Adams v. State

• Decision Date: 18 March 1988
• Docket Number: No. 75609,75609
• Parties: ADAMS v. The STATE.
• Court: Georgia Court of Appeals

Page 871

367 S.E.2d 871

186 Ga.App. 599

ADAMS v. The STATE.

No. 75609.

Court of Appeals of Georgia.

March 18, 1988.

Rehearing Denied March 30, 1988.

Certiorari Denied April 28, 1988.

Alfred D. Fears, William P. Bartles, Alfred D. Fears, Jr., Jackson, for appellant.

E. Byron Smith, Dist. Atty., Tommy K. Floyd, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was indicted for kidnapping, child molestation, and aggravated child molestation. The jury returned a guilty verdict only as to the crime of aggravated child molestation. Appellant appeals from the judgment of conviction and sentence that was entered by the trial court on the jury's guilty verdict.

1. The general grounds are raised in several enumerations of error.

There is no requirement that the testimony of the victim of child molestation be corroborated. See Padgett v. State, 175 Ga.App. 818, 334 S.E.2d 883 (1985). Nevertheless, the testimony of the victim in this case was corroborated in several material respects. From all of the evidence, the jury was authorized to find that appellant had committed an immoral or indecent act to the person of the child. See generally Chapman v. State, 170 Ga.App. 779(1), 318 S.E.2d 213 (1984). The evidence would also clearly authorize a finding that appellant had done so with the intent to arouse his sexual desires. See generally Bentley v. State, 179 Ga.App. 287(1), 346 S.E.2d 98 (1986). The evidence likewise authorized a finding that the commission of the act of molestation was accomplished by the use of such force as to have resulted in physical injury to the child. See generally Keeler v. State, 181 Ga.App. 208(1), 351 S.E.2d 731 (1986). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence produced at trial, proof of appellant's guilt of aggravated child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This is true notwithstanding appellant's acquittal on the two other crimes which allegedly arose out of the incident. See generally Nelson v. State, 181 Ga.App. 455, 456(2), 352 S.E.2d 636 (1987).

2. After voir dire but before the jury was sworn, appellant, relying upon Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), moved for disqualification of the jury because of the prosecutor's use of peremptory challenges to remove blacks from the jury. "This was timely. [Cit.]" Wright v. State, 186 Ga.App. 104(1), 366 S.E.2d 420 (1988). See also State v. Sparks, 257 Ga. 97, 98, 355 S.E.2d 658 (1987). The trial court conducted a hearing. During that hearing, appellant attempted to make a prima facie case pursuant to Batson. The prosecuting attorney urged that appellant had failed to meet his burden under Batson. However, out of an abundance of caution, the prosecuting attorney did offer his racially neutral motivation for the exercise of his peremptory strikes. That explanation was that only those black prospective jurors who knew appellant or knew of him had been removed. After further extensive colloquy with counsel concerning the Batson motion, the trial court held as follows: "The motion will be denied based on the court's observation of the jury, the makeup of the jury, [and] the responses on voir dire that were made pursuant to questions asked by both sides." Appellant enumerates as error the denial of his Batson motion.

