prosecutor intended to discriminate is a question of fact. Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 1868-69, 114 L.Ed.2d 395 (1991)."). In making that determination, the trial court must confront the "decisive question" and evaluate the credibility of the prosecution's explanation, Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991), "in light of all evidence with a bearing on it," Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). See also Miller-El v. Cockrell, 537 U.S. at 338-39, 123 S.Ct. 1029; Batson, 476 U.S. at 98, 106 S.Ct. 1712. Cf. Greene v. Upton, 644 F.3d 1145, 1155 (11th Cir.2011) ("Batson does not require elaborate factual findings. See Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 1035, 154 L.Ed.2d 931 (2003); see also Hightower v. Terry, 459 F.3d 1067, 1072 n. 9 (11th Cir.2006) (`We may therefore make "the common sense judgment" — in light of defense counsel's failure to rebut the prosecutor's explanations and the trial court's ultimate ruling — that the trial court implicitly found the prosecutor's race-neutral explanations to be credible, thereby completing step three of the Batson inquiry.')"). In addition, "`[t]he explanation offered for striking each black juror must be evaluated in light of the explanations offered for the prosecutor's other peremptory strikes, and as well, in light of the strength of the prima facie case.'" Ex parte Bird, 594 So.2d 676, 683 (Ala.1991) (quoting Gamble v. State, 257 Ga. 325, 327, 357 S.E.2d 792, 795 (1987)). In other words, all relevant circumstances must be considered in determining whether purposeful discrimination has been shown. See, e.g., Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ("[I]n reviewing a ruling claimed to be a Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.").

Smith v. Jackson, 770 So.2d 1068, 1072-73 (Ala.2000).

The Alabama Supreme Court in Ex parte Branch provided the following illustrative examples of the types of evidence the defendant could offer to demonstrate that the stated reason for challenging the juror in question is a sham or pretext:

Ex parte Branch, 526 So.2d at 624 (citations omitted).

In reviewing the trial court's ultimate conclusion on discriminatory intent, we apply the "clearly erroneous" standard of review. Hernandez, 500 U.S. at 364, 111 S.Ct. 1859; Yancey v. State, 813 So.2d 1, 3 (Ala.Crim.App.2001). See also Greene, 644 F.3d at 1155. This deferential standard of review is applicable because intent to discriminate is a question of fact. Hernandez, 500 U.S. at 366-67, 111 S.Ct. 1859. In Snyder, 552 U.S. at 477, 128 S.Ct. 1203, the United States Supreme Court stated the following regarding the deferential standard of review applied to a trial court's determination regarding discriminatory intent:

552 U.S. at 477, 128 S.Ct. 1203. Similarly, this Court has stated:

Doster, 72 So.3d at 73-74 (emphasis added). See also Bryant v. State, 951 So.2d 732, 740 (Ala.Crim.App.2003).

The third step of the Batson analysis has been further explained:

Parker v. Allen, 565 F.3d 1258, 1271 (11th Cir.2009) (emphasis added). See also United States v. Walker, 490 F.3d 1282, 1294 (11th Cir.2007) (providing that because the "trial judge is in the best position to evaluate an attorney's candor and ferret out purposeful discrimination," an appellate court will defer to trial court's findings on genuineness of reasons even when "troubled by the weakness of record evidence"). The evaluation of the credibility of the prosecutor's explanation in the third step demands consideration of the totality of the relevant facts, and we defer to a trial court's findings as to the "genuineness" of the prosecutor's proffered reason or reasons. See, e.g., Snyder, 552 U.S. at 477, 128 S.Ct. 1203; Walker, 490 F.3d at 1294.

"The objecting party may carry its burden by showing that the striking party's race-neutral reason is a mere pretext for discrimination." United States v. Bernal-Benitez, 594 F.3d 1303, 1312 (11th Cir. 2010). As noted above, one way the defendant may demonstrate that the offered reason is a pretext is to show that it applies with equal force to veniremembers of another race who were not struck. Miller-El v. Dretke, 545 U.S. at 241, 125 S.Ct. 2317.

Here, as noted, the prosecution offered multiple reasons in support of its strikes of the jurors in question (Jurors no. 55, 37, 65, 39, 52, 27, 11, 64, 38, 47, and 74). In the trial court and in his materials to this Court, Sharp attacks many of the prosecution's stated reasons for striking those jurors. Indeed, for most of those jurors, Sharp has offered reasons arguably demonstrating that one or more of the prosecution's stated reasons for striking that juror could be viewed as a sham or a pretext. Under our well settled case law, however,

Martin, 62 So.3d at 1059-60 (emphasis added; citations and quotation omitted).6 Sharp has not demonstrated, as to any individual juror in question, that all the stated reasons for striking that juror were a sham or a pretext. Thus, Sharp has not demonstrated that the prosecution violated Batson.

Jurors no. 38, 47, 37, and 74

In the trial court, Sharp challenged the prosecution's striking Jurors no. 38, 47, 37, and 74 for allegedly lacking "sophistication." Sharp pointed out that the State did not strike two Caucasian jurors who also appeared to lack "sophistication" or "intelligence" but who sat on Sharp's jury. The trial court, however, did not rely solely on the "lack-of-sophistication" reason in its order as to Jurors no. 38, 47, 37, and 74.7 Rather, as Martin permits, the trial court cited other race-neutral reasons the State offered for striking Jurors no. 38, 47, 37, and 74.

Specifically, the prosecution explained (1) that Juror no. 38 appeared inattentive and failed to complete the jury questionnaire;8 (2) that Juror no. 47 appeared to be hostile and had a prior criminal conviction; (3) that Juror no. 37 expressed strong reservations about the death penalty and failed to complete the jury questionnaire; and (4) that Juror no. 74 had served on a prior jury that had returned a less-than-favorable verdict for the State and also had a relative who had been the victim of a violent crime.

The trial court, which was in the best position to judge the demeanor of the veniremembers, entered findings in agreement with the reasons given by the State. Specifically, the trial court indicated (1) that it had observed Juror no. 38's demeanor and that Juror no. 38 was inattentive during the voir dire process; (2) that it had observed Juror no. 47's demeanor in a display of hostility by Juror no. 47; (3) that Juror no. 37 had indicated his inability to impose the death penalty; and (4) that Juror no. 74 had returned a verdict unfavorable to the State in a prior case. In addition, the fact that Juror no. 74's son had been a victim of a crime was also a valid basis for exercising a peremptory challenge to remove Juror no. 74. Accordingly, the trial court did not clearly err in its determination that the State did not engage in purposeful discrimination in striking Jurors no. 38, 47, 37, and 74.

Jurors no. 27 and 11

Sharp takes particular exception to the prosecution's strikes of potential Jurors no. 27 and 11 because, he says, the State struck these jurors because they lacked "sophistication." The State also asserted, however, that it struck Juror no. 27 because she had been charged in Madison County with six counts of possession of marijuana and had been convicted on at least one of those counts; the State further asserted that the district attorney prosecuting Sharp's case had served exclusively as a prosecutor of drug cases during that time and likely prosecuted Juror no. 27's case. These are valid race-neutral reasons. See Brown v. State, 982 So.2d 565, 586 (Ala.Crim.App.2006) (holding that the prosecutor's reason for exercising peremptory strikes against three African-American veniremembers who had criminal convictions and who each had failed to respond when questioned as to whether they had any prior convictions, was race neutral for purposes of capital-murder defendant's Batson challenge); Gamble v. State, 791 So.2d 409, 424-25 (Ala.Crim. App.2000) (stating that the State's peremptory strike of a prospective juror who had been prosecuted by the same district attorney's office numerous times for writing worthless checks and for possession of marijuana did not result in a Batson violation). See also Carter v. State, 249 Ga.App. 354, 356, 548 S.E.2d 102, 105 (2001) (determining that under Batson the State offered a race-neutral explanation for exercising a peremptory strike against an African-American prospective juror where the juror failed to disclose a shoplifting conviction for which she had been prosecuted by the same district attorney prosecuting the defendant's case). Cf. Parker, 565 F.3d at 1271 ("Neither a prosecutor's mistaken belief about a juror nor failure to ask a voir dire question provides `clear and convincing' evidence of pretext.").

