Bess v. State, 76234

• Decision Date: 04 May 1988
• Docket Number: No. 76234,76234
• Citation: 369 S.E.2d 784,187 Ga.App. 185
• Parties: BESS v. The STATE.
• Court: Georgia Court of Appeals

Page 784

369 S.E.2d 784

187 Ga.App. 185

BESS v. The STATE.

No. 76234.

Court of Appeals of Georgia.

May 4, 1988.

Rehearing Denied May 18, 1988.

Certiorari Denied July 1, 1988.

Michael S. Bennett, C. Richard Williams, Jr., Valdosta, for appellant.

H. Lamar Cole, Dist. Atty., Robert T. Gilchrist, David Miller, Stephen J. Pearsall, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Appellant was tried before a jury and found guilty of two counts of aggravated child molestation, one count of statutory rape, and one count of child molestation. Appellant appeals from the judgments of conviction and sentences entered on the jury's verdicts.

1. "Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), '[i]f the defendant can establish a prima facie case of racial discrimination in the prosecutor's exercise of his peremptory challenges, the prosecutor must explain his exercise of peremptory challenges, and demonstrate that racially neutral criteria prompted the exercise of his peremptory challenges.' [Cit.]" Hillman v. State, 184 Ga.App. 712(1) 362 S.E.2d 417 (1987). In response to appellant's Batson motion, the trial court ruled that a prima facie case of racial discrimination had been made and it then asked that the prosecuting attorney give an explanation for her exercise of peremptory strikes to remove eight of nine potential jurors who were black. After hearing the prosecuting attorney's explanations for striking the eight black potential jurors, the trial court found no Batson violation, holding that the explanations which had been offered were of sufficient racial neutrality so as to rebut appellant's prima facie case of racial discrimination. Appellant enumerates the trial court's ruling in this regard as error.

"In order to rebut a prima facie case of racial discrimination in the exercise of peremptories, the prosecutor must explain each peremptory challenge of a black prospective juror. The explanation 'need not rise to the level justifying exercise of a challenge for cause,' but it must be 'neutral,' 'related to the case to be tried,' and a ' "clear and reasonably specific," explanation of his "legitimate reasons" for exercising the challenges.' [Cit.] The explanation offered for striking each black juror must be evaluated in light of the explanations offered for the prosecutor's other peremptory strikes, and, as well, in light of the strength of the prima facie case. The persuasiveness of a proffered explanation may be magnified or diminished by the persuasiveness of companion explanations, and by the strength of the prima facie case." Gamble v. State, 257 Ga. 325, 327(5), 357 S.E.2d 792 (1987). Appellant's prima facie case was not a weak one. As noted, of the forty-two prospective jurors nine were black and, of those nine, all but one was eliminated by peremptory strikes. Accordingly, our review of the trial court's acceptance of the prosecuting attorney's reasons for using her peremptory strikes to eliminate eight black prospective jurors must be from the perspective of a relatively strong prima facie case of racial discrimination in the employment of those strikes.

On appeal, appellant concedes that it is only as to seven of the eight black prospective jurors who were eliminated that he questions the trial court's finding of a racially neutral explanation. "Although the prosecutor may not strike from assumptions based solely upon race, he 'may strike from mistake, or from ignorance, or from idiosyncracy.' [Cit.]" Killens v. State, 184 Ga.App. 717, 719(2), 362 S.E.2d 425 (1987). That the prosecuting attorney in this case used peremptory strikes to eliminate two of the seven black veniremen in question because they stated that they knew appellant is a racially neutral justification and the trial court was authorized so to find. See McCormick v. State, 184 Ga.App. 687, 688, 362 S.E.2d 472 (1987). Likewise, the trial court's acceptance as a sufficient explanation that another black venireman had been stricken from the jury because there was reason to believe that he might have been the subject of a criminal investigation was not error. See McCormick v. State, supra at 689, 362 S.E.2d 472. Three of the black female veniremen were stricken from the jury on the basis that, in the opinion of the prosecuting attorney, they would be "good" jurors to serve in certain other criminal cases which might possibly be reached during the period of their jury duty. Specifically, the prosecuting attorney expressed a belief that, because of their apparent conservative nature, two of the women would be more "appropriate" jurors, from the State's point of view, in a drug case wherein the defendant was a black female, whereas it was believed that the third, who lived in a high crime area, would be a better juror in upcoming cases which dealt with drugs and stolen property. In addition, the prosecuting attorney felt that the third female, as the result of her age, might be exceptionally offended by the nature of the testimony in this case. For purposes of rebutting a Batson prima facie case, those reasons are all sufficiently racially neutral and the trial court was authorized to make such finding. See generally Hillman v. State, supra. "The trial court's findings are, of course, entitled to 'great deference,' [cit.], and will be affirmed unless clearly erroneous." Gamble v. State, supra 257 Ga. at 327, 357 S.E.2d 792. Under this standard, we find that, as to these six prospective jurors in question, the prosecuting attorney's reasons were racially neutral and we affirm the trial court's findings that, as to them, appellant's prima facie case of racial discrimination was rebutted.

