State v. McCollum

• Citation: 261 Ga. 473,405 S.E.2d 688
• Decision Date: 12 July 1991
• Docket Number: No. S91A0310,S91A0310
• Parties: The STATE v. McCOLLUM, et al.
• Court: Supreme Court of Georgia

Page 688

405 S.E.2d 688

261 Ga. 473

The STATE v. McCOLLUM, et al.

No. S91A0310.

Supreme Court of Georgia.

July 12, 1991.

Reconsideration Denied July 24, 1991.

Michael J. Bowers, Atty. Gen., Harrison W. Kohler, Deputy Atty. Gen., State Law Dept., Atlanta, for the State.

Robert H. Revell, Jr., Jesse W. Walters, Perry, Walters & Lippitt, Albany, for McCollum, et al.

Robert E. Wilson, Dist. Atty., Stone Mountain Judicial Circuit, Decatur, Beauchamp & Associates, Kermit S. Dorough, Jr., Albany, The Garland Firm, Donald F. Samuel, Martin Brothers, John R. Martin, Atlanta, for amici curiae.

SMITH, Presiding Justice.

McCollum and others were indicted on several counts as a result of an altercation. The state filed a motion asking that the trial court prohibit the defendants from using peremptory strikes in a racially discriminatory matter. The motion was denied and the state appeals.

1. Since the order of the trial court, the United States Supreme Court has decided the case of Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660. In that case, the Court held, generally, that the exclusion of any prospective juror by virtue of race would constitute an impermissible injury to that juror. 111 S.Ct. at 2082.

2. Edmonson, of course, was a civil action. While it may be that the United States Supreme Court may, in another case, prohibit a criminal defendant from exercising peremptory challenges to exclude jurors on the basis of race, it has not yet done so. Bearing in mind the long history of jury trials as an essential element of the protection of human rights, this court declines to diminish the free exercise of peremptory strikes by a criminal defendant.

Judgment affirmed.

All the Justices concur, except HUNT, BENHAM and FLETCHER, JJ., who dissent.

HUNT, Justice, dissenting.

I respectfully dissent because the inescapable conclusion from Edmonson v. Leesville Concrete Co., 500 U.S. 614, 110 S.Ct. 2077, 114 L.Ed.2d 660 (1991), is that no one, not even a criminal defendant, may exercise peremptory strikes so as to exclude jurors in a racially discriminatory manner. Edmonson makes it abundantly clear that the exercise of peremptory strikes by any party in any case, pursuant to a state or federal statute, in a state or federal courtroom, is "state" action. And, under Edmonson, when that action excludes juror on the basis of race it may be challenged by the court, by the opposing party, or even by the juror and remedied.

Edmonson, however, is but the latest pronouncement of the federal courts leading to this result. Surely this result was forecast by Batson v. Kentucky, ¹ itself. While the Batson majority sidestepped the issue: "We express no views on whether the Constitution imposes any limit on the exercise of peremptory challenges by defense counsel[,]" id., 106 S.Ct. at 1719, n. 12, the dissenting opinion of Chief Justice Burger reasoned:

[T]he clear and inescapable import of this novel holding will inevitably be to limit the use of this valuable tool to both prosecutors and defense attorneys alike. Once the Court has held that prosecutors are limited in their use of peremptory challenges, could we rationally hold that defendants are not? (Emphasis in original). 106 S.Ct. at 1738. (Burger, C.J., dissenting).

Moreover, as the Fifth Circuit Court of Appeals confirmed in United States v. Leslie, 783 F.2d 541, 565 (5th Cir.1986):

[E]very jurisdiction which has spoken to the matter, and prohibited prosecution case-specific peremptory challenges on the basis of cognizable group affiliation, has held that the defense must likewise be so prohibited. ²

The rule of Batson has proceeded from enforcing the equal protection rights of black defendants to those of white defendants and to those of jurors whose rights may be enforced by the state as well as the defendant. It has expanded from criminal cases to civil cases and from race to gender. One may legitimately question whether peremptory challenges will survive the enveloping application of the rule. Consider the observation of Judge Charles E. Moylan, Jr., writing for the Court of Special Appeals of Maryland in Chew v. State, 71 Md.App. 681, 527 A.2d 332 (1987):

To hold that, in the jury selection process, the equal protection clause is available only to black defendants deprived of black jurors is philosophically indefensible. Once the protection is moved beyond that narrow base, however, there is no logically defensible way to contain it. Between the absolute abolition of the peremptory challenge, on the one hand, and the absolute refusal to look behind the unfettered use of the peremptory challenge, on the other hand, there may be no tenable middle ground.

