Ex Parte Watkins, 509 So. 2d 1074 (Ala. 1987). · Go Syfert
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Ex Parte Watkins, 509 So. 2d 1074 (Ala. 1987). Cases Citing This Book View Copy Cite
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cited 4× by 3 distinct cases, last quoted 2001 · 2 courts · …notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petition… at p. 1077 ✓
cited 3× by 3 distinct cases, last quoted 2007 · …the defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred. at p. 1077 ✓
150 citation events (65 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Carroll v. State
Ala. Crim. App. · 2015 · quote attribution · 1 verbatim quote · confidence high
for an appellate court to find plain error in the batson ... context, the court must find that the record raises an inference of purposeful discrimination by the state in the exercise of peremptory challenges
discussed Cited as authority (rule) Bohannon v. State
Ala. Crim. App. · 2015 · confidence medium
P. “ ‘To find plain error in the context of a Batson .,., violation, the record must supply an inference that the prosecutor was “engaged in the practice of purposeful discrimination.” ’ Blackmon v. State, 7 So.3d 397, 425 (Ala.Crim.App.2005) (quoting Ex parte Watkins, 509 So.2d 1074, 1076 (Ala.1987)).
discussed Cited as authority (rule) White v. State
Ala. Crim. App. · 2013 · confidence medium
“To find plain error in the context of a Batson or J.E.B. violation, the record must supply an inference that the prosecutor was ‘engaged in the practice of purposeful discrimination.’ ” Blackmon v. State, 7 So.3d 397, 425 (Ala.Crim.App.2005) (quoting Ex parte Watkins, 509 So.2d 1074, 1076 (Ala.1987)).
discussed Cited as authority (rule) Lockhart v. State
Ala. Crim. App. · 2013 · confidence medium
Also, “[t]o find plain error in the context of a Batson ... violation, the record must' supply an inference that the prosecutor was ‘engaged in the practice of purposeful discrimination.’ ” Blackmon v. State, 7 So.3d 397, 425 (Ala.Crim.App.2005) (quoting Ex parte Watkins, 509 So.2d 1074, 1076 (Ala.1987)).
discussed Cited as authority (rule) Stanley v. State
Ala. Crim. App. · 2011 · confidence medium
P. With regard to a finding of plain error pursuant to Batson or J.E.B., “the record must supply an inference that the prosecutor was ‘engaged in the practice of purposeful discrimination.’ Ex parte Watkins, 509 So.2d 1074, 1076 (Ala.1987).” Blackmon v. State, 7 So.3d 397, 425 (Ala.Crim.App.2005).
discussed Cited as authority (rule) McCray v. State
Ala. Crim. App. · 2010 · confidence medium
“To find plain error in the context of a Batson or J.E.B. violation, the record must supply an inference that the prosecutor was ‘engaged in the practice of purposeful discrimination.’ ” Blackmon v. State, 7 So.3d 397, 425 (Ala.Crim.App.2005) (quoting Ex parte Watkins, 509 So.2d 1074, 1076 (Ala.1987)).
discussed Cited as authority (rule) Brown v. State
Ala. Crim. App. · 2010 · confidence medium
“To find plain error in the context of a Batson or J.E.B. [v. Alabama, 511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994),] violation, the record must supply an inference that the prosecutor was ‘engaged in the practice of purposeful discrimination.’ Ex parte Watkins, 509 So.2d 1074,1076 (Ala.1987).” Blackmon v. State, 7 So.3d 397, 425 (Ala.Crim.App.2005).
discussed Cited as authority (rule) Gobble v. State (2×) also: Cited "see"
Ala. Crim. App. · 2010 · confidence medium
Additionally, the court may consider whether the State used all or most of its strikes against members of one gender.” 698 So.2d at 167-68. “ ‘To find plain error in the context of a Batson or J.E.B. violation, the record must supply an inference that the prosecutor was ‘engaged in the practice of purposeful discrimination.’ Ex parte Watkins, 509 So.2d 1074, 1076 (Ala.1987).” Blackmon v. State, 7 So.3d 397, 425 (Ala.Crim.App.2005) (opinion on application for rehearing).
discussed Cited as authority (rule) Sharifi v. State
Ala. Crim. App. · 2008 · confidence medium
"To find plain error in the context of a Batson or J.E.B. violation, the record must supply an inference that the prosecutor was `engaged in the practice of purposeful discrimination.' Ex parte Watkins, 509 So.2d 1074, 1076 (Ala.1987)." Blackmon v. State, [Ms. CR-01-2126, August 25, 2006] ___ So.2d ___, ___ (Ala. Crim.App.2005) (opinion on application for rehearing).
discussed Cited as authority (rule) Saunders v. State
Ala. Crim. App. · 2007 · confidence medium
“The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred.” Ex parte Watkins, 509 So.2d 1074, 1077 (Ala.1987).
