Brown v. the State.

• Decision Date: 11 February 2011
• Docket Number: No. A10A1960.,A10A1960.
• Citation: 307 Ga.App. 797,706 S.E.2d 170
• Parties: BROWNv.The STATE.
• Court: Georgia Court of Appeals

307 Ga.App. 797

706 S.E.2d 170

11 FCDR 374

BROWN

v.The STATE.

No. A10A1960.

Court of Appeals of Georgia.

Feb. 11, 2011.

Davis Bozeman, Tawanna K. Morgan, for appellant.Tracy Graham-Lawson, District Attorney, Caroline C. Owings, Assistant District Attorney, for appellee.MIKELL, Judge.

Ryan Jerel Brown appeals from the order denying his motion for new trial following his conviction of armed robbery, aggravated assault, and possession of a weapon during the commission of a crime. Brown contends that the trial court erred by seating two jurors whom he had peremptorily struck, by denying his motions to suppress, by giving insufficient curative instructions when the prosecutor made improper comments during closing argument, and by denying his claim of ineffective assistance of counsel. Discerning no error, we affirm.

Although Brown does not challenge the sufficiency of the evidence to support his conviction, we recount it briefly for clarity. Construed most favorably in support of the verdict, the evidence shows that at 10:00 p.m. on February 6, 2008, Angelo Thomas Traficanti was withdrawing money from a drive-through Wachovia ATM on Jonesboro Road in Clayton County when a man appeared by his car window and pointed a gun at his face. The robber grabbed the money, $100 in $20 bills, and ordered Traficanti to withdraw an additional $200. The robber grabbed that money as well and then fled. Traficanti called 911 and described the robber as African–American, approximately six feet six to six feet eight inches tall, and reported that he was wearing a black and white bandanna covering his face, a black stocking hat, and black clothing. A police officer patrolling the area quickly spotted Brown jumping into his car, which was parked one building north of the Wachovia. After ordering Brown to exit his vehicle, the officer saw a black and white bandanna hanging out of Brown's front pocket. Brown was detained, and Traficanti was brought to the scene. Traficanti identified Brown as the robber. The police arrested Brown and searched his car, finding $300 in $20 bills, a small caliber handgun, and a stocking cap. The robbery was captured on the bank's surveillance camera, and photographs of the robber taking the victim's money at gunpoint were introduced into evidence. This evidence is sufficient to support Brown's conviction under the standard set forth in Jackson v. Virginia.¹

1. Brown first contends that the trial court erred in replacing two jurors on the jury panel. After Brown, who is African–American, used all of his peremptory strikes against Caucasian members of the venire, the state made a motion asserting that the defense had exercised its strikes in a racially discriminatory manner, as prohibited by Georgia v. McCollum.² The trial court agreed as to two of the peremptorily-struck jurors and ordered them seated on the panel. We find no error.

A trial court must employ a three-step procedure when presented with a McCollum challenge.³ First, the court must decide whether the state has made out a prima facie case of racial discrimination. ⁴

Once a prima facie case is made, the [defense] is required to set forth a race-neutral, case-related, clear and reasonably specific explanation for the exercise of the peremptory strike.... It is then for the trial court to determine, after considering the totality of the circumstances, whether the [state] has shown that the [defense] was motivated by discriminatory intent in the exercise of the peremptory challenge. The [state] may carry its burden of persuasion by showing that similarly-situated members of another race were seated on the jury. A trial court may also determine that improper discriminatory motive underlay the exercise of a peremptory challenge when the race-neutral explanation proffered by the [defense] is so implausible or fantastic that it renders the explanation pretextual. The trial court's findings concerning whether the [state] has carried the burden of persuasion are entitled to great deference and will be affirmed unless clearly erroneous. ⁵