As to Juror no. 11, the State asserted that, "through its records," it had noted that Juror no. 11 had also been convicted in Madison County of negotiating a worthless check, a crime of moral turpitude.9 This is a valid race-neutral reason. See Hall v. State, 816 So.2d 80 (Ala.Crim.App.1999) (having had "contact" with the bad-check unit of a prosecutor's office is a race-neutral reason for striking a juror); Siler v. State, 629 So.2d 33 (Ala. Crim.App.1993) (providing that a prospective juror was properly struck pursuant to the prosecutor's belief that the juror had been prosecuted for passing bad checks); Childers v. State, 607 So.2d 350 (Ala.Crim. App.1992) (concluding that a veniremember was properly struck where the prosecutor stated that he was currently in the process of prosecuting the veniremember in a bad-check case); Bryant v. State, 516 So.2d 938 (Ala.Crim.App.1987) (determining that a potential juror was properly struck by the prosecutor because the challenged juror had written bad checks).

Sharp claims he showed disparate treatment in the State's striking of Jurors no. 27 and 11, African-Americans who had prior convictions and in its failure to strike Juror no. 24, a Caucasian who sat on Sharp's jury despite stating on his questionnaire that he had previously been convicted of assault. We disagree.

This Court has recognized that for disparate treatment to exist, the persons being compared must be "otherwise similarly situated." Yancey, 813 So.2d at 7 (quotation omitted). In this case, Jurors no. 27 and 11 were not similarly situated to Juror no. 24. As noted, Juror no. 24, unlike Jurors no. 27 and 11, disclosed on his juror questionnaire that he had a prior conviction: an assault conviction in 2000 in Memphis, Tennessee. Jurors no. 27 and 11, however, did not disclose on their juror questionnaires that they had prior convictions. Juror no. 27 simply answered "no" to the question, and Juror no. 11 indicated only that her brother had been convicted of a crime. Our caselaw recognizes the fundamental importance of truthful responses from prospective jurors. See, e.g., Tomlin v. State, 695 So.2d 157, 169 (Ala. Crim.App.1996) ("`It is fundamental to our system of impartial justice that "`[p]arties have a right to have questions answered truthfully by prospective jurors to enable them to exercise their discretion wisely in exercising their peremptory strikes.'"'" (quoting State v. Freeman, 605 So.2d 1258, 1259 (Ala.Crim.App.1992), quoting in turn Ex parte O'Leary, 438 So.2d 1372, 1373 (Ala.1983), quoting in turn Ex parte O'Leary, 417 So.2d 232, 240 (Ala.1982))). Not only did Jurors no. 27 and 11 fail to disclose that they had prior convictions (which had occurred in Madison County), they also failed to indicate on their juror questionnaires that they had previous involvement as criminal defendants with law enforcement in Madison County. Juror no. 24, however, disclosed on his questionnaire that his only involvement with law enforcement in Madison County was as a citizen — specifically, in his capacity as manager of a local department store. In light of the State's belief that Jurors no. 27 and 11 had prior convictions, the failure of Jurors no. 27 and 11 to disclose that they had prior convictions or any involvement with Madison County law enforcement renders them not "similarly situated" to Juror no. 24 for purposes of a disparate-treatment analysis.10

Sharp also claims that the State failed to engage in meaningful voir dire with Jurors no. 27 and 11 about their prior undisclosed convictions. Although the State's failure to engage in meaningful voir dire may in some cases be "evidence that the explanation is a sham and a pretext for discrimination," Hemphill v. State, 610 So.2d 413, 416 (Ala.Crim.App.1992), the trial court did not clearly err in its conclusion under the circumstances here.

Both the State and the defense had juror questionnaires during jury selection. One purpose for using juror questionnaires is to obtain specific information from each potential juror without having to take days to conduct oral voir dire and without duplication of questions. Once the State discovered that a discrepancy existed between the public records of conviction and the sworn responses provided by Jurors no. 27 and 11, it would have been apparent to the State that Jurors no. 27 and 11 had not been truthful in answering their juror questionnaires. For the State to have then questioned Jurors no. 27 and 11 about those prior convictions, which Jurors no. 27 and 11 had not disclosed even though they were matters of public record, likely would have embarrassed Jurors no. 27 and 11 in front of the other veniremembers. To so question and embarrass one member of the venire in front of other members of the venire would likely have had a chilling effect on the other jurors' freely answering voir dire questions. It could even have resulted in potential jurors becoming embittered toward the prosecutor for having embarrassed a fellow veniremember. Thus, because of the State's knowledge of the prior convictions and the failure of Jurors no. 27 and 11 to answer truthfully on the questionnaires, voir dire on this topic likely would not have been "meaningful."11

As this Court noted in Brown v. State, 982 So.2d 565, 584-85 (Ala.Crim. App.2006):

Accordingly, the trial court did not clearly err in determining that Sharp failed to demonstrate that the State's proffered reasons for striking Jurors no. 27 and 11 — prior undisclosed convictions and prior prosecution by Madison County law enforcement — were pretextual or otherwise a sham. As noted above, "[i]t is well settled that `[a]s long as one reason given by the prosecutor for the strike of a potential juror is sufficiently race-neutral, a determination concerning any other reason given need not be made.'" Martin, 62 So.3d at 1059-60 (emphasis added; citations and quotation omitted). Further, "`[w]here a prosecutor gives a reason which may be a pretext, ... but also gives valid additional grounds for the strike, the race-neutral reasons will support the strike.'" Id. (emphasis added). Thus, Sharp is not entitled to relief on his Batson claim as to Jurors no. 27 and 11.12

Jurors no. 52, 39, 65, 55, and 64

Sharp also argued that the prosecution did not strike other Caucasian jurors who were similarly situated to African-American jurors who were struck. For example, Sharp cites Juror no. 52, an African-American male, and Juror no. 79, a Caucasian male, who were both studying to become ministers, and Juror no. 39, an African-American male who was involved in prison ministries. Although the State explained that Juror no. 52 was studying to become a minister, it also stated that Juror no. 52's brother had been murdered and that Juror no. 52 had witnessed the murder. The trial court found that Juror no. 52 privately revealed that she had been the victim of an "almost rape," that she had a brother who had a criminal history, and that she had witnessed a murder. As to Juror no. 39, the prosecution articulated that he was a Seventh-Day Adventist involved in prison ministries, and the trial court found that his religious beliefs would have prevented him from "engag[ing] in any activities other than religious activities on Saturdays."13 (RTR, R. 107.)

Similarly, Sharp claims purposeful discrimination in the prosecution's striking of Juror no. 65. Juror no. 65, however, strongly expressed that he could not impose the death penalty. The Caucasian jurors who were empaneled did not express the same response, and the trial court indicated this was a valid reason based on its observation of Juror no. 65. The trial court, which was in the best position to judge the demeanor of the veniremembers, made specific findings regarding these jurors. The materials before us do not demonstrate that the trial court's determination was clearly erroneous.

