Gamble motion in Alabama

1998Id. at 4-5 .

1998Id. at 4-5 .

2010In Miller v. Florida, 459 U.S. 1158 , 103 S.Ct. 802 , 74 L.Ed.2d 1005 (1983), Justice Marshall stated the following in his dissent from the denial of certiorari review: "An appellate court, in the performance of the viewing function which this Court has held indispensable to a constitutionally acceptable capital punishment scheme, must examine the sentences imposed in all capital cases in the jurisdiction in order 'to ensure that similar results are reached in similar cases.’ Proffitt v. Florida, 428 U.S. 242 (1976) (opinion of Stewart, Powell and Stevens, JJ.).

2010In Miller v. Florida, 459 U.S. 1158 , 103 S.Ct. 802 , 74 L.Ed.2d 1005 (1983), Justice Marshall stated the following in his dissent from the denial of certiorari review: "An appellate court, in the performance of the viewing function which this Court has held indispensable to a constitutionally acceptable capital punishment scheme, must examine the sentences imposed in all capital cases in the jurisdiction in order 'to ensure that similar results are reached in similar cases.’ Proffitt v. Florida, 428 U.S. 242 (1976) (opinion of Stewart, Powell and Stevens, JJ.).

2000The trial court properly denied Gamble's challenge to the venire and to the jury on these grounds. "`In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.'" Ex parte Land, 678

2000The trial court properly denied Gamble's challenge to the venire and to the jury on these grounds. "`In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.'" Ex parte Land, 678

2000The trial court properly denied Gamble's challenge to the venire and to the jury on these grounds. "`In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.'" Ex parte Land, 678

2000In Borden v. State, 769 So.2d 935 (Ala. Cr.App.1997), we said: "`"The court in Proffitt v. Wainwright, [ 685 F.2d 1227 (11th Cir.1982), cert. denied, 464 U.S. 1002 , 104 S.Ct. 508 , 78 L.Ed.2d 697 (1983)], acknowledged in a footnote that in Snyder v. Massachusetts, 291 U.S. 97 , 54 S.Ct. 330 , 78 L.Ed. 674 (1934), `which was a capital case, [the Court] stated that the sixth amendment privilege of confrontation could "be lost by consent or at times even by misconduct." Snyder v. Massachusetts, 291 U.S. at 106 , 54 S.Ct. at 332 .' Proffitt v. Wainwright, supra, at 1257, n. 43.

2000In Borden v. State, 769 So.2d 935 (Ala. Cr.App.1997), we said: "`"The court in Proffitt v. Wainwright, [ 685 F.2d 1227 (11th Cir.1982), cert. denied, 464 U.S. 1002 , 104 S.Ct. 508 , 78 L.Ed.2d 697 (1983)], acknowledged in a footnote that in Snyder v. Massachusetts, 291 U.S. 97 , 54 S.Ct. 330 , 78 L.Ed. 674 (1934), `which was a capital case, [the Court] stated that the sixth amendment privilege of confrontation could "be lost by consent or at times even by misconduct." Snyder v. Massachusetts, 291 U.S. at 106 , 54 S.Ct. at 332 .' Proffitt v. Wainwright, supra, at 1257, n. 43.

2000There is no merit to Gamble's claim that death-qualifying a jury is unconstitutional. "[T]he State may properly ask the veniremembers questions pursuant to Witherspoon v. Illinois, [ 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968)], and Wainwright v. Witt, [ 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985)].

2000There is no merit to Gamble's claim that death-qualifying a jury is unconstitutional. "[T]he State may properly ask the veniremembers questions pursuant to Witherspoon v. Illinois, [ 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968)], and Wainwright v. Witt, [ 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985)].

2000The United States Supreme Court resolved this issue in Lockhart v. McCree, 476 U.S. 162 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986), holding that the Constitution does not bar the States from `deathqualifying' juries in capital cases, and that death-qualifying a jury does not deprive a defendant of a fair and impartial jury, and Alabama courts have consistently held likewise.

2000The United States Supreme Court resolved this issue in Lockhart v. McCree, 476 U.S. 162 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986), holding that the Constitution does not bar the States from `deathqualifying' juries in capital cases, and that death-qualifying a jury does not deprive a defendant of a fair and impartial jury, and Alabama courts have consistently held likewise.

2000In Borden v. State, 769 So.2d 935 (Ala. Cr.App.1997), we said: "`"The court in Proffitt v. Wainwright, [ 685 F.2d 1227 (11th Cir.1982), cert. denied, 464 U.S. 1002 , 104 S.Ct. 508 , 78 L.Ed.2d 697 (1983)], acknowledged in a footnote that in Snyder v. Massachusetts, 291 U.S. 97 , 54 S.Ct. 330 , 78 L.Ed. 674 (1934), `which was a capital case, [the Court] stated that the sixth amendment privilege of confrontation could "be lost by consent or at times even by misconduct." Snyder v. Massachusetts, 291 U.S. at 106 , 54 S.Ct. at 332 .' Proffitt v. Wainwright, supra, at 1257, n. 43.

2000In Borden v. State, 769 So.2d 935 (Ala. Cr.App.1997), we said: "`"The court in Proffitt v. Wainwright, [ 685 F.2d 1227 (11th Cir.1982), cert. denied, 464 U.S. 1002 , 104 S.Ct. 508 , 78 L.Ed.2d 697 (1983)], acknowledged in a footnote that in Snyder v. Massachusetts, 291 U.S. 97 , 54 S.Ct. 330 , 78 L.Ed. 674 (1934), `which was a capital case, [the Court] stated that the sixth amendment privilege of confrontation could "be lost by consent or at times even by misconduct." Snyder v. Massachusetts, 291 U.S. at 106 , 54 S.Ct. at 332 .' Proffitt v. Wainwright, supra, at 1257, n. 43.

2000In Borden v. State, 769 So.2d 935 (Ala. Cr.App.1997), we said: "`"The court in Proffitt v. Wainwright, [ 685 F.2d 1227 (11th Cir.1982), cert. denied, 464 U.S. 1002 , 104 S.Ct. 508 , 78 L.Ed.2d 697 (1983)], acknowledged in a footnote that in Snyder v. Massachusetts, 291 U.S. 97 , 54 S.Ct. 330 , 78 L.Ed. 674 (1934), `which was a capital case, [the Court] stated that the sixth amendment privilege of confrontation could "be lost by consent or at times even by misconduct." Snyder v. Massachusetts, 291 U.S. at 106 , 54 S.Ct. at 332 .' Proffitt v. Wainwright, supra, at 1257, n. 43.

2000As we stated in Hyde v. State, 778 So.2d 199 (Ala.Cr.App.1998): "The trial court has almost absolute discretion in deciding whether to grant or to deny a defendant treatment as a youthful offender, and that decision will not be overturned absent an affirmative showing that the decision was arbitrary or was made without some investigation or examination of the defendant.

2000There is no merit to Gamble's claim that death-qualifying a jury is unconstitutional. "[T]he State may properly ask the veniremembers questions pursuant to Witherspoon v. Illinois, [ 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968)], and Wainwright v. Witt, [ 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985)].

2000There is no merit to Gamble's claim that death-qualifying a jury is unconstitutional. "[T]he State may properly ask the veniremembers questions pursuant to Witherspoon v. Illinois, [ 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968)], and Wainwright v. Witt, [ 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985)].

2000The trial court properly denied Gamble's challenge to the venire and to the jury on these grounds. "`In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.'" Ex parte Land, 678

2000The trial court properly denied Gamble's challenge to the venire and to the jury on these grounds. "`In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.'" Ex parte Land, 678