Avery v. State

• Decision Date: 08 March 1985
• Docket Number: No. 69368,69368
• Citation: 174 Ga.App. 116,329 S.E.2d 276
• Parties: AVERY v. The STATE.
• Court: Georgia Court of Appeals

Page 276

329 S.E.2d 276

174 Ga.App. 116

AVERY v. The STATE.

No. 69368.

Court of Appeals of Georgia.

March 8, 1985.

Rehearing Denied March 22, 1985.

Certiorari Denied April 24, 1985.

John H. Ruffin, Jr., Augusta, for appellant.

Sam B. Sibley, Dist. Atty., for appellee.

POPE, Judge.

Lacey Avery, Jr. was convicted of burglary and sentenced to serve fifteen years. He now appeals enumerating three errors.

1. In his first two enumerations of error Avery contends he was denied due process of law under both the Federal and State Constitutions because the State was allowed to use its peremptory strikes to exclude blacks from the petit jury. This argument has been decided adversely to Avery in Jordan v. State, 235 Ga. 732(1), 222 S.E.2d 23 (1975). We are not persuaded that the holding of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), alters the holding in Jordan. In Jordan, the Supreme Court followed the holding of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The Supreme Court of Illinois in People v. Williams, 97 Ill.2d 252, 73 Ill.Dec. 360, 454 N.E.2d 220 (1983), was faced with a challenge identical to that presented here. Like Georgia, Illinois followed the rule in Swain. "We consider that the authority of Swain was not lessened because of the recognition of a sixth amendment fair-cross-section requirement in Taylor v. Louisiana, [supra]. The court in Taylor held that it is fundamental to the sixth amendment right to a jury trial that the selection of a petit jury be from a representative cross section of the community. The issue, as the court put it, was, whether the presence of a fair cross section of the community on venires, panels, or lists from which petit juries are drawn is essential to the fulfillment of the Sixth Amendment's guarantee of an impartial jury trial in criminal prosecutions. [Cit.]

"There was no retreat in the Taylor opinion from the view that it is an essential part of our system of trial by an impartial jury that both sides be allowed in particular cases to exercise peremptory challenges on any ground they select. It appears that the complaint addressed in Taylor is the systematic exclusion of a group from the jury system, not from any particular jury. This is in harmony with the suggestion in Swain that the systematic exclusion of blacks by peremptory challenges in case after case regardless of the particular circumstances involved would raise a constitutional issue. [Cit.] Moreover, the limited character of the Taylor holding is clear from the following statement, which appears at the conclusion of the opinion: It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition (citation); but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof. [Cit.]" People v. Williams, supra at 278-79, 73 Ill.Dec., supra at 372, 454 N.E.2d, supra at 232. We find the analysis in Williams persuasive. The enumerations are without merit.

2. Nor do we find merit in Avery's contention that the trial court erred in allowing the State to introduce into evidence a photograph during cross-examination of Avery. The photograph was used to impeach Avery's claim that he suffered no cuts at the time of the burglary. Without question, the State could have waited until after questioning Avery and introduced the photograph into evidence on rebuttal. See Walker v. Walker, 14 Ga. 242(5) (1853). However, the order of proof is within the discretion of the trial court and will not be disturbed absent abuse. Brown v. State, 140 Ga.App. 198(1), 230 S.E.2d 349 (1976). We find no abuse.

Judgment affirmed.

BANKE, C.J., concurs.

BENHAM, J., concurs specially.

BENHAM, Judge, concurring specially.

I concur in the majority opinion; however, I would approach the matter of peremptory strikes somewhat differently, and I concur in a separate opinion only to emphasize the need for preventive rather than corrective measures in this area.

The record shows that during voir dire the State's attorney used all ten of his peremptory strikes to remove blacks from the jury. The defendant, a black man, objected to such a use of the peremptory process as being violative of the Sixth and Fourteenth Amendments to the United States Constitution and the Constitution of the State of Georgia. In response to this objection, the trial court stated as follows: "I don't think it makes any difference what you [defense counsel] do on peremptory strikes or what he [state's attorney] does, I think you have a right to do it; that's what I rule ..."

The use of peremptory strikes, especially as it relates to minorities, has been particularly worrisome to the appellate courts of this state, as evidenced by the numerous cases where the issue has been raised on appeal: Watkins v. State, 199 Ga. 81, 94, 33 S.E.2d 325 (1945); Jordan v. State, 235 Ga. 732(1), 222 S.E.2d 23 (1975); Crawford v. State, 159 Ga.App. 278, 283 S.E.2d 300 (1981); Tiller v. State, 159 Ga.App. 557(2), 284 S.E.2d 63 (1981); Hatton v. Smith, 228 Ga. 378(2), 185 S.E.2d 388 (1971); High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981), overruled on other grounds, Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442 (1982); Taylor v. State, 243 Ga. 222(4), 253 S.E.2d 191 (1979); Hobbs v. State, 229 Ga. 556(6), 192 S.E.2d 903 (1972); Blackwell v. State, 248 Ga. 138, 281 S.E.2d 599 (1981); Jordan v. State, 247 Ga. 328(7), 276 S.E.2d 224 (1981).

Historically, minorities have turned to the courts for protection of their rights in many areas, and the courts have been sensitive to such pleas in the areas of education (Brown v. Bd. of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ); employment (Dept. of Human Resources v. Montgomery, 248 Ga. 465, 284 S.E.2d 263 (1981) ); voting (United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); Wall v. Bd. of Elections, Chatham County, 242 Ga. 566, 250 S.E.2d 408 (1978)); and public accommodations (United States v. Johnson, 390 U.S. 563, 88 S.Ct. 1231, 20 L.Ed.2d 132 (1968).

The leading case interpreting the proper use of peremptory challenges by the prosecution is Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In Swain, the U.S. Supreme Court held that a violation of equal protection would exist only when a particular group had been systematically excluded from jury service over a period of time. The majority opinion in the case in chief points out that Georgia has followed Swain and its progeny, and that many other states also require a showing of systematic exclusion, e.g., People v. Williams, 97 Ill.2d 252, 73 Ill.Dec. 360, 454 N.E.2d 220 (1983); People v. McCray, 57 N.Y.2d 542, 457 N.Y.S.2d 441, 443 N.E.2d 915 (1982).

The requirements of showing systematic and purposeful exclusion of a particular group is solidly anchored in the case law of Georgia. However, some other states have interpreted Swain more liberally in light of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), which applied the Sixth Amendment to the states and, in doing so, they have not always required a showing of systematic exclusion. In Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979), cert. denied 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); and People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890 (1978), the courts found an abuse of the peremptory process without a showing of systematic exclusion.

At first blush, without considering Soares and Wheeler, it would appear that the use of peremptory strikes is a fundamental right and therefore inviolate. However, the court has already placed some limitations on the use of the process in Stilson v. United States, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154 (1919);...