Additionally, the prosecutor provided several reasons for striking Juror no. 55, and the trial court found that Juror no. 55: (1) wavered on the death penalty; (2) knew both defense counsel and the trial judge; (3) had a son who had been the victim of an attempted murder; and (4) worked as a social worker and had seen abuse during her employment. Although several Caucasian jurors who were empaneled indicated that either they or their relatives were victims of a crime, our review of the record indicates that none of the Caucasian jurors that Sharp claimed to be similar to Juror no. 55 opposed the death penalty or knew any of the parties involved in Sharp's case. We defer to the trial court's findings as to the "genuineness" of the prosecutor's proffered reasons, and there is no evidence indicative of an improper motive by the prosecutor in exercising the peremptory strike as to Juror no. 55.

Sharp also contends that the State engaged in purposeful discrimination in striking Juror no. 64. The trial court found that, after observing the demeanor of Juror no. 64, the State had not engaged in purposeful discrimination because, among other things, Juror no. 64 had previously served on a jury that had resulted in an unfavorable verdict. We do not see clear error in the trial court's rejection of Sharp's Batson claim as to Juror no. 64.

Finally, in accordance with Rule 45A, Ala. R.App. P., we have again searched the record for any error that may have adversely affected Sharp's substantial rights, and we have found none.

Conclusion

As noted above, the reasons given by the State at the second step of the Batson analysis were sufficient to rebut the prima facie showing of racial discrimination. After reviewing the transcript of voir dire, the juror questionnaires, the proceedings on remand, and the briefs filed with this Court in accordance with the Alabama Supreme Court's October 18, 2012, order, we conclude that the trial court did not clearly err in holding that Sharp failed to demonstrate that the State engaged in purposeful discrimination in violation of Batson. Indeed, the totality of the relevant facts supports the trial court's determination that the prosecutor's challenges were not based on race or ethnicity. See Snyder, 552 U.S. at 477, 128 S.Ct. 1203. We therefore affirm the trial court's denial of Sharp's Batson claim.

APPLICATION FOR REHEARING GRANTED; OPINION OF MARCH 23, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

WINDOM, P.J., and BURKE, J., concur. JOINER, J., concurs specially. WELCH and KELLUM, JJ., dissent, with writing by KELLUM, J., which WELCH, J., joins.

JOINER, Judge, concurring specially.

I concur in the main opinion. Although I agree with the main opinion's conclusion that the law-of-the-case doctrine does not permit us to consider "the merits of the State's argument that [Jason Michael] Sharp's Batson [v. Kentucky, 476 U.S. 79 (1986),] claim is not properly before this Court," 151 So.3d at 347 n. 2, I write separately to note that, were we writing on a blank slate, I would be inclined to agree with the State's position. This case, in my opinion, illustrates the need for the Alabama Supreme Court to authoritatively end the practice of using plain-error review to initiate a Batson claim on appeal.

In this regard, I fully agree with the views expressed by Justice Murdock in Part A of his special writing in Ex parte Floyd, [Ms. 1080107, Sept. 28, 2012] ___ So.3d ___, ___ (Ala.2012), regarding plain-error review of Batson14 claims.

In his special writing in Floyd, Justice Murdock stated:

Ex parte Floyd, ___ So.3d at ___ (Murdock, J., concurring in the result). In explaining his reason for this position, Justice Murdock noted first that he "[had] found no federal cases in which the court has used a `plain error' review to initiate a Batson inquiry on appeal when the defendant failed to initiate that inquiry during the trial."15 Id. He then cited several policy reasons in support of his conclusion, with which I also agree. Those policy reasons bear emphasizing here.

First is the reality that

___ So.3d at ___.

In the present case, this concern was not implicated to the extent it could be in other cases because, as the main opinion discusses, the trial court in fact remembered details such as the demeanor of particular veniremembers, and the prosecution was able to identify several reasons for its strikes of the individual jurors. Even so, as a former circuit judge I am aware of the near impossibility that a prosecutor or circuit judge — who has experienced hundreds of trials (possibly including many capital-murder trials) and interacted with thousands of jurors over a number of years — would remember the details surrounding the strikes of jurors for a trial that had concluded many months or even many years before.16 Thus, I share Justice Murdock's concern that the passage of time will often render a Batson inquiry impossible years after the fact.

The second concern Justice Murdock identified is that

Id.

This case squarely implicates Justice Murdock's second policy concern. I was not a member of this Court when it first considered Sharp's direct appeal in 2008 — the same appeal that has yet to be finally resolved in 2013 — but I note that Sharp's initial brief to this Court in 2008 listed only five issues for appellate review and included a total of slightly more than 20 pages of argument. In that brief, Sharp gave no indication that he thought a Batson violation had occurred. In the Alabama Supreme Court, however, Sharp — still represented by the same counsel who had represented him in this Court — filed a 94-page petition for a writ of certiorari seeking review on 29 separate issues. Although Sharp did not think the alleged Batson violation was plain enough to raise in the trial court or in this Court, it was the first issue he presented to the Alabama Supreme Court. That tactic — if indeed it was a tactic17 — essentially bypassed this Court on its initial consideration of this appeal (a process that took more than a year) and has extended by years the review of Sharp's case.18

The third policy concern that Justice Murdock identified

Ex parte Floyd, ___ So.3d at ___ (Murdock, J., concurring in the result).

As Justice Murdock noted, there may be valid reasons for defense counsel's not raising a Batson objection at trial. The use of plain-error review to initiate a Batson inquiry, however, places a trial judge in the precarious position of questioning, in real-time, the trial strategy of defense counsel who fails to initiate such an inquiry.19 Like Justice Murdock, I question the wisdom of requiring the trial judge to essentially second-guess the defense counsel's strategy on this issue.

KELLUM, Judge, dissenting.

I must dissent from the majority's holding that the trial court did not err in denying Sharp's motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After thoroughly reviewing the record, I have no choice but to conclude that all the reasons given by the State for striking Jurors no. 27 and 11 were pretextual and thus improper under Batson.

As the majority recognizes, in evaluating a Batson claim, a three-step process must be followed. As explained by the United States Supreme Court in Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003):

In this case, the majority correctly concludes that Sharp satisfied the first step of the process — establishing a prima facie case of discrimination. The Supreme Court held that the record in this case raised an inference of discrimination. Ex parte Sharp, [Ms. 1080959, December 4, 2009] 151 So.3d 329 (Ala.2009). The majority also correctly concludes that the State satisfied the second step of the process — providing facially race-neutral reasons for its strikes. As the majority notes, all the reasons given by the State for its strikes of African-American jurors were based on something other than the juror's race, and both this Court and the Alabama Supreme Court have specifically recognized as race-neutral the various reasons asserted by the State here.

It is with the majority's conclusion that Sharp failed to satisfy his burden under the third step of the process — establishing purposeful discrimination — that I must disagree. In the third step of the Batson process, the burden is on the defendant to establish that the State's asserted reasons for its strikes were pretextual and, thus, discriminatory.

Ex parte Branch, 526 So.2d 609, 624 (Ala. 1987). "`The explanation offered for striking each black juror must be evaluated in light of the explanations offered for the prosecutor's other peremptory strikes, and as well, in light of the strength of the prima facie case.'" Ex parte Bird, 594 So.2d 676, 683 (Ala.1991) (quoting Gamble v. State, 257 Ga. 325, 327, 357 S.E.2d 792, 795 (1987)). In other words, all relevant circumstances must be considered in determining whether purposeful discrimination has been shown. See, e.g., Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ("[I]n reviewing a ruling claimed to be a Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.").

