Burton v. State

• Decision Date: 15 July 1998
• Docket Number: No. A98A0379.,A98A0379.
• Citation: 233 Ga. App. 429,504 S.E.2d 279
• Parties: BURTON v. The STATE.
• Court: Georgia Court of Appeals

504 S.E.2d 279

233 Ga. App. 429

BURTON v. The STATE.

No. A98A0379.

Court of Appeals of Georgia.

July 15, 1998.

Certiorari Denied November 20, 1998.

Thurmond, Mathis & Patrick, Adrian L. Patrick, Athens, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.

POPE, Presiding Judge.

Defendant Quathro Burton was convicted following a jury trial of the offense of burglary. His motion for new trial was denied, and he filed the present appeal to this Court.

1. Defendant's first enumeration of error, in which he challenges the sufficiency of the evidence to support his conviction, is without merit.

2. Defendant also argues the State failed to show a race neutral reason for striking an African American prospective juror.

"Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) requires the trial court to establish, on the record, that it has applied a three-part test to a party's claim of discrimination in the use of peremptory strikes. First, the party challenging a strike has the burden of making a prima facie showing of discrimination. The proponent of the strike must then produce an explanation for the strike which is race-neutral and non-discriminatory on its face, but `is not required to enunciate "an explanation that is persuasive, or even plausible."' The burden of proving that the proffered explanation is merely pretext for discrimination then shifts back to the challenging party." (Citations omitted.) O'Neal v. State, 226 Ga. App. 224, 225, 482 S.E.2d 478 (1997).

In this case the State volunteered its reason for striking the juror; thus whether the defendant established a prima facie case of discrimination is moot. See, e.g., Chunn v. State, 210 Ga.App. 209, 210(2), 435 S.E.2d 728 (1993).

The record shows that the reason the State offered for striking the juror was that she was a member of a particular church. No other juror claimed membership in the church. The prosecutor stated on the record: "Ms. Collins says she goes to Hill Chapel Church. Hill Chapel is one of the churches that were organizing protests about the way the police and the DA's Office were handling the Edward Wright shooting. I don't want anybody that goes to a church that thinks it's their business how the police and the DA's office conduct their business to the extent that they'll organize a protest about it on the jury. That's a religious organization, but yet, they will protest the way the police are doing their jobs. I don't want anybody on the jury that is a member of that church." "I don't care if it's a white church, a black church, or a Hispanic church or an Asian church, I don't want anybody who goes to a church that organizes political protests on my jury."

After the State proffered its reason, and the trial court accepted it as race neutral, the defendant, as the opponent of the strike, was required to show that the State's strikes were racially motivated. The trial court specifically found that the defendant failed to carry this burden. "[T]he ultimate burden of persuasion about the racial motivation rests with and never leaves the opponent of the strike." Holt v. Scott, 226 Ga.App. 812, 816, 487 S.E.2d 657 (1997).

Defendant argues, however, that the trial court erred in finding race neutral the State's reason for striking the prospective juror. "[C]oncern that a prospective juror is hostile to the State or that a juror will not seriously consider the State's evidence are neutral reasons for a strike." Jones v. State, 226 Ga. App. 428, 430(1), 487 S.E.2d 62 (1997). Defendant asserts that the State should have further questioned the juror to ascertain whether she had participated in the demonstrations or what her feelings were about the prosecution. But it was the defendant's and not the State's burden to show discriminatory intent, once the State gave its race neutral reason for striking the juror. See Turner v. State, 267 Ga. 149, 153, 476 S.E.2d 252 (1996). "`A trial court's determination of a Batson challenge rests largely upon assessment of the attorney's state of mind and credibility; it therefore lies peculiarly within a trial judge's province. The trial court's factual findings must be given great deference and may be disregarded only if clearly erroneous.' (Citations and punctuation omitted.) Holt v. Scott, 226 Ga.App. 812, 816, 487 S.E.2d 657 (1997)." Johnson v. State, 231 Ga.App. 114, 117, 497 S.E.2d 666, (1998). "[C]onsidering the totality of the circumstances, including the racial composition of the trial jury ... we cannot conclude that the trial court's Batson ruling was clearly erroneous." Barnes v. State, 269 Ga. 345, 350-351, 496 S.E.2d 674 (1998).

Judgment affirmed.

ANDREWS, C.J. and BLACKBURN, J., concur.

ELDRIDGE, J., concurs specially.

McMURRAY, P.J., BEASLEY and RUFFIN, JJ., dissent.