It is the explanation given as to the seventh black prospective juror which presented the trial court the most difficulty and which, on appeal, has likewise given us the most concern. This prospective juror was a black female and the reason given for the use of a peremptory strike to remove her from appellant's jury was that she was over forty and had no children. The prosecuting attorney was of the opinion that, from the State's point of view, a childless female who was past her prime child-bearing years would not necessarily be an appropriate juror to serve in a case, such as this, wherein the alleged victim was a child. Our review of the record indicates that this ostensibly racially neutral explanation is weak, not on the merits of the explanation itself but on the existence of a factual premise to support the applicability of that explanation to the prospective juror. There is no affirmative support in the record for the conclusion that this prospective juror was childless. The prosecuting attorney apparently based her assumption that the prospective juror had no children merely on the fact that the juror was presently single. However, it would not necessarily follow from the fact that the prospective juror was presently single that she was also presently childless. Moreover, there is some doubt whether the marital status of the prospective juror as a single woman was itself a valid assumption on the part of the prosecuting attorney. However, the law provides that a prosecuting attorney's explanation, even if it is based upon mistake or ignorance, may be sufficient to rebut a prima facie Batson showing (see Killens v. State, supra), so long as it is not " ' "whimsical or fanciful" ' " but is " 'neutral,' 'related to the case to be tried,' and a ' "clear and reasonably specific," explanation of [the] "legitimate reasons" for exercising the challenges.' [Cit.]" Gamble v. State, supra at 327(5), 357 S.E.2d 792. In this case, there is no contention that anything in the record would show that the prospective juror was not childless. Accordingly, it cannot be said that the explanation or, even if based upon mistake or ignorance, was whimsical or fanciful. Compare Gamble v. State, supra. Moreover, in response to an inquiry from the trial court, the prosecuting attorney stated that a childless white female of similar age would have been stricken in this case and there is nothing to indicate that this is not true. Compare Gamble v. State, supra. Accordingly, we hold that, notwithstanding the relatively "weak explanation" given for striking this particular juror, it was sufficient and that the trial court did not err in concluding that, as to all black prospective jurors eliminated by peremptory strikes, the State rebutted appellant's prima facie Batson showing. "A court charged with the duty of determining whether the prosecut[ing attorney] has rebutted a prima facie case may be less troubled by one relatively weak explanation for striking a black juror when all the remaining explanations are persuasive than where several of the prosecutor's proffered justifications are questionable." Gamble v. State, supra at 327(5), 357 S.E.2d 792. "The duty of deciding whether the defendant established intentional discrimination lies in the trial court. [Cit.] A trial court's finding of purposeful discrimination is a finding of fact which must be given deference by an appellate court. Ordinarily, great deference should be given to such a finding since it 'largely will turn on evaluation of credibility.' [Cit.] 'Thus, we may only reverse the trial judge's determination that the prosecution's peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous. [Cit.]' [Cit.]" McCormick v. State, 184 Ga.App. supra at 688, 362 S.E.2d 472.

2. "[Appellant] contends the pre-evidentiary charge rendered by the trial court [contained an incorrect statement concerning the credibility of witnesses]. He also asserts that the trial court intimated an opinion concerning [his] guilt ... in the pre-evidentiary charge. Our examination of the pre-evidentiary charge reveals no such defects. Moreover, a complete and accurate charge was given upon the conclusion of the evidence. Accordingly, we find no...