discussed Cited as authority (rule) Brown v. State
Ala. Crim. App. · 2007 · confidence medium
Rule 45A, Ala.R.App.P. *892 “To find plain error in the context of a Batson or J.E.B. violation, the record must supply an inference that the prosecutor was ‘engaged in the practice of purposeful discrimination.’ Ex parte Watkins, 509 So.2d 1074, 1076 (Ala.1987).
discussed Cited as authority (rule) Ex Parte Walker
Ala. · 2007 · confidence medium
In both Jackson and [Ex parte] Godbolt [, 546 So.2d 991 (Ala. 1987),] the records were sufficient to show that prima facie cases of purposeful discrimination could be made by the defendants; therefore, those cases were remanded for determinations on the issue under the guidelines set out in Batson . " 509 So.2d at 1076-77 (second emphasis added).
discussed Cited as authority (rule) Belisle v. State (2×)
Ala. Crim. App. · 2007 · confidence medium
As this Court stated in Eggers v. State, 914 So.2d 883 (Ala.Crim.App.2004): “ ‘ “The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred.” Ex parte Watkins, 509 So.2d 1074, 1077 (Ala.1987).
discussed Cited as authority (rule) Blackmon v. State (2×)
Ala. Crim. App. · 2006 · confidence medium
To find plain error in the context of a Batson or J.E.B. violation, the record must supply an inference that the prosecutor was "engaged in the practice of purposeful discrimination." Ex parte Watkins, 509 So.2d 1074, 1076 (Ala.1987).
discussed Cited as authority (rule) Eggers v. State
Ala. Crim. App. · 2005 · confidence medium
App.2003): "`The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred.' Ex parte Watkins, 509 So.2d 1074, 1077 (Ala.1987). `Without any evidence in the record on appeal to support the allegation of error, this court cannot consider the alleged error even under the "plain error" doctrine.' Kuenzel v. State, 577 So.2d 474, 482 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.1991). "`"Even though ... this Court [is] required to search the record for plain error in every case in whic…
discussed Cited as authority (rule) Gavin v. State (2×) also: Cited "see, e.g."
Ala. Crim. App. · 2003 · confidence medium
As noted above, this issue is being raised for the first time on appeal, and Gavin concedes in his brief that nothing in the record supports his assertion regarding Dr. Pustilnik because, he admits, this issue only came to his attention "subsequent to the closure of the record in this cause." (Gavin's brief at p. 114.) [32] "The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act *987 upon which error is predicated ever occurred." Ex parte Watkins, 509 So.2d 1074, 1077 (Ala.1987).
discussed Cited as authority (rule) Turner v. State
Ala. Crim. App. · 2003 · signal: cf. · confidence medium
Cf. Ex parte Watkins, 509 So.2d 1074, 1076-77 (Ala.1987), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987) (wherein the Court, addressing a claim made pursuant to Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), which had been neither raised nor preserved in the record, wrote, `The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which the error is predicated ever occurred'); White v. State, 587 So.2d 1218 (Ala.Cr.App.1990), affirmed, 587 So.2d 1236 (Ala.1991) (wherein thi…
discussed Cited as authority (rule) Johnson v. State
Ala. Crim. App. · 2001 · confidence medium
"Without any evidence in the record on appeal to support the allegation of error, this court cannot consider the alleged error even under the `plain error' doctrine of Rule 45A, [Ala.R.App.P.] `The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred.' Ex parte Watkins, 509 So.2d 1074, 1077 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987). "`Even though ... this Court [is] required to search the record for plain error in every case in which the death se…
discussed Cited as authority (rule) McNair v. Haley
M.D. Ala. · 2000 · confidence medium
P. As this Court stated in Ex parte Watkins, 509 So.2d 1074, 1077 (Ala.1987), cert. denied, Watkins v. Alabama, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987), ‘[t]he defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred.’ In effect, McNair is requesting that we remand this case for a hearing on this issue, on the strength of the circuit clerk’s affidavit, so that a record can be created for appellate review.
discussed Cited as authority (rule) Jackson v. State
Ala. Crim. App. · 1999 · confidence medium
