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Allen v. State

The state gave race-neutral reasons for striking six African American prospective jurors.

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Following a jury trial, Andrew O. Allen appeals his conviction for aggravated assault,1 arguing that one juror was improperly impaneled in that she was not summoned nor on the jury list, and that the court erred in denying his Batson motion that challenged the State’s striking of six African-American jurors. We hold that Allen has waived any objection regarding the unsummoned juror and that evidence supported the trial court’s finding that the State’s reasons for striking the challenged jurors were race-neutral. Accordingly, we affirm. Viewed in favor of the verdict, Davis v. State ,2 the evidence shows during a scuffle with a weaponless man at a cafe, Allen pulled a gun and shot the man in the stomach. Indicted for aggravated assault, Allen claimed self-defense. At the end of voir dire which was not transcribed, Allen challenged the State’s peremptory strikes as racially based, which challenge the court denied. See Batson v. Kentucky .3 After the jury found him guilty, Allen moved for a new trial, arguing that one juror who had not been summoned nor was on the jury list should not have been impaneled, that his trial counsel had rendered ineffective assistance in failing to object to this juror, and that the court had erred in denying his Batson motion. Following two evidentiary hearings, the court denied the motion for new trial.

1. Allen complains that a juror, who was not summoned but appeared in the belief she had been summoned, was improperly impaneled on the jury. Such a complaint must be made before a verdict is rendered and is therefore too late here. Regarding Allen’s claim that trial counsel acted ineffectively in failing to raise this objection timely, Allen’s failure to ask trial counsel about this matter at the new-trial hearing means that we must presume counsel was acting strategically, thereby vitiating any ineffective assistance claim.

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