ELDRIDGE, Judge, concurring specially.

I concur only in the judgment of the majority.

Respectfully, I cannot agree with my appellate colleagues' Batson analysis which, to me, has had the result of vitiating Batson/McCollum challenges in this State.

1. Under the majority's analysis, the Batson test is now, in effect, a four-step inquiry: (1) A prima facie showing; (2) a facially race-neutral explanation; (3) an independent requirement that the opponent of the strike prove that the otherwise race-neutral explanation is not really neutral (i.e., proving a negative); and then, (4) the trial court's decision based upon whether the opponent proved the race-neutral reason was not really neutral.

Under this model, a trial court commits reversible error if it "collapses the steps" by deciding too soon that an otherwise race-neutral reason is or is not neutral before the opponent of the strike "proves" it to the court. See, e.g., Smith v. State, 232 Ga.App. 458, 501 S.E.2d 622 (1998); Gilbert v. State, 226 Ga.App. 230, 486 S.E.2d 48 (1997). However, a review of the decisions of other states shows that Georgia is alone in such interpretation; no other states have reversed based upon a "premature" evaluation of step three.¹ See particularly People v. Payne, 88 N.Y.2d 172, 643 N.Y.S.2d 949, 957, 666 N.E.2d 542, 550 (1996). Such review shows that while other states recognize that the "burden of persuasion never leaves the opponent of the strike" pursuant to Purkett, that language does not translate into an inquiry independent of steps one and two, but is simply part and parcel of the trial court's step-three evaluation "in light of all relevant circumstances," including the persuasiveness of otherwise race-neutral strikes. Bruner v. Cawthon, 681 So.2d 161, 171 (Ala.Civ.App. 1995). Further, in this State, in departure from all other states, we will reverse on appellate review if we decide that the opponent of the strike did not sufficiently meet his burden to prove that an otherwise facially race-neutral explanation was not really neutral—even if we recognize the trial court's basis for deciding contrary to our perceptions. See Malone v. State, 225 Ga.App. 315, 317, 484 S.E.2d 6 (1997) and Smith v. State, supra, reversing the trial court although "it is fairly easy to understand why the trial court found some of the reasons given for the peremptory strikes to be unpersuasive."

To my mind, it is extremely important to realize that the great majority of states have struggled in the "aftermath" of Purkett. See, e.g., Maddox v. State, 708 So.2d 220, 229 (Ala.Crim.App.1997), (Long, P.J., concurring). The exasperation level is such that some states have simply refused to follow Purkett, finding that opinion "a digression" from prior federal decisions and relying instead on Batson protections under state constitutional grounds. See, e.g., People v. Jamison, 50 Cal.Rptr.2d 679, 686 (1996). However, the majority of states have interpreted the Purkett decision as affirming that the "primary determination of whether the [striker] acted with unlawful purpose during jury selection [is] in the hands of the trial judge," thereby keeping Batson/McCollum challenges viable in their respective states. (Emphasis supplied.) State v. Vargas, 260 Kan. 791, 926 P.2d 223, 227 (1996). Yet, Georgia, apparently alone, has used the Purkett decision to develop a model for Batson/McCollum appellate inquiry that appears to me so unclear in its application and results in such routine reversal of the trial courts that, in my view, it seems safe to assume that fear of reversal has become a primary motivating factor in most trial court's step-three determinations, thereby rendering Batson/McCollum challenges useless in this State.²

Certainly neither Purkett, Batson, McCollum, nor any other United States Supreme Court case provides a legal basis for such appellate control. Indeed, it is hard to imagine how the Supreme Court could have advised against such micro-management any more strongly than it did in Purkett when reversing the Eighth Circuit Court of Appeals for refusing to give deference to the trial courts' step-three credibility determination. And it appears to me that Georgia, especially, cannot afford to permit the de facto disappearance of Batson in light of the evils that decision was designed to address. I urge—again—that the model be changed in Georgia so as to give viability to challenges made under Batson/McCollum.

In reality, under Purkett as interpreted by the majority of states, determining whether "the opponent of the strike met its burden of proving discriminatory intent," is the third step and does not require proof independent from steps one and two. As recognized by the majority of states, the trial court's step-three determination is based upon "a variety of factors" as articulated by the United States Supreme Court.³State v. Brooks, 960 S.W.2d 479 (Mo. banc 1997). "At the third stage, it becomes the function of the trial court to assess the `genuineness' of the [striker's] explanation[s] and the credibility of the [striker]...