"As this Court stated in Ex parte Watkins, 509 So.2d 1074, 1077 (Ala.1987), cert. denied, Watkins v. Alabama, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987), `[t]he defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred.' In effect, McNair is requesting that we remand this case for a hearing on this issue, on the strength of the circuit clerk's affidavit, so that a record can be created for appellate review.
discussed Cited as authority (rule) Ex Parte McNair
Ala. · 1994 · confidence medium
As this Court stated in Ex parte Watkins, 509 So.2d 1074, 1077 (Ala. 1987), cert. denied, Watkins v. Alabama, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987), "[t]he defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred." In effect, McNair is requesting that we remand this case for a hearing on this issue, on the strength of the circuit clerk's affidavit, so that a record can be created for appellate review.
discussed Cited as authority (rule) Hutcherson v. State
Ala. Crim. App. · 1994 · confidence medium
The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred...." Ex parte Watkins, 509 So.2d 1074, 1076-77 (Ala.1987), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).
discussed Cited as authority (rule) Kuenzel v. State (2×)
Ala. Crim. App. · 1990 · confidence medium
"The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred." Ex parte Watkins, 509 So.2d 1074, 1077 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).
discussed Cited as authority (rule) Bui v. State
Ala. Crim. App. · 1988 · confidence medium
"The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred...." Ex parte Watkins, 509 So.2d 1074, 1077 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).
discussed Cited as authority (rule) Freeman v. State
Ala. Crim. App. · 1988 · confidence medium
The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred (i.e., the state's use of its peremptory challenges to exclude blacks)." Ex parte Watkins, 509 So.2d 1074, 1076-77 (Ala.1987).
discussed Cited "see" Lane v. State
Ala. Crim. App. · 2013 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).’”’ “Smith v. State, 756 So.2d 892, 915 (Ala.Crim.App.1998), aff’d, 756 So.2d 957 (Ala.2000) (quoting Rieber v. State, 663 So.2d 985, 991 (Ala.Crim.App.1994), quoting in turn other cases).” Ex parte Walker, 972 So.2d 737, 742 (Ala.2007). 1.
cited Cited "see" Floyd v. State
Ala. · 2012 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 .
discussed Cited "see" McMillan v. State
Ala. Crim. App. · 2010 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).” ’ ” “ ‘Smith v. State, 756 So.2d 892, 915 (Ala.Crim.App.1998), aff'd, 756 So.2d 957 (Ala.2000) (quoting Rieber v. State, 663 So.2d 985, 991 (Ala.Crim.App.1994), quoting in turn other cases).’ “Ex parte Walker, 972 So.2d [737] at 742 [ (Ala.2007) ].” Ex parte Sharp, [Ms. 1080959, December 4, 2009] - So.3d -, - (Ala.2009).
discussed Cited "see" Reynolds v. State
Ala. Crim. App. · 2010 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).’ ” ’ “Smith v. State, 756 So.2d 892, 915 (Ala.Crim.App.1998), aff'd, 756 So.2d 957 (Ala.2000) (quoting Rieber v. State, 663 So.2d 985, 991 (Ala.Crim.App.1994), quoting in turn other cases).” Ex parte Walker, 972 So.2d 737, 742 (Ala.2007), cert. denied, 552 U.S. 1077 , 128 5.Ct. 806, 169 L.Ed.2d 608 (2007).
discussed Cited "see" Dotch v. State
Ala. Crim. App. · 2010 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).” ’ ” “ ‘Smith v. State, 756 So.2d 892, 915 (Ala.Crim.App.1998), aff'd, 756 So.2d 957 (Ala.2000) (quoting Rieber v. State, 663 So.2d 985, 991 (Ala.Crim.App.1994), quoting in turn other cases).’ “Ex parte Walker, 972 So.2d [737] at 742 [(Ala.2007)].” Ex parte Sharp, [Ms. 1080959, December 4, 2009] — So.3d — (Ala.2009).
discussed Cited "see" Ex Parte Sharp, 1080959 (Ala. 12-4-2009)
Ala. · 2009 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).’ ” ’ “Smith v. State, 756 So.2d 892, 915 (Ala. Crim.App.1998), aff'd, 756 So.2d 957 (Ala.2000) (quoting Rieber v. State, 663 So.2d 985, 991 (Ala.Crim.App.1994), quoting in turn other cases).” Ex parte Walker, 972 So.2d at 742 .
discussed Cited "see" Lewis v. State (2×)
Ala. Crim. App. · 2007 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.1987).
discussed Cited "see" Floyd v. State (2×)
Ala. Crim. App. · 2007 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.1987).
discussed Cited "see" Duke v. State
Ala. Crim. App. · 2004 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).' " Guthrie v. State, 616 So.2d 913, 913 (Ala.Crim.App.1992)." See also Wilson v. State, 777 So.2d 856, 888 (Ala.Crim.App.1999), aff'd, 777 So.2d 935 (Ala.2000), cert. denied, 531 U.S. 1097 , 121 S.Ct. 826 , 148 L.Ed.2d 709 (2001); Smith v. State, 756 So.2d 892 (Ala.Crim.App.1998), aff'd, 756 So.2d 957 (Ala.2000).
discussed Cited "see" McNair v. Campbell