We note at the outset that Powell v. State, 182 Ga.App. 123(2), 355 S.E.2d 72 (1987) is not authority for this court to order the remand of this case to the trial court for a hearing on the issue of whether appellant met his initial burden of making a prima facie case in support of his Batson motion. In Mincey v. State, 257 Ga. 500, 360 S.E.2d 578 (1987), a case so factually similar to this case that it fits it like a glove, our Supreme Court has construed the applicability of Powell in cases wherein a Batson motion is made. " 'All relevant circumstances' in the [Mincey ] case, which Batson holds must be considered, include the facts that the prosecutor used seven of his 10 strikes to remove blacks from the venire; that the state accepted five black jurors prior to exhausting its strikes; that the state utilized five strikes on blacks, three on whites, and the race of two panel members was not noted on the record; and that there were at least three blacks on the jury. In Powell v. State, [supra], cert. denied, the Court of Appeals held that the fact that three blacks were on the jury of 12, was not determinative, and that '(t)he question is whether the state exercised any of its strikes for a racially discriminatory reason, for if it did, the rule of Batson was violated.' That court held that a number of specified circumstances were sufficient to establish a prima facie case of purposeful discrimination in selection of the petit jury, and the case was remanded to the trial court, as the factfinder, for an evidentiary hearing consistent with Batson. We do not read Powell to mean that the factfinder cannot consider the fact of the number of blacks on the jury, along with all other 'relevant circumstances.' Rather, we understand it to mean, when read along with that portion of Batson quoted hereinabove, that that fact alone does not automatically outweigh other relevant circumstances which would raise an inference of unlawful discrimination. Our interpretation is bolstered by the recent holding in United States v. Dennis, 804 F.2d 1208, 1211 (11th Cir.1986), cert. denied, involving similar factual circumstances, that '(i)t is ... obvious that the government did not attempt to exclude all blacks, or as many blacks as it could, from the jury. Moreover, the unchallenged presence of two blacks on the jury undercuts any inference of impermissible discrimination that might be argued to arise from the fact that the prosecutor used three of the four peremptory challenges he exercised to strike blacks.... We thus conclude that all of the relevant facts and circumstances do not raise an inference of purposeful discrimination on the basis of race, and that appellants were not entitled to any inquiry into the prosecutor's reasons for exercising his peremptory challenges as he did.' We thus likewise conclude that the trial court did not err in holding that no prima facie case for unlawful discrimination was made here." (Emphasis in original.) Mincey v. State, supra, 257 Ga. at 503-504, 360 S.E.2d 578.

In this case, as in Mincey, there appears to be some confusion as to how many strikes the State may have used to remove blacks. However, in Mincey, there was even a dispute as to how many blacks actually served on the jury. In the case at bar, it is clear that 7 out of the 12 jurors were black. However, it would certainly be a mischaracterization of the trial court's ruling in this case to imply that the number of black jurors was the only factor which was considered by the trial court in its ruling that appellant had failed to show a prima facie case. As noted previously, it was only after extensive colloquy with counsel concerning the Batson motion in this case, that the trial court held: "The motion will be denied based on the Court's observation of the Jury, the makeup of the jury, [and] the responses on voir dire that were made pursuant to questions asked by both sides." Thus, as in Mincey, the trial court in this case has made a finding that, based upon the relevant circumstances--which included but were not limited to the number of blacks who actually served as jurors--there was no prima facie case for unlawful racial discrimination and that finding is adequately supported by the record.

Therefore, unlike Powell, this is not a case wherein the record shows that the defendant did meet his initial burden of proving a prima facie case and wherein the State then urged that the number of blacks who actually served on the jury is, standing alone, a factor sufficient automatically to outweigh all of the other circumstances which had raised the initial inference of unlawful discrimination. Powell remanded for the trial court to conduct an evidentiary hearing as to the prosecutor's reasons for exercising his peremptory challenges under such circumstances as gave rise to an inference of discrimination, because that was an issue which the trial court in that case had never addressed. Powell did not remand for the trial court to conduct another hearing as to whether the defendant had met his initial burden of showing a prima facie case of discrimination, because that was an issue upon which the trial court in Powell had already ruled.

No decision of the Supreme Court supports the proposition that, the trial court having already conducted a hearing on appellant's Batson motion, this case should be remanded for another hearing. Aldridge v. State, 258 Ga. 75 (4), 365 S.E.2d 111 (1988) makes it clear "that in the future the defendant in Batson type cases has the burden to complete the record with information revealing the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury." (Emphasis supplied.) Thus, assuming that the instant case were within the ambit of Aldridge, the absence in the present record of the information specified in Aldridge would be a basis for holding that appellant has not met his burden of showing error on the record on appeal, not a basis for remanding for another hearing as to an issue which has already been addressed. In Williams v. State, 258 Ga. 80, 81(3), fn. 2, 365 S.E.2d 408 (1988), the Supreme Court did "commend and endorse the procedure followed by the trial court, following its ruling that the defendant had not made a prima facie case of discrimination...." (Emphasis supplied.) However, commending and endorsing a procedure is not the equivalent of mandating that procedure and, of course, what is...