Id. at 350, 527 A.2d at 350.

The majority acknowledges the inevitable but prefers to await further instructions from Washington. In the meantime it reveres the defendants' entitlement to racially-motivated peremptory strikes as though it were of constitutional significance. But peremptory strikes, unlike the prohibition against racial discrimination, enjoy no constitutional foundation. Fundamental to Edmonson is the notion that racially-motivated strikes are just another form of racial discrimination which deserve no protection in the administration of justice in our courts. If this is true, it defies all logic to say that such strikes are prohibited only when exercised by the state. ³ I would reverse the denial of the state's motion.

BENHAM, Justice, dissenting.

I must respectfully dissent and must write separately to point out how the majority opinion, by refusing to hold that race is an impermissible consideration in determining a person's fitness for jury service, does unmistakably serious harm to the integrity of the jury selection process.

1. The majority opinion fails to take into consideration an almost unbroken chain of United States Supreme Court opinions leading to the abolition of race as a consideration for jury service: Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). It is evident from these opinions that in the area of jury service, the trend has been one of inclusiveness rather than exclusiveness.

In condemning racial discrimination in the jury selection process, the United States Supreme Court has highlighted not only the harm to the parties, but also the harm done to the jury selection process itself by the exclusion of prospective jurors on the basis of race. Justice Kennedy, writing for the majority in Powers, supra 111 S.Ct. at 1368, said that Batson "was designed to serve multiple ends." One of those ends must be to allow ordinary citizens to participate in the administration of justice, which Justice Kennedy described as "one of the principal justifications for retaining the jury system." Id. He went on to state the holding in that case:

the Equal Protection Clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race, a practice that forecloses a significant opportunity to participate in civic life. [Id. 111 S.Ct. at 1370]

The most recent case applying the principles which are apparent in this trend toward inclusiveness is Edmonson v. Leesville Concrete Co., supra, which prohibited race-conscious jury strikes in civil cases. The focus of the court's reasoning in Edmonson is on the harm done to jurors and to the justice system, and the court found that the harm was no less because the discrimination occurred in a civil case. Applying the same reasoning, it is obvious that the harm which racial discrimination in selecting a jury does to the integrity of the jury selection process is just as egregious whether it is done by the state or the defendant in a criminal trial or by the plaintiff or defendant in a civil trial.

2. While I would join Justice Fletcher's dissent to the extent it says Edmonson requires racial neutrality in jury selection under the United States Constitution, I would go one step further and also address the issue of the applicability of our state constitution to racially motivated peremptory strikes.

An important question which was raised in the enumerations of error, and briefed and argued by the parties, but not addressed by the majority opinion, and which needs to be addressed here, is whether Art. I, Sec. I, Par. XI, of the Georgia Constitution, which guarantees every accused a trial by an impartial jury, also protects all citizens from racial discrimination in jury service even to the extent of curtailing a defendant's use of racially-motivated peremptory strikes.

The majority's view fails to take into consideration the dynamic aspect of constitutional jurisprudence. Justice John Marshall put the matter of dynamic versus static jurisprudence in proper perspective in McCulloch v. Maryland, 17 U.S. 316, 407-415, 4 L.Ed. 579 (1819):

"We must never forget that it is a constitution we are expounding ... a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs".

Such a crisis was recognized in Batson v. Kentucky, supra, when the United States Supreme Court, considering the use of peremptory strikes by the state, employed the Equal Protection Clause of the United States Constitution to forbid the use of racially-motivated strikes by the state, and put in place a legal mechanism for preventing future abuse.

Recognizing the literal correctness of the majority's statement that the United States Supreme Court has not yet held that defendants in criminal ca...