M.D. Ala. · 2004 · signal: accord · confidence high
The Alabama Supreme Court did not review the affidavit because doing so “would unduly enlarge the scope of the plain error review as authorized by our appellate rules.” 92 Ex parte McNair, 653 So.2d at 360; accord Ex Parte Watkins, 509 So.2d 1074, 1076 (Ala.1987).
discussed Cited "see" Lee v. State
Ala. Crim. App. · 2003 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.1987). [8] In a footnote, the appellant argues that it was improper for the trial court to instruct the veniremembers on their roles during the penalty phase before they had been selected as jurors.
discussed Cited "see" Duke v. State
Ala. Crim. App. · 2002 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).’ “Guthrie v. State, 616 So.2d 913, 913 (Ala.Crim.App.1992).” See also Wilson v. State, 777 So.2d 856, 888 (Ala.Crim.App.1999), aff'd, 777 So.2d 935 (Ala.2000), cert. denied, 531 U.S. 1097 , 121 S.Ct. 826 , 148 L.Ed.2d 709 (2001); Smith v. State, 756 So.2d 892 (Ala.Crim.App.1998), aff'd, 756 So.2d 957 (Ala.2000).
cited Cited "see" McGriff v. State
Ala. Crim. App. · 2001 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).
cited Cited "see" McGriff v. State
Ala. Crim. App. · 2000 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).
discussed Cited "see" Simmons v. State
Ala. Crim. App. · 2000 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).' "` Guthrie v. State, 616 So.2d 913, 914 (1992) ...' " Rieber v. State, 663 So.2d 985, 991 (Ala. Cr.App.1994), aff'd, 663 So.2d 999 (Ala.), cert. denied, 516 U.S. 995 , 116 S.Ct. 531 , 133 L.Ed.2d 437 (1995).
discussed Cited "see" Acklin v. State
Ala. Crim. App. · 2000 · signal: see · confidence high
See Watkins v. State , 509 So.2d 1071 , 1073 (Ala.Cr.App.), aff'd on remand, 509 So.2d 1071 (Ala.Cr.App. 1986), aff'd, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 (1987), and the cases cited therein.
cited Cited "see" Taylor v. State
Ala. Crim. App. · 2000 · signal: see · confidence high
See Watkins v. State, 509 So.2d 1071, 1073 (Ala.Cr.App. 1986), aff'd, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987), and the cases cited therein.
cited Cited "see" Perkins v. State
Ala. Crim. App. · 1999 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).
discussed Cited "see" Wilson v. State
Ala. Crim. App. · 1999 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).' " Guthrie v. State, 616 So.2d 913, 913 (Ala.Crim.App.1992) ...." Rieber v. State, 663 So.2d 985, 991 (Ala.Cr.
discussed Cited "see" Pressley v. State
Ala. Crim. App. · 1999 · signal: see · confidence high
See Watkins v. State, 509 So.2d 1071 , 1073 (Ala.Cr.App.), aff'd on remand, 509 So.2d 1071 (Ala.Cr.App. 1986), aff'd, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 (1987), and the cases cited therein.
cited Cited "see" Burgess v. State
Ala. Crim. App. · 1998 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074, 1076-77 (Ala.1987), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).
discussed Cited "see" Smith v. State
Ala. Crim. App. · 1998 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).' " Guthrie v. State, 616 So.2d 913, 914 (Ala.Crim.App.1992) (second bracketed language added [in Rieber ])." Rieber v. State, 663 So.2d 985, 991 (Ala.Cr.
discussed Cited "see" Hyde v. State
Ala. Crim. App. · 1998 · signal: see · confidence high
See Ex parte Watkins, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987).' " Guthrie v. State, 616 So.2d 913, 914 (Ala.Crim.App.1992) (second bracketed language added [in Rieber ])." Rieber v. State, 663 So.2d 985, 991 (Ala.Cr.
discussed Cited "see" Williams v. State
Ala. Crim. App. · 1996 · signal: see · confidence high
See Watkins v. State, 509 So.2d 1071, 1073 (Ala. Cr.App.), aff'd on remand, 509 So.2d 1071 (Ala.Cr.App.1986), aff'd, 509 So.2d 1074 (Ala.), cert. denied, 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987), and cases cited therein.
discussed Cited "see" Rieber v. State (2×)
Ala. Crim. App. · 1994 · signal: see · confidence high
See Ex parte Watkins , 509 So.2d 1074 (Ala.), cert. denied , 484 U.S. 918 , 108 S.Ct. 269 , 98 L.Ed.2d 226 (1987)." Guthrie v. State , 616 So.2d 913 , 913 (Ala.Crim.App. 1992) (second bracketed language added).
Retrieving the full opinion text from the archive…
Ex Parte Darryl Travis Watkins. (Re Darryl Travis Watkins
v.
State).
86-267.
Supreme Court of Alabama.
May 29, 1987.
509 So. 2d 1074
J. Louis Wilkinson and Virginia A. Vinson, Birmingham, for petitioner. Don Siegelman, Atty. Gen. and William D. Little, Asst. Atty. Gen., for respondent.
Houston.
Cited by 108 opinions  |  Published

