Berry v. State

• Decision Date: 12 October 1993
• Docket Number: No. S93A0712,S93A0712
• Citation: 263 Ga. 493,435 S.E.2d 433
• Parties: , 263 Ga. 909 BERRY v. The STATE.
• Court: Georgia Supreme Court

Page 433

435 S.E.2d 433

263 Ga. 493, 263 Ga. 909

BERRY v. The STATE.

No. S93A0712.

Supreme Court of Georgia.

Oct. 12, 1993.

Reconsideration Denied Nov. 4, 1993.

Steven W. Reighard, Atlanta, for Berry.

Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Department of Law, C.A. Benjamin Woolf, Asst. Atty. Gen., Atlanta, for the State.

Leonora Grant, Asst. Dist. Atty., Atlanta.

Carl P. Greenberg, Asst. Dist. Atty., Atlanta, for other interested parties.

CLARKE, Chief Justice.

This marks Appellant's second appearance before this Court on this case. See Berry v. State, 262 Ga. 614, 422 S.E.2d 861 (1992) for the facts. ¹

On his first appeal, Appellant claimed that the trial court erred in denying his Batson objection. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prosecution used nine of the ten objections to strike black jurors. Originally the trial court found that the appellant did not make a prima facie showing of discrimination since a higher percentage of African-Americans actually served on the jury than were available in the jury venire. We remanded the case to the trial court for a hearing on the issue of whether the prosecution's strikes were racially neutral using the "additional scrutiny" standard required by Weems v. State, 262 Ga. 101, 416 S.E.2d 84 (1992); Berry, 262 Ga. at 615, 422 S.E.2d 861.

At the hearing on remand, the prosecution explained its strategy for striking potential jurors. The prosecution excused women over the age of fifty because it felt that the defendant was young and would invoke pity from the older women. Older women, the state argued, would also be less likely to believe the "jailbird witnesses" for the state. Finally, the prosecution believed that the defense attorney's style and demeanor were more appealing to older women. In keeping with this strategy, the prosecution struck seven women over the age of fifty. The state did not, however, excuse two women, one black and one white, over the age of seventy. One woman had served on a grand jury and appeared to be a favorable juror for the state. The other juror, white and age seventy-one, was, in the words of the prosecution, dressed in "high fashion," a "oner." She was independent and a working woman. The assistant district attorney conducting the trial felt she "connected" with her and that this juror was "different" despite her age.

Two other jurors the state excused were African-Americans. The prosecution struck one woman, forty-one-year-old Clarice Byrd, because she seemed hostile. The prosecutor felt she "had to pull hens' teeth to get her to talk...." The next venire member excused by the state was a black male. This strike was not contested by the appellant. The state excused this potential juror because the next member on the venire was a surgeon. Since the time of the death of the victim was an issue in the trial, the prosecution wanted a doctor on the jury. The trial court found that the state gave racially neutral reasons for each peremptory strike, and denied the appellant's motion for a new trial. In evaluating the trial court's findings, this Court must keep in mind the unique perspective the trial court judge has in evaluating the rationale given by the state. A cold transcript cannot convey all of the subtle nuances of the process of jury selection.

This court gives the trial court's findings great deference. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. This Court, however, will not subvert the policy of Batson by acting as a rubber stamp, accepting all nonracial explanations of the court without exception. The prosecution must show that its peremptory strikes of jurors are neutral, related to the case to be tried, and clear and reasonably specific. Gamble v. State, 257 Ga. 325, 327, 357 S.E.2d 792 (1987).

The state made clear that most of its peremptory challenges were based on a strategy of excusing the older venire members. Only Ms. Byrd was excused because the prosecutor did not like her. "A court ... may be less troubled by one relatively weak explanation for striking a black juror when all the remaining explanations are persuasive...." Gamble, 257 Ga. at 327, 357 S.E.2d at 794. Unfortunately, this Court cannot determine from the transcript if Ms. Byrd's answers were hostile or short. Given the strength of the prosecution's other answers and the trial judge's findings, however, we cannot now say that the prosecutor's explanation was a mere pretext.

Because the prosecutor's reasons for striking the prospective jurors were racially neutral, related to the case to be tried, and presented clear and specific reasons for exercising the challenges, the trial court did not err in denying the Batson challenge. Walker v. State, 199 Ga.App. 638, 405 S.E.2d 736 (1991).

Judgment affirmed.

All the Justices concur.

BENHAM, Justice, concurring.

In a steady and unmistakable progression of cases since our decision in Gamble v. State, 257 Ga. 325, 357 S.E.2d 792 (1987), the appellate courts of Georgia have sought to carry out the meaning of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by requiring heightened scrutiny of peremptory strikes in certain suspect circumstances. This court and the Court of Appeals have held, for instance, that reliance on racial similarity between the make-up of the jury pool and the final make-up of the trial jury will not insulate the exercise of peremptory strikes from challenge (Weems v. State, 262 Ga. 101(2), 416 S.E.2d 84 (1992)); that the further the jury make-up deviates from the statistically expected result, the greater the scrutiny to be given it (Ford v. State, 262 Ga. 558(4), 423 S.E.2d 245 (1992)); that racially motivated reasons combined with proper reasons are unacceptable (Strozier v. Clark, 206 Ga.App. 85(5), 424 S.E.2d 368 (1992)); and that explanations which reflect stereotypical attitudes will be given additional scrutiny (Tharpe v. State, 262 Ga. 110(6), 416 S.E.2d 78 (1992)).

We are now faced with the issue of how to treat peremptory strikes which are exercised purely on a subjective basis. Such strikes are inherently suspect because they provide an opportunity for the infusion of impermissible racial considerations which may be difficult to recognize on appeal. We must, therefore, develop a procedure for effective review of subjective reasons. I find somewhat troubling the language in the main opinion which seems to imply that where a majority of the explanations in a Batson...