Barnett v. State

• Citation: 191 Ga.App. 552,382 S.E.2d 620
• Decision Date: 05 May 1989
• Docket Number: No. A89A0480,A89A0480
• Parties: BARNETT v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 620

382 S.E.2d 620

191 Ga.App. 552

BARNETT v. The STATE.

No. A89A0480.

Court of Appeals of Georgia.

May 5, 1989.

Rehearing Denied May 15, 1989.

Certiorari Denied June 22, 1989.

James C. Wyatt, Rome, for appellant.

Stephen F. Lanier, Dist. Atty., Harold Chambers, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Barnett appeals his conviction and sentence for aggravated assault with the intent to rape, OCGA § 16-5-21(a)(1).

1. Appellant contends that the trial court committed reversible error when it allowed the State to strike prospective juror Burdette in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He maintains that the State's explanation that it struck Burdette because members of her family had criminal records was disingenuous, that the family did not have a criminal history, and that the State's real reason was racially motivated in that it did not want a second black member of the jury.

Following voir dire of the forty-two veniremen, three of whom were black, defendant, who is black, orally challenged the array on the basis that only 7.14 percent of the venire was black while the black population of the county was 11.4 percent resulting in a "comparative disparity of over 35 percent." The court rejected the challenge.

A jury of twelve was selected. The trial court inquired if there were any exceptions to the twelve. The State had none; the defense indicated it did. The court for the purpose of the record then outlined the procedure it had followed in selecting the jury: The court had forty-two jurors qualified and then put the jurors on the defendant. The forty-two were divided into three panels of fourteen. Each panel was called into the box and a silent method of juror selection was employed so that the veniremen did not know whether or not they had been selected or excused or by whom. Panel one contained black venireman Gibson. Panel two contained black veniremen Woodruff and Burdette. Defendant's challenge was only as to the racial composition of the forty-two in relation to the community and not as to the entire jury box.

The court noted that Gibson and Woodruff were both excused by the State and that Burdette was accepted. Defendant objected that of the three black potential jurors, only one was selected, that this raised a prima facie case for a Batson violation under Barton v. State, 184 Ga.App. 258, 361 S.E.2d 250 (1987) and that the State needed to come forth with explanations for striking the two black veniremen.

The court stated that without ruling that a prima facie showing had been made that it was going to ask the State to explain the strikes.

The State explained that Gibson was struck because she had a record of a "prior criminal instance" and because when questioned about her marital status, she indicated she was separated. The State said it struck Woodruff because he gave no employment history and because of his nearness in age to the defendant. The court inquired if there had been others out of the forty-two who were near in age to defendant and who had been accepted. The State said it did not remember or did not know but that it had accepted a couple of women who appeared to be fairly close in age to defendant but who had been struck by the defendant.

The court asked if Woodruff had been struck solely because of employment. The State reiterated that he had been struck because of unemployment and age. The court inquired if the State had accepted any unemployed veniremen and was told no. The defense interjected that its notes indicated that Woodruff was employed and argued that age was not sufficient justification for striking Woodruff. The clerk was directed to examine the take-down on the question of Woodruff's employment. The record reflected that Woodruff was employed.

The court informed the State that its basis for excusing Woodruff was thus insufficient and that for jury selection, the parties would return to the second panel which contained Woodruff and start from there. The State would not strike Woodruff, he would be on the defendant and selection would go on through the panel. The court indicated that although Burdette had been accepted by the State, it could rethink its thoughts on her but since she was black the State would need a reason if it sought to excuse her.

Selection proceeded with defendant accepting Woodruff and the State striking Burdette. Defendant again objected that inasmuch as only one of three blacks was selected, there was prima facie discrimination under Barton. The State explained that Burdette was struck because records showed that members of her family had numerous criminal offenses. See statement of facts in Sparks v. State, 185 Ga.App. 225, 226, 363 S.E.2d 631 (1987). The court accepted the explanation, an alternate was selected, and the jury with one black member was sworn.

Defendant's argument is that the State's claim that Burdette's family had a criminal history was false. Defendant did not request that the trial court require the State to produce evidence for its claim about Burdette's family nor did defendant seek additional time or means to attempt to refute it. Defendant did not, after trial, produce any evidence to support his allegation that Burdette's family did not have a criminal history. We cannot say that the court's acceptance of the State's explanation was clearly erroneous. See Evans v. State, 183 Ga.App. 436, 440(3), 359 S.E.2d 174 (1987).

Even if we assume appellant is correct as to criminal history, his burden is not fulfilled.

"To establish a prima facie case of purposeful discrimination in jury selection under Batson, a defendant must show 'that he is a member of a cognizable racial group, (cit.) ... that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race, ... that these facts and any other relevant circumstances raise an inference that the prosecutor used (the) practice (of peremptory strikes) to exclude the veniremen from the petit jury on account of their race....' " Barton, supra, 184 Ga.App. at 259(2), 361 S.E.2d 250. Statistics, as "other relevant circumstances," may raise an inference of racial motive or intent but may also be considered on the larger question of the existence of a prima facie case of discrimination. Aldridge v. State, 258 Ga. 75, 79(4), 365 S.E.2d 111 (1988).

Black persons composed 7.14 percent of the forty-two from whom the jury was selected and 8.33 percent of the jury of twelve. There was a net increase of more than a percentage point in the black composition of the jury following peremptory strikes. Even if the State's use of its strike against Burdette, considered in isolation and with the assumption of the truthfulness of appellant's claims, could raise the inference of racial intent, the resulting composition of the jury does not lead to a prima facie case of discrimination. Id. See also Williams v. State, 258 Ga. 281, 285(6), 368 S.E.2d 742 (1988).

2. Appellant's plea in bar and motion to suppress identification by the victim at the one-on-one show-up were based on suggestiveness because he was handcuffed and surrounded by at least two police officers. Appellant gives as authority Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and other cases dealing with Federal Constitutional mandates.

The evidence is construed so as to uphold the verdict. Thomas v. State, 175 Ga.App. 873, 874(1), 334 S.E.2d 903 (1985). Barnett entered Lillian's Bakery one morning and asked the sole present female employee a question and then left. Around 8:30 a.m. the next day, Barnett returned. The same employee was again alone. The store was lit by two long flourescent lights and the store's front and side were glass. The employee's...