Although the majority cites Ex parte Bird, supra, and Snyder, supra, for the proposition that all relevant circumstances, including the other reasons proffered by the State for its strikes, must be considered in determining whether any one reason proffered by the State is pretextual or non-pretextual, the majority does not follow that law in determining that the State's strikes against Jurors 27 and 11 are non-pretextual. Rather, the majority, relying on Martin v. State, 62 So.3d 1050 (Ala.Crim.App.2010), an opinion I authored, and the cases cited therein, rejects Sharp's argument that all relevant circumstances must be considered.

In Martin, writing for the Court, I explained the general rule in Alabama as follows:

Martin, 62 So.3d at 1059-60.20 In other words, the general rule is that once a court determines that one specific reason proffered by the State for a challenged peremptory strike is both race neutral and non-pretextual, it is unnecessary for the court to make a determination as to whether any of the other reasons proffered by the State for that strike are also race neutral and non-pretextual. However, it is in making the determination whether that one specific reason proffered by the State is pretextual or non-pretextual that a court is required to consider all relevant circumstances, including the other reasons proffered by the State for that particular strike and the reasons proffered by the State for its other strikes. Neither Martin nor the general rule as cited in Martin say otherwise. Thus, in determining whether any one reason proffered by the State for its strikes of Jurors no. 27 and 11 is pretextual or non-pretextual, I consider, as I did in Martin, all the relevant circumstances, including the other reasons proffered by the State for those strikes and the reasons proffered by the State for its other strikes.

Smith v. Jackson, 770 So.2d 1068, 1072-73 (Ala.2000) (emphasis added). "[T]he proponent's explanations — even if facially neutral — are not viewed by the judiciary with credulous naivete." Ex parte Bruner, 681 So.2d 173, 179 (Ala.1996) (Cook, J., concurring specially). "[T]he critical question in determining whether a [defendant] has proved purposeful discrimination at step three is the persuasiveness of the prosecutor's justification for his peremptory strike. At this stage, `implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.'" Cockrell, 537 U.S. at 339, 123 S.Ct. 1029 (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)).

As the majority correctly observes, because "`[t]he trial court is in a better position than the appellate court to distinguish bona fide reasons from sham excuses,'" Harris v. State, 2 So.3d 880, 899 (Ala.Crim.App.2007) (quoting Heard v. State, 584 So.2d 556, 561 (Ala.Crim.App. 1991)), an appellate court must give deference to a trial court's findings and "`reverse the circuit court's ruling on the Batson motion only if it is "clearly erroneous."'" Johnson, 43 So.3d at 12 (quoting Cooper v. State, 611 So.2d 460, 463 (Ala.Crim.App.1992), quoting in turn Jackson v. State, 549 So.2d 616, 619 (Ala. Crim.App.1989)). However, contrary to the belief expressed by the majority, "[d]eference does not by definition preclude relief." Cockrell, 537 U.S. at 340, 123 S.Ct. 1029. Rather, "`"[a] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."'" Fletcher v. State, 703 So.2d 432, 436 (Ala.Crim. App.1997) (quoting Davis v. State, 555 So.2d 309, 312 (Ala.Crim.App. 1989), quoting in turn Powell v. State, 548 So.2d 590, 594 (Ala.Crim.App.1988), aff'd, 548 So.2d 605 (Ala.1989)). In this case, I am left with a definite and firm conviction that a mistake has been made with respect to Jurors no. 27 and 11.

As the majority notes, after challenges for cause, there were 71 jurors on the venire, of which 14, or approximately 20 percent, were African-American. The prosecutor struck 11, or approximately 79 percent, of those eligible African-American jurors. The defense struck two African-American jurors, and only one African-American juror sat on Sharp's jury. "Happenstance is unlikely to produce this disparity." Cockrell, 537 U.S. at 342, 123 S.Ct. 1029. In its opinion, the Alabama Supreme Court found — under the stringent plain-error standard of review21 — that the record indicated that some African-American jurors who were struck provided responses to questions similar to the responses of Caucasian jurors who were not struck and that the record indicated that the African-American jurors who were struck shared the characteristic of race but were otherwise heterogenous. Under these circumstances, the prima facie case of discrimination is strong, and I must consider the reasons for striking Jurors no. 27 and 11 in light of that strong prima facie case.

On remand, the State proffered three reasons for striking Juror no. 27, set out in the order in which the State proffered the reasons: (1) her employment as a packer on an assembly line at a Target Distribution Center and her previous employment at a Burger King fast-food restaurant indicated that she lacked "sophistication"; (2) on question 79 on the juror questionnaire, asking, "If you've heard anything in the media regarding this case, do you feel you could still be fair and impartial?" she circled "no"; and (3) she had been charged in Madison County with six counts of possession of marijuana in the second degree and "[i]t appeared" to the State that she had been convicted of one of those counts in 1990, a time when the prosecutor had been exclusively a drug prosecutor for the district attorney's office. The State proffered the following reasons for striking Juror no. 11, also set out in the order in which the State proffered them: (1) she was a Seventh Day Adventist; (2) she was then unemployed, had no employment history over the last 10 years, and indicated on the juror questionnaire that she did not know her ex-husband's place of employment; (3) she did not answer question 79 on the juror questionnaire and did not "fully" answer question 74; and (4) she had a prior conviction for issuing a worthless check. I first address those reasons the State proffered for striking both Juror no. 27 and Juror no. 11 — "lack of sophistication," alleged prior convictions, and answers or lack thereof on the juror questionnaires — and then turn to the remaining reason the State proffered for striking Juror no. 11 — that she was a Seventh Day Adventist.

I.

The State proffered as its "first and foremost" reason for striking Juror no. 27 that she lacked "sophistication" because she worked as a packer and proffered as a reason for striking Juror no. 11 that she was unemployed and lacked knowledge of her ex-husband's employment. The State first used "lack of sophistication" as a reason for its strike against Juror no. 37, the second African-American it struck, who was a custodian. In doing so, the State explained: "[T]he Court is well aware that this was a circumstantial case that really the thrust of the State's evidence was DNA evidence, as the Court knows is somewhat sophisticated and technical evidence. So his sophistication socially or professionally was noted by the State." The State noted later that "with respect to professional or social sophistication ... one of the main concerns of the State in this case [was] to, in fact, get a jury that could comprehend DNA evidence." Thus, it appears that the State was using the term "sophistication" as a synonym for "intelligence" and that it believed that Juror no. 27 was not sufficiently intelligent to understand DNA evidence. In addition, although the State did not specifically assert that Juror no. 11 lacked "sophistication" as it did with Juror no. 27, it is clear that the State's reasoning was the same for both jurors. The State referred to Juror no. 11's unemployment and her lack of knowledge of her ex-husband's employment "in light of the evidence we were presenting," thus showing that it also believed Juror no. 11 was not sufficiently intelligent to understand DNA evidence.

The majority dismisses the State's heavy reliance on "lack of sophistication" as a reason for striking several potential jurors largely because, it concludes, the trial court did not rely solely on that proffered reason in determining whether there was purposeful discrimination, but instead "cited other race-neutral reasons the State offered for striking" several jurors. 151 So.3d at 365. Although I do not necessarily agree with the majority's interpretation of the trial court's order, even assuming that interpretation to be correct, the trial court's, and now the majority's, failure to consider the State's heavy reliance on lack of intelligence as a reason for striking several African-American jurors ignores the settled law, as explained above, that all relevant circumstances bearing on the issue of racial animosity, including the State's proffered reasons for its other strikes, must be considered when reviewing a trial court's ruling on a Batson motion. See Snyder v. Louisiana, 552 U.S. at 478, 128 S.Ct. 1203, and Ex parte Bird, 594 So.2d at 683.

