                         IN THE SUPREME COURT OF TENNESSEE
                                     AT JACKSON
                                         November 9, 2005 Session

               STATE OF TENNESSEE v. STEPHEN LYNN HUGUELEY

                         Automatic Appeal from the Court of Criminal Appeals
                               Criminal Court for Hardeman County
                              No. 6665 Jon Kerry Blackwood, Judge



                         No. W2004-00057-SC-DDT-DD - Filed March 15, 2006




                                 CONCURRING/DISSENTING OPINION

ADOLPHO A. BIRCH, JR., J., concurring and dissenting in part.

I write separately to express my extreme concern with the fact that of the eight peremptory strikes
used by the State to remove potential jurors, all eight were used to remove African-American jurors.
I agree with the majority, however, that the trial court’s failure to make specific findings on
defendant’s Batson1 objections, as well as the lack of a complete record, hinder meaningful appellate
review. What is apparent from the record is that seven of the African-American jurors removed–Ms.
Pirtle, Ms. Gibbs, Mr. Hudson, Mr. Woods, Ms. Ferguson, Ms. McKinnie and Ms. Heard–had
indicated on their jury questionnaires that they had personal reservations about the death penalty.2
I understand the prosecutor’s reluctance to seat these jurors, although I also note that during voir dire
each of them indicated a willingness to follow the law despite their personal beliefs. Since the jury
questionnaires were not included in the record, it is impossible to determine whether the prosecution
treated prospective jurors differently based on race. For instance, if we saw in the jury
questionnaires that non-minority jurors who expressed reservations about the death penalty were not
removed in the same manner that African-Americans were, we would have a basis for finding
disparate treatment to support a Batson violation. Without such evidence, however, it is impossible
to engage in meaningful review of the issue.

By way of example, the eighth African-American juror removed, Ms. Pruitt, was eliminated because,
as the prosecutor stated, “she looked like she was going to cry” and “when she was going into the


         1
             Batson v. Kentucky, 476 U.S. 79 (1986).

         2
         As the majority notes, Defendant failed to object at trial to the exclusion of jurors Hudson, Gibbs and Pirtle,
waiving any Batson claim as to these jurors.
jury box she got teary-eyed again and was shaking her head no.” During voir dire of this particular
juror–which was rather cursory–she indicated she did not have a problem sitting in judgment of
others, she could do it in this particular case, and she could sign a death warrant. There is no
evidence to support the prosecutor’s implication that this juror appeared emotionally distraught; the
prosecutor’s bare assertion of such behavior is not evidence. The trial court did not make any
findings of fact on the prosecutor’s stated reason other than to conclude, without analysis, that the
stated reason was not racially motivated. I would caution trial counsel and courts when dealing with
Batson objections to take care to develop the facts for the record, as it is otherwise impossible to
determine whether disparate treatment indicative of impermissible discrimination occurred.

Despite my misgivings about the prosecution’s motives for eliminating these eight African-American
jurors, and because of the inadequacy of the record and the paucity of trial court findings, I am
unable to find actionable error. Accordingly, I concur in the conclusion of the majority that
Huguely’s convictions should be affirmed.

As to the sentence of death, however, I respectfully dissent. I continue to adhere to my view that the
comparative proportionality review protocol currently embraced by the majority is inadequate to
shield defendants from the arbitrary and disproportionate imposition of the death penalty. See State
v. Reid, 164 S.W.3d 286, 323-325 (Tenn. 2005)(Birch, J., concurring and dissenting), and cases cited
therein. Accordingly, I respectfully dissent from that portion of the majority opinion affirming the
imposition of the death penalty in this case.



                                                       ___________________________________
                                                       ADOLPHO A. BIRCH, JR.




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