Barton v. State

• Decision Date: 18 September 1987
• Docket Number: No. 74753,74753
• Citation: 184 Ga.App. 258,361 S.E.2d 250
• Parties: BARTON v. The STATE.
• Court: Georgia Court of Appeals

Page 250

361 S.E.2d 250

184 Ga.App. 258

BARTON v. The STATE.

No. 74753.

Court of Appeals of Georgia.

Sept. 18, 1987.

Fred R. Kopp, Alma, for appellant.

Harry D. Dixon, Jr., Dist. Atty., Richard E. Currie, Asst. Dist. Atty., for appellee.

BENHAM, Judge.

Appellant was convicted of escape. On appeal, he claims that he was denied the right to a fair trial by a jury of his peers through the district attorney's use of peremptory strikes to remove black people from the jury. He also argues that his right to a fair trial was compromised by his being tried in prison clothing.

1. Appellant contends that he should not have been tried before a jury in prison garb because his appearance unduly prejudiced the jury against him. Since appellant was being tried for escape, there was no harm in trying him in his prison uniform. Ingram v. State, 237 Ga. 613(1), 229 S.E.2d 416 (1976); Krist v. State, 133 Ga.App. 197(1), 210 S.E.2d 381 (1974).

2. We do, however, find merit in appellant's remaining enumeration of error. The record reflects that the venire in this case consisted of 48 persons, five of whom were black. Of the five, four were put upon appellant. In the course of voir dire, the State's attorney used three of his ten peremptory challenges to eliminate three of the four black veniremen, but kept the fourth, so that there were eleven white jurors and one black juror. The State did not strike any white veniremen. When the jury had been selected, appellant moved for a mistrial, contending that the State had used its peremptory challenges to systematically exclude black jurors. In accordance with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the trial court held a hearing on the motion to determine whether appellant made a prima facie case of purposeful discrimination, and ruled that appellant did not make out a prima facie case. We disagree with that ruling.

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 ... Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors ... [T]he prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on ... his intuitive judgment--that they would be partial to the defendant because of their shared race ... Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive ... The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination." Batson, 476 U.S. at ---- - ----, 106 S.Ct. at 1723-24, 90 L.Ed.2d at 87-89. In the case before us, the parties agreed that appellant was black and that the prosecuting attorney used his peremptory strikes to eliminate blacks from the jury. However, the trial court decided that since the prosecuting attorney did not strike all of the black veniremen, appellant did not make the requisite prima facie showing. The trial court's resolution of the problem raises the question, "Does the striking of all but one black...