Although, as noted above, low intelligence is a facially race-neutral reason for a peremptory strike, it is nonetheless a suspect reason because of the inherent susceptibility of abuse. See McGahee v. Alabama Dep't of Corr., 560 F.3d 1252, 1265 (11th Cir.2009) ("[T]he State's claim that several African-Americans were of `low intelligence' is a particularly suspicious explanation given the role that the claim of `low intelligence' has played in the history of racial discrimination from juries."). In this case, the reason is even more suspect because it is unsupported by the record and is based solely on a group bias. Indeed, the trial court found this reason to be suspect with respect to Jurors no. 37, 39, 52, 11, 38, and 74, noting at various points in its order that the record did not support the State's conclusion that some of these jurors lacked the intelligence necessary to understand DNA evidence and that a person's employment status alone is not sufficient to establish a lack of intelligence. Although the trial court did find this reason to be supported by the record with respect to Jurors no. 27 and 47, that finding by the trial court is itself unsupported by the record.

With respect to Juror no. 27, the trial court found the lack-of-intelligence reason to be race-neutral and supported by the record "[b]ased on the court's observations and the responses given on this case." (RTR, C. 108.) However, my review of the proceedings reflects that the only "responses" Juror no. 27 gave during voir dire were her name, occupation, and marital status, all of which she supplied during roll call. She answered no questions during general voir dire of the entire venire, nor was she questioned during individual voir dire. It is difficult to fathom how a simple statement as to one's name, occupation, and marital status could establish a lack of intelligence. Also, as Judge Joiner, a former circuit judge himself, notes in his special concurrence, it is a "near impossibility that a prosecutor or circuit judge — who has experienced hundreds of trials (possibly including many capital-murder trials) and interacted with thousands of jurors over a number of years — would remember the details surrounding the strikes of jurors for a trial that had concluded many months or even many years before." 151 So.3d at 372 (Joiner, J., concurring specially). In addition, I fail to see any connection between a person's exterior appearance and demeanor — which the trial court observed — and that person's intellectual level. Thus, contrary to the trial court's finding, with respect to Juror no. 27, the lack-of-intelligence reason proffered by the State is wholly unsupported by the record.

With respect to Juror no. 47, the trial court also noted that it had observed this juror and her demeanor and that "lack of sophistication of a prospective juror when faced with technical expert evidence in a case has been held to constitute a race-neutral reason for the use of a peremptory challenge." (RTR. C. 110.) However, other than stating during roll call her name, occupation, and marital status, Juror no. 47 answered only two questions during general voir dire, one of which required Juror no. 47 simply to raise her hand and to state her assigned juror number. Although Juror no. 47 was questioned during individual voir dire, she was asked only five questions. Again, it is difficult for me to fathom how a person's intellectual level could be ascertained after only a few sentences. Thus, contrary to the trial court's finding, with respect to Juror no. 47, the lack-of-intelligence reason proffered by the State is also unsupported by the record.

In addition, the State's sole basis for concluding that Jurors no. 27 and 11 would not be able to understand DNA evidence was those jurors' employment — Juror no. 27 was a packer and Juror no. 11 was then unemployed and had no knowledge of her ex-husband's employment. However, as the trial court found in its order, the nature of a person's employment or the lack of employment, by itself, is not sufficient to establish a lack of intelligence. Nor is there any logical connection between a person's lack of knowledge of an ex-spouse's employment and that person's ability to understand DNA evidence. Yet the prosecutor made no attempt in this case to question these jurors (or any of the jurors on the venire, for that matter) regarding their intelligence level or their ability to understand DNA evidence. "[T]he failure of the State to engage in any meaningful voir dire on a subject of alleged concern is evidence that the explanation is a sham and a pretext for discrimination." Ex parte Bird, 594 So.2d at 683. Rather, the prosecutor merely assumed that Jurors no. 27 and 11 would not be able to understand DNA evidence because Juror no. 27 was employed in a manual-labor or blue-collar job and Juror no. 11 was unemployed and had no knowledge of her ex-husband's employment. Therefore, this reason for striking Jurors no. 27 and 11 was clearly based on a group bias against blue-collar workers and the unemployed where the trait of concern — intelligence — was not shown to apply to these two particular jurors. Although certainly not conclusive, group bias is evidence that the reason for a strike is a sham or pretext for discrimination.

I also note that the State appeared to use this "lack-of-sophistication" reason not merely for Jurors no. 27 and 11, but for a total of 8 of its 11 strikes of African-American jurors — as noted previously, Jurors no. 37, 39, 52, 27, 11, 38, 47, and 74, were all struck, in part, because of an alleged lack of "sophistication." In other words, 72 percent of the State's strikes against African-American jurors were based, at least in part, on those jurors' supposed lack of intelligence. This is a troubling statistic in light of the historically suspect nature of this reason. Equally troubling is the fact that the record does not support any of the State's strikes for this reason. As with Jurors no. 27 and 11, the State's supposed belief that Jurors 37, 39, 52, 38, 47, and 74 lacked sufficient intelligence to understand DNA evidence was also based primarily on those jurors' employment — Juror no. 37 was a custodian, Juror no. 39 was unemployed, Juror no. 52 drove a forklift, Juror no. 38 was a rental-car agent, Juror no. 47 was a cafeteria manager, and Juror no. 74 was a secretary. With respect to these six jurors, the State made the same unsupported group-based assumption it made with Jurors no. 27 and 11 — that those jurors who were unemployed or who worked manual-labor or blue-collar jobs were not sufficiently intelligent to understand DNA evidence — without questioning any of them regarding their intelligence level or their ability to understand DNA evidence.

With respect to Juror no. 38, the State relied not only on employment but also on a misspelled word on the juror questionnaire to conclude that she lacked intelligence. However, as the trial court found in its order, the fact that a juror misspelled a single word on a juror questionnaire fails to establish lack of intelligence, especially in light of the fact that Juror no. 38 stated on her juror questionnaire that she had attended college and had received a bachelor's degree. In addition, my review of the juror questionnaires reveals that Caucasian jurors who were not struck by the State also misspelled one or more words on their juror questionnaires. Specifically, Juror no. 5 misspelled "police," Juror no. 24 misspelled "channel," and Juror no. 33 misspelled "chamber" and "robbery," but they all sat on Sharp's jury.

Despite these circumstances, the trial court found this reason to be race-neutral with respect to Juror no. 38 "when coupled with her employment history and her demeanor." (C. 110.) However, as explained above, I fail to see the connection between a person's external appearance and demeanor and that person's intelligence level. In addition, this finding by the trial court is quite troubling given (1) the lack of support for it in the record, and (2) the trial court's own questioning of this reason during the hearing on remand. The State's assertion that Juror no. 38 had a "checkered" employment history and had worked for only 7 months in the last 10 years is directly refuted by the record. On her juror questionnaire, Juror no. 38 stated, on the first page of the questionnaire, that she had retired from the Department of Defense as a program analyst in 2003, approximately three years before Sharp's trial. At the hearing on remand, the trial court, evidently concerned about the validity of this proffered reason, specifically asked the State if it was aware that Juror no. 38 was a retiree, and the State indicated that it was not, despite the fact that Juror no. 38 clearly indicated her retired status on the first page of the juror questionnaire.