Darryl Travis Watkins was convicted of capital murder and was sentenced to death pursuant to § 13A-5-31(a)(2), Code 1975. He appealed to the Court of Criminal Appeals, which affirmed his conviction and sentence and later overruled his application for rehearing), Watkins v. State, 509 So.2d 1056 (Ala.Cr.App. 1983). The defendant then petitioned this Court for a writ of certiorari, raising three issues for our review: 1) the constitutionality of the death penalty statute under which he was sentenced; 2) whether the deceased was a "victim" of the robbery; and 3) whether the state's failure to disclose allegedly exculpatory information violated his right to due process. This Court granted the writ. We affirmed the Court of Criminal Appeals' decision in reaffirming the constitutionality of the death penalty provision under which the defendant was convicted and further held that the deceased was a "victim" of the robbery within the meaning of § 13A-5-31(a)(2), Code 1975. However, we remanded the case with instructions to the Court of Criminal Appeals to remand it to the trial court in order to afford the defendant the opportunity to show, if he could, that the belated disclosure of allegedly exculpatory evidence "substantially affected" his right to a fair trial. Ex parteWatkins, 509 So.2d 1071 (Ala. 1984). The Court of Criminal Appeals remanded the case to the trial court, Watkins v. State,509 So.2d 1067 (Ala.Cr.App. 1984), which made findings of fact and concluded that the defendant's right to a fair trial had not been "substantially affected." On return to remand, the Court of Criminal Appeals affirmed, Watkins v. State,509 So.2d 1067 (Ala.Cr.App. 1985), and later overruled the application for rehearing. The defendant again petitioned this Court for a writ of certiorari to review the judgment of the Court of Criminal Appeals and claimed in his petition, for the first time, that the trial court had erred in excluding from the venire a prospective juror who merely expressed strong disapproval of the death penalty. We granted the writ but remanded the case to the Court of Criminal Appeals for it to consider this issue prior to any further review in this Court.Ex parte Watkins, 509 So.2d 1071 (Ala. 1986). After remand, the Court of Criminal Appeals held that the trial court did not err in excluding the juror from the venire. Watkins v. State,509 So.2d 1071 (Ala.Cr.App. 1986). The defendant again petitioned this Court for a writ of certiorari to review the judgment of the Court of Criminal Appeals and in his petition claimed, for the first time, that his constitutional rights had been violated because the state used its peremptory challenges to exclude prospective black jurors from the venire solely on account of their race. We granted the writ; however, this time we have elected to review not only the judgment of the Court of Criminal Appeals, but also the new issue which that court has not had the opportunity to address.