In the case at bar, the trial court properly followed the three-step process and did not clearly err in its findings. First, the court correctly found that the state made out a prima facie case of racial discrimination by showing that Brown used all of his peremptory challenges against Caucasian jurors.⁶ The court then shifted the burden of production to the defense to give race-neutral explanations for the strikes.⁷ Counsel stated that he struck juror 175 because his son had been the victim of a car theft and the thief was never arrested, so counsel believed that the juror might be biased in favor of the prosecution. Counsel explained that he struck juror 177 because that juror had been the foreperson on a criminal jury and counsel “didn't want on too strong a personality.” After hearing these reasons, the trial court ruled that the burden of persuasion reverted to the state. Concerning juror 175, the state pointed out that Brown had not struck a juror whose tools were stolen from her truck. Regarding juror 177, the state noted that defense counsel did not strike another juror who had been a jury foreperson three times, although this juror had been the victim of a hate crime. Counsel admitted that he did not strike similarly-situated jurors.⁸ The trial court accepted defense counsel's explanations for seven of the nine strikes. However, the court found that the state had carried its burden of persuasion regarding racial motivation as to jurors 175 and 177, and seated them on the jury.

Brown contends that the trial court's choice of remedy violated his rights to a fair trial and an impartial jury because he had provided race-neutral explanations for the strikes. Even assuming arguendo that the reasons proffered by the defense were facially race-neutral, that does not end our inquiry, however, because “[i]n the situation in which a racially-neutral reason for the strike is given, the trial court must ultimately decide the credibility of such explanation.” ⁹ Thus, “although a trial judge must accept a facially race-neutral explanation for purposes of determining whether the proponent has satisfied his burden of production at stage two, this does not mean that the judge is bound to believe such explanation at stage three.” ¹⁰ In its order denying Brown's motion for new trial, the trial court clarified that it found the explanations pretextual after “reviewing the strikes, listening to the attorney's purported reasons and observing his demeanor. This court also considered in assessing the veracity of the attorney in striking the jurors, that he failed to strike similarly situated jurors.” “[A] trial court's determination of a McCollum challenge rests largely on assessing the attorney's credibility and state of mind and therefore lies peculiarly within the province of the trial judge.” ¹¹ Accordingly, “where, as here, racially-neutral reasons are given, the ultimate inquiry for the trial court is not whether counsel's reasons are suspect, or weak, or irrational, but whether counsel is telling the truth in his or her assertion that the challenge is not race-based.” ¹² Because the third step of the McCollum procedure requires the trial court to act as the trier of fact, its findings are entitled to great deference and will be affirmed unless clearly erroneous.¹³ Applying the appropriately deferential standard of review, we conclude that, under the totality of the circumstances, the trial court did not clearly err in finding that the state had shown that Brown was motivated by discriminatory intent in the exercise of the two peremptory strikes at issue.¹⁴

Finally, we reject Brown's contention that the trial court, having found the state's McCollum challenge meritorious, erred by reseating the affected jurors. The Supreme Court of Georgia has approved the practice of remedying Batson violations by reseating jurors who remain unaware of the party who struck them.

The prohibition of the discriminatory exercise of peremptory challenges does not violate a defendant's Sixth Amendment right to a trial by an impartial jury. When a [ McCollum ] challenge results in a finding that jury selection was not racially neutral and when, as here, the jurors remain unaware of the party who struck them, reinstating improperly challenged jurors does not abridge the defendant's right to a fair and impartial jury.¹⁵

Here, the order denying Brown's motion for new trial reflects that the trial court used the silent strike method whereby the attorneys strike jurors by random numbers, so that the jurors remain unaware of the party who excused them. The trial court did not err in seating the two jurors at issue.

2. Brown enumerates as error the denial of his motion to suppress evidence obtained as a result of the warrantless search of his vehicle. Brown asserts that the search was illegal because the arrest from which it flowed was not supported by probable cause. We disagree.

“When we review a trial court's decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” ¹⁶ So viewed, the evidence adduced at the suppression hearing shows that, on the night of the robbery, Forest Park Police Officer Stephen Geeslin heard the dispatcher's report of an armed robbery at Wachovia and responded to the scene within 30 seconds. Geeslin testified that the dispatcher reported, among other things, that the robber had fled on foot toward a storage facility. Geeslin proceeded to the Forest Park Shopping Center because of its proximity to the storage facility. The dispatcher reported that the suspect was wearing black clothing, including a black stocking cap and black bandanna imprinted with white...