Further, the record discloses disparate treatment by the State with regard to its "lack-of-sophistication" reason for striking jurors. Although the State struck 8 African-Americans based on "lack of sophistication," either because they were unemployed or were employed in manual-labor or blue-collar jobs, the State did not strike Juror no. 43, a Caucasian who indicated on her juror questionnaire that she was a housewife and had been unemployed for the last 10 years. See, e.g., Carter v. State, 603 So.2d 1137 (Ala.Crim.App.1992). The State attempted to justify this disparate treatment at the hearing on remand, explaining that it did not strike Juror no. 43 because her husband had once testified as an expert witness and her two adult children were "educated," a conclusion apparently based on Juror no. 43's answer on the juror questionnaire that her son was an engineer and her daughter was a teacher. However, the fact that Juror no. 43 was married to someone who had once been an expert witness and that she had two adult children who were "educated" in no way shows the intellectual level of Juror no. 43 or the ability of Juror no. 43 to understand DNA evidence.

I recognize that disparate treatment evident in the record may, in some circumstances, be overcome by a sufficient explanation by the State. For example, as the Alabama Supreme Court explained in Ex parte Brown, 686 So.2d 409 (Ala.1996):

686 So.2d at 420. In this case, however, I believe the State's explanation for not striking Juror no. 43 was insufficient to dispel the disparate treatment here. Indeed, the State's proffered explanation of the disparate treatment is, itself, support for the conclusion that there was disparate treatment. Despite its reliance on the education level of Juror no. 43's adult children to conclude that she was sufficiently intelligent to understand DNA evidence, the State struck Jurors no. 47 and 74, both African-Americans, in part, because they were not sufficiently intelligent even though both had at least one adult child who was "educated" — Juror no. 47 had a daughter who was a nurse and Juror no. 74 had a son employed in information technology.

Finally, although at the hearing on remand the State asserted that it was concerned with seating jurors who were sufficiently intelligent to understand the complex and technical DNA evidence that was to be presented at Sharp's trial, the record of voir dire belies this assertion. During voir dire, the State questioned the venire about DNA evidence as follows:

(R. 243; emphasis added.) Contrary to the State's contention at the hearing on remand, the State was not concerned, at the time it questioned and struck the jury, with the ability of the potential jurors to understand the DNA evidence to be presented because "you don't have to be super smart to understand it."

For these reasons, I must conclude that the State's proffered reason — that Jurors no. 27 and 11 were not sufficiently "sophisticated" to understand DNA evidence — is pretextual.

II.

The State also proffered as a reason for striking both Juror no. 27 and Juror no. 11 that each may have had a prior conviction, specifically that "[i]t appeared" that Juror no. 27 had a prior conviction for possession of marijuana at a time when the prosecutor had been working exclusively on drug-related cases22 and that Juror no. 11 had a prior conviction for issuing a worthless check. However, on the juror questionnaires, potential jurors were asked whether they, or any relative or close friend, had ever been accused of a crime and what the outcome, if any, of that accusation was. Juror no. 27 stated "no" in answer to the question, and Juror no. 11 indicated that her brother had previously been accused and convicted of a crime, but she did not list herself as having ever been accused of a crime. The State never questioned these jurors about their criminal history or about the alleged discrepancy between its alleged records of the prior convictions (to which the State referred at the hearing on remand but which are not included in the record before this Court) and the jurors' responses on the questionnaire. As noted above, "the failure of the State to engage in any meaningful voir dire on a subject of alleged concern is evidence that the explanation is a sham and a pretext for discrimination." Hemphill v. State, 610 So.2d 413, 416 (Ala.Crim.App.1992).

Instead of considering the lack of questioning here as evidence of discrimination, however, the majority excuses the State's failure to question these jurors about their alleged prior convictions because, it rationalizes, such questioning would have "embarrassed Jurors no. 27 and 11 in front of the other veniremembers" and "would likely have had a chilling effect on the other jurors' freely answering voir dire questions, and because "[i]t could even have resulted in potential jurors becoming embittered toward the prosecutor for having embarrassed a fellow veniremember." 151 So.3d at 369. However, the majority's rationale fails in the face of the record before this Court. The record reflects that the venire was initially questioned as a whole, but that potential jurors were given the option of speaking to the parties and the court in private instead of in front of the entire venire. The parties were also specifically given the opportunity to question any member of the venire individually, outside the presence of the other potential jurors, about anything they wished. A number of potential jurors voluntarily approached to speak with the parties and court in private, and several additional jurors were questioned individually at the request of the parties. However, neither Juror no. 27 nor Juror no. 11 were questioned individually. Thus, contrary to the majority's conclusion, the State clearly had the opportunity to question these jurors about their prior criminal history and about the alleged discrepancy between their answers on the questionnaire and the State's alleged records during individual voir dire without fear of embarrassing those jurors in front of other potential jurors and without fear of creating "a chilling effect" on other potential jurors, but it did not do so. Therefore, I cannot, as the majority does, excuse the State's failure to question these jurors.

The majority also excuses the State's failure to question Jurors no. 27 and 11 about their alleged prior convictions because, it says:

151 So.3d at 368. This conclusion by the majority is problematic, for several reasons.

First, the majority assumes, as did the trial court in its order, that the State was aware that Jurors no. 27 and 11 did not state on their juror questionnaires that they had prior convictions and that the State would have struck these jurors for allegedly not answering truthfully. However, the State did not even mention the juror questionnaires when providing this reason for striking Jurors no. 27 and 11, much less indicate that it was striking Jurors no. 27 and 11 because they had allegedly not answered questions truthfully. Although the failure of a potential juror to answer questions truthfully would certainly be a valid reason for a peremptory strike, neither a trial court nor an appellate court may substitute what would be a valid non-pretextual reason for a peremptory strike (the failure of a potential juror to answer questions truthfully) for the reason that was actually provided by the State (the potential juror allegedly had a prior conviction). "If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false." Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (emphasis added).

In addition, as explained above, the State was wholly unaware of the answers provided by Juror no. 38 on her juror questionnaire. The State asserted as a reason for striking Juror no. 38 that she had a "checkered" employment history and had worked for only 7 months in the last 10 years despite the fact that on the first page of her juror questionnaire, Juror no. 38 had stated that she had retired from the Department of Defense as a program analyst in 2003, approximately three years before Sharp's trial. When questioned on this topic at the hearing on remand, the State indicated that it was not aware of Juror no. 38's status as a retiree, despite that fact being clearly stated on her juror questionnaire. Thus, I cannot assume, as the majority does, that the State was aware of the answers provided by Jurors no. 27 and 11 on their questionnaires or that the State would have struck no. Jurors 27 and 11 for allegedly not answering questions truthfully.

Second, the majority assumes that Jurors no. 27 and 11 actually had prior convictions. However, nothing in the record supports this assumption. The only indication in the record that Jurors no. 27 and 11 had any prior convictions was the assertion by the prosecutor. "[U]nsworn statements, factual assertions, and arguments of counsel are not evidence." Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App. 2005). On the other hand, the responses of Jurors no. 27 and no. 11 on their juror questionnaires, which, as the majority recognizes, were "sworn" under oath, indicated that neither had any prior convictions. 151 So.3d at 375. Although the trial court noted generally in its order that a peremptory strike based on information that a potential juror has a criminal history is race neutral (a statement with which I do not disagree), the trial court never made a finding of fact as to whether Jurors no. 27 and 11 actually had any prior convictions.