Having carefully read and considered the record, together with the briefs and arguments of counsel, we conclude that the judgment of the Court of Criminal Appeals is due to be affirmed.

As stated, the defendant claims that his constitutional rights were violated because the state used its peremptory challenges to exclude prospective black jurors from the venire solely on account of their race. He relies on Batson v.Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and this Court's recent decision in Ex parte Jackson, [MS. 84-1112, December 19, 1986] (Ala. 1986).

Batson reduced a defendant's burden of making a prima facie case of racial *Page 1076 discrimination in the state's use of its peremptory challenges. In Batson, the Court stated:

"[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group [citation omitted], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' [Citation omitted.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raise the necessary inference of purposeful discrimination.

"In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors."

476 U.S. at ___, 106 S.Ct. at 1722-23. Once the defendant has made a prima facie case of purposeful discrimination, then the state must come forward with valid nonracial reasons for its challenges.

In Jackson, this Court held, as a matter of state constitutional law, that a rule like the rule announced inBatson was to be applied retroactively to Jackson's trial. Consequently, that case was remanded to the Court of Criminal Appeals with instructions for it to remand the case to the trial court for a determination on the issue.

Subsequent to this court's decision in Jackson, the United States Supreme Court held, as a matter of federal constitutional law, that the Batson rule applied retroactively to all cases, state or federal, pending on direct review or not yet final. Griffith v. Kentucky, ___ U.S. ___, 107 S.Ct. 708,93 L.Ed.2d 649 (1987).

Thus, as a matter of both state and federal constitutional law, the Batson rule is to be applied retroactively to this defendant's trial. See also Ex parte Godbolt, [MS. 85-1287, May 14, 1987] (Ala. 1987) (case remanded for a determination as to whether prospective black jurors were unconstitutionally excluded from the jury).

Because this issue is raised for the first time on appeal, the defendant has requested that we review the record under our plain error rule, Rule 39(k), Ala.R. App.P., and remand for further proceedings, as we did in Jackson. However, we have carefully reviewed the record in this respect and we cannot find any plain error. Although the record does show that the defendant is black and the victim was white, it does not show that the state exercised any of its peremptory challenges to remove prospective black jurors from the venire. The record as a whole simply does not raise an inference that the state was engaged in the practice of purposeful discrimination. Under the plain error rule this Court will "notice any plain error ordefect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner." *Page 1077 (Emphasis added.) Rule 39(k), supra. The defendant cannot successfully argue that error is plain in the record when there is no indication in the record that the act upon which error is predicated ever occurred (i.e., the state's use of its peremptory challenges to exclude blacks). In both Jackson andGodbolt the records were sufficient to show that prima facie cases of purposeful discrimination could be made by the defendants; therefore, those cases were remanded for determinations on the issue under the guidelines set out inBatson.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY and STEAGALL, JJ., concur.

ADAMS, J., not sitting.

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