In addition, the alleged "records" the State referred to on remand to support its assertion that Jurors no. 27 and 11 had prior convictions are not included in the record before this Court. Although I do not disagree with the majority that criminal convictions are a matter of public record, and the State, in its application for rehearing, does assert that the convictions of Jurors no. 27 and 11 can be found on alacourt.com, it is well settled that "[a]n appellate court cannot consider matters and allegations outside the record." Childs v. State, 574 So.2d 1023, 1024 (Ala. Crim.App.1990). In addition, although "[t]his Court may take judicial notice of its own records,"23 Wilkerson v. State, 70 So.3d 442, 448 n. 2 (Ala.Crim.App.2011), "[g]enerally, a court may not take judicial notice of the records of another court." Worthington v. Amerson, 741 So.2d 437, 438 n. 2 (Ala.Civ.App.1999). As the Alabama Supreme Court explained in Green Tree-AL LLC v. White, 55 So.3d 1186 (Ala.2010):

55 So.3d at 1193 (quoting Ex parte Jett, 5 So.3d 640, 645-46 (Ala.2007) (See, J., concurring specially)). See also Nesby v. City of Montgomery, 652 So.2d 784, 786 (Ala. Crim.App.1994) ("This Court cannot take judicial notice of `other proceedings.'"). Although it may have been permissible for the trial court to have taken judicial notice of the State's alleged "records" of convictions if those convictions had occurred in the Madison Circuit Court, there is no indication in the record before this Court that the trial court did so. Indeed, there is no indication in the record that the trial court even looked at the alleged records relied on by the State — the trial court did not mention these "records" in its order. Rather, the trial court merely accepted at face value the State's explanation without considering all the relevant circumstances.

Notably, the State had the opportunity on remand to provide support for its assertion that Jurors no. 27 and 11 had prior convictions; it failed to do so. When Sharp pointed out in his written response the lack of support in the record for the assertion that Jurors no. 27 and 11 had prior convictions and the fact that the juror questionnaires established no such prior convictions, the State did not respond to the argument in its written reply. I recognize that "[t]he fact that a prosecutor's stated reason for striking a juror is not reflected in the record does not necessarily make that reason pretextual." Martin v. State, 62 So.3d 1050, 1060 (Ala.Crim.App. 2010). In addition, this Court has held that "[t]here is no requirement that a prosecutor establish evidentiary support for every strike in every case, especially where the defendant has not specifically questioned the validity of the prosecutor's explanations or demanded further proof." Hall v. State, 816 So.2d 80, 85 (Ala.Crim. App.1999) (emphasis added). However, under the specific circumstances in this case — among other things, where Sharp specifically questioned the validity of this reason for striking Jurors no. 27 and 11 in his written response and this reason is not supported by the record — I believe it was incumbent on the State to at least reply to Sharp's argument, if not to provide evidence of the alleged prior convictions. Cf., Ex parte Thomas, 601 So.2d 56, 58 (Ala. 1992) (holding that the trial court erred in not ordering the State to provide to the defense the document listing misdemeanors and traffic infractions of potential jurors that was used by the State as the sole basis for striking several African-American veniremembers because, in refusing to do so, the trial court merely "accept[ed] at face value the State's ostensibly facially neutral explanations for the use of its peremptory strikes," which is prohibited).

Therefore, I cannot, as the majority does, simply assume that the prosecutor's unsworn factual assertion that no. Jurors 27 and 11 had prior convictions is true and assume that the sworn statements by Jurors no. 27 and 11 on their juror questionnaires are false. Rather, all I am permitted to do is consider the circumstances in the record before me, all of which lead me to conclude that the State's failure to question Jurors no. 27 and 11 cannot be excused but must be considered evidence, albeit not conclusive by itself, that the prior-conviction reason for striking Jurors no. 27 and 11 was a pretext for discrimination.

Also evidence of discrimination is the disparate treatment disclosed by the record with respect to the prior-conviction reason. The State struck Jurors no. 27 and 11, as well as Juror no. 47, all African-Americans, in part, because they had at least one prior conviction. Yet the State did not strike Juror no. 24, a Caucasian, who stated on his questionnaire that he had previously been convicted of assault, and Juror no. 24 sat on Sharp's jury. As this Court explained in Yancey v. State, 813 So.2d 1 (Ala.Crim.App.2001):

813 So.2d at 7. See also Rice v. State, 84 So.3d 144, 149 (Ala.Crim.App.2010), and Preachers v. State, 963 So.2d 161, 167-69 (Ala.Crim.App.2006).

The majority concludes that there was no disparate treatment by the State in this regard because, it says, Jurors no. 27 and 11 were not "similarly situated" to Juror no. 24. In reaching this conclusion, the majority again assumes, with no support in the record, that Jurors no. 27 and 11 actually had prior convictions and reasons that because Juror no. 24 disclosed his prior conviction on his juror questionnaire while Jurors no. 27 and 11 did not disclose their alleged prior convictions on their juror questionnaires, Juror no. 24 cannot be "similarly situated" to Jurors no. 27 and 11 for purposes finding disparate treatment. As already explained, however, I cannot assume that Jurors no. 27 and 11 actually had prior convictions when the record does not support that assumption. Likewise, the record reflects that the alleged failure of Jurors no. 27 and 11 to answer questions truthfully was not a basis offered by the State for striking these jurors nor was it a basis offered by the State to explain the disparate treatment.

As noted above, the State did not respond to Sharp's argument in his written response that the record did not support the assertion that Jurors no. 27 and 11 had prior convictions. In fact, the State failed in its written reply to respond to any of Sharp's arguments. Rather, the State made only a general denial of any discriminatory intent and claimed that Sharp's numerous arguments regarding disparate treatment were based on a flawed analysis. Specifically, the State argued that its strikes were based on the aggregate characteristics of a particular juror and that none of the Caucasian jurors in this case who were not struck by the State shared all the same aggregate characteristics as the African-American jurors who were struck and, thus, that there could be no disparate treatment. The majority's view is similar — it picks one difference between Jurors no. 27 and 11 and Juror no. 24 and concludes that the jurors were not "similarly situated" because of that single difference. Both the State and the majority appear to believe that as long as there is at least one alleged difference between a struck African-American juror and a Caucasian juror who was not struck, there can be no disparate treatment.

However, "to prove disparate treatment in jury selection, it is not necessary to show that the excluded venire panelist was similarly situated to a white potential juror in all respects." United States v. Torres-Ramos, 536 F.3d 542, 559 (6th Cir.2008). Indeed, the likelihood of two potential jurors sharing all the same characteristics and having no differences at all is remote, at best, which is why such a view has been expressly rejected by the United States Supreme Court. As explained in Dretke:

545 U.S. at 247 n. 6, 125 S.Ct. 2317. The record here reflects no significant differences between Juror no. 24 and Jurors no. 27 and 11 that would render them not "similarly situated" for purposes of disparate-treatment analysis.

The totality of the circumstances — including the State's lack of questioning of jurors regarding their prior convictions, the lack of support in the record for the State's proffer that Jurors no. 27 and 11 had prior convictions, the disparate treatment of African-American and Caucasian jurors who had prior convictions, and the fact that the State also proffered for striking Jurors no. 27 and 11 the pretextual reason that Jurors no. 27 and 11 were not sufficiently intelligent, as explained above — leaves me no choice but to conclude that the prior-conviction reason for striking Jurors no. 27 and 11 was also pretextual.

III.

The State also proffered as a reason for striking Juror no. 27 that she had answered "no" on question 79 on the juror questionnaire and proffered as a reason for striking Juror no. 11 that she had not answered question 79 on the questionnaire and had not "fully" answered question 74 on the questionnaire. With respect to Juror no. 27, although she did, in fact, answer "no" to question 79, indicating that she could not be fair if she had heard anything in the media regarding this case, Juror no. 27 indicated that she had not, in fact, heard anything in the media regarding the case. During general voir dire of the entire venire, Juror no. 27 did not respond when asked if anyone had read or heard about the case through the media. On the juror questionnaire, the following six questions — questions 68, 69, 70, 71, 78, and 79 — asked about the potential jurors' knowledge of the case:

Juror no. 27 answered "no" to question 68, "none" to question 69, "no" to questions 70 and 71, and "nothing" to question 78. As applied to Juror no. 27 then, question 79 was nothing more than a hypothetical question and, in context, when Juror no. 27 answered "no" to question 79, she was not indicating that she could not be fair and impartial in the case but was indicating that if the circumstances were different, i.e., if she had actually heard about the case through the media, she would not be able to be fair and impartial. Thus, this answer by Juror no. 27 was no basis for the State's proffered "concern." Indeed, a simple question during voir dire could have cleared up any "concern" by the State regarding this juror's impartiality. However, the State did not question Juror no. 27 about her answer to question 79. Indeed, as noted previously, Juror no. 27 was not questioned individually at all.

With respect to Juror no. 11, she, too, did not respond during general voir dire when asked if anyone had read or heard about the case through the media. In addition, she, too, indicated on the questionnaire that she had not heard anything about the case, answering "no" to questions 68, 70, and 71, not answering question 69, and answering "nothing" to question 78. Because Juror no. 11 had heard nothing about the case, there was no reason for her to answer question 79 which, as with Juror no. 27, was purely hypothetical as applied to her. Moreover, as with Juror no. 27, the State did not question this juror about her failure to answer question 79. Finally, the record reflects that many potential jurors did not answer question 79 on the questionnaire. Of particular importance here is the fact that Jurors no. 24, 29, 33, 66, 68, and 79 — all Caucasians — also did not answer question 79 on the questionnaire, but none of these jurors was struck by the State, and all were chosen to sit on Sharp's jury.24 Although the lone African-American juror who sat on Sharp's jury also did not answer question 79 on the questionnaire, this does not diminish the evident disparate treatment in the record.

In addition, question 74 on the questionnaire asked:

Juror no. 11 answered "no" to this question but did not explain as requested. However, of the 14 jurors selected for service, only one provided an explanation to this question or, as phrased by the prosecutor, "fully" answered this question. Although all 14 jurors selected to serve answered "no" to this question — as did Juror no. 11 — 12 of those jurors provided no explanation at all for their answer, just like Juror no. 11, and one indicated "N/A." Thus, it would not appear that the State was overly concerned about the failure of jurors to "fully" answer question 74, despite its claim to the contrary at the hearing on remand. "This court has condemned the failure to strike white venirepersons who share the same characteristics as black venirepersons who were struck." Bishop v. State, 690 So.2d 498, 500 (Ala.Crim.App.1995). Moreover, the State did not question Juror no. 11, or any of the potential jurors, with respect to question 74.

Accordingly, based on the disparate treatment and lack of questioning, and in light of the other pretextual reasons proffered by the State for striking Jurors no. 27 and 11, as discussed above, I must conclude that these reasons for striking Jurors no. 27 and 11 were also pretextual.

IV.

Finally, the State proffered as its "first" reason for striking Juror no. 11 that she was a Seventh Day Adventist and, thus, that she could not work on Saturdays because of her religious beliefs. The record reflects that during group voir dire, the trial court informed the venire that the trial might last through Saturday of that week and asked if anyone had a problem with working Saturday and, if so, to write that on the questionnaires they were going to complete that afternoon or inform the court during individual voir dire. Juror no. 11 did not state on her questionnaire that she had a problem with working on Saturday, although she did indicate on the questionnaire that she was a Seventh Day Adventist. The State also did not question Juror no. 11 about her ability to work on Saturday.25 Rather, the State merely assumed, based solely on religious affiliation, that Juror no. 11 could not work on Saturday. The fact, however, that a person holds a certain religious affiliation does not establish that he or she subscribes to all of the beliefs of that religion. As noted previously, a group bias where the trait of concern — in this case, the inability to work on Saturday — was not shown to apply to this particular juror is evidence that the proffered reason for striking Juror no. 11 is a sham or pretext for discrimination.

In addition, the State's lack of questioning of this juror, which could have easily cleared up any concern as to whether this juror could work on Saturday, is also evidence of discrimination. Therefore, for these reasons, and in light of the State's other pretextual reasons proffered for the strike of Juror no. 11, as explained above, I must conclude that this reason for striking Juror no. 11 was also pretextual.

V.

My conclusion that all of the State's reasons for striking Juror no. 27 and Juror no. 11 were pretextual is buttressed by the questionable reasons the State proffered for its strikes of other African-American jurors. Having determined that the reasons for striking Jurors no. 27 and 11 were pretextual, I would closely scrutinize the State's remaining strikes. Once the State's reasons for striking a potential juror are found to be invalid, the reasons for striking other jurors become suspect and are subject to greater scrutiny. See, e.g., Ex parte Bird, 594 So.2d 676 (Ala.1991), and Maddox v. State, 708 So.2d 220 (Ala. Crim.App.1997). As the Alabama Supreme Court explained in Ex parte Bird:

594 So.2d at 683 (emphasis added).

One of the reasons the State proffered for striking Juror no. 39 was that he had a friend who was a pastor and either was himself or knew someone involved in prison ministries and one of the reasons the State proffered for striking Juror no. 52 was that she was studying to be a minister and "that was not the kind of juror [the State was] looking for." (RTR, R. 13.) However, the State did not strike Juror no. 79, a Caucasian, who was a minister and who indicated on his questionnaire that he had previously volunteered visiting inmates in prison.

In addition, one of the reasons the State proffered for striking Juror no. 47, an African-American, was that she had answered on the juror questionnaire that she believed the State should have to prove its case beyond all doubt and that a criminal defendant should have to testify on his or her own behalf. However, when proffering this reason at the hearing on remand, the State admitted that many other jurors, some of whom sat on Sharp's jury, had answered similarly. Indeed, the record reflects that half of the petit jurors had answered similarly to Juror no. 47. Specifically, Jurors no. 5, 29, 44, 46, 59, and 70 — all Caucasians who sat on Sharp's jury — answered on their questionnaires that they believed the State should have to prove its case beyond all doubt. Additionally, Caucasian Juror no. 59 answered on the questionnaire — exactly like struck African-American Juror no. 47 — that he believed a criminal defendant should have to testify on his or her own behalf.

Finally, one of the reasons proffered for striking Juror no. 74 was that she had a son who had been the victim of two robberies and that there had been no arrest or conviction for either of those crimes. Similarly, one of the reasons proffered for striking Juror no. 55 was that she had a son who had been the victim of attempted murder and that there had been no arrest or conviction for that crime. However, the State did not strike Juror no. 66 — a Caucasian who sat on Sharp's jury — who indicated that he had been the victim of assault and, although an arrest was made, no conviction resulted. Likewise, the State did not strike Juror no. 68 — a Caucasian who also sat on Sharp's jury — and who had been the victim of date rape and there had been no arrest or conviction in connection with that crime. Additionally, several other Caucasian jurors who sat on Sharp's jury had, themselves, been victims of violent crimes similar to that endured by Juror no. 74's son, although all of those crimes resulted in arrests and convictions.

I recognize the inherent difficulty facing prosecutors who have to provide reasons for peremptory strikes years, and hundreds of trials, after those strikes were made. I also recognize that disparate treatment of jurors may have a legitimate explanation. Peremptory strikes are, after all, often based on instinct. However, as the United States Supreme Court explained in Dretke:

545 U.S. at 252, 125 S.Ct. 2317.

Under the circumstances in this case, after thoroughly reviewing the record, examining the reasons proffered by the State for its strikes and the arguments made by Sharp in response,26 and considering all relevant circumstances, I have no choice but to conclude that the State exercised its peremptory strikes in a discriminatory manner against African-Americans, in violation of Batson. Therefore, I believe that Sharp is entitled to a new trial, and I must respectfully dissent.

WELCH, J., concurs.