Clarke v. State, A13A1783.

• Decision Date: 13 December 2013
• Docket Number: No. A13A1783.,A13A1783.
• Citation: 325 Ga.App. 472,753 S.E.2d 134
• Parties: CLARKE v. The STATE.
• Court: Georgia Court of Appeals

325 Ga.App. 472

753 S.E.2d 134

CLARKE

v.The STATE.

No. A13A1783.

Court of Appeals of Georgia.

Dec. 13, 2013.

Clegg & Petrey, John H. Petrey, for Appellant.

Justin Drew Unger, Asst. Dist. Atty., Daniel J. Porter, Dist. Atty., for Appellee.

MILLER, Judge.

Following a jury trial, Oniel Warren Clarke was convicted of two counts of financial transaction card fraud (OCGA § 16–9–33(a)(2)(D)). Clarke appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motions to strike two jurors for cause. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury verdict,¹ the evidence shows that in October 2007, Clarke visited a Rick Case dealership to have service performed on his vehicle. Clarke was billed $1,754.30 for the service, and he paid with a MasterCard credit card issued to another individual. When the true cardholder disputed the charge on the basis that it was unauthorized, Rick Case received a statement indicating that it would be charged for the transaction amount. Rick Case never received payment for the October 2007 service.

Several months later, in March 2008, Clarke returned to Rick Case to have additional service performed on his vehicle. Clarke was billed $3,095.95 for the service, and as a partial payment against this bill, he made an unauthorized charge of $745.95 on an American Express account belonging to another individual. The matter was referred to the police for investigation, and Clarke ultimately was charged with credit card fraud.

On appeal, Clarke contends that the trial court erred in denying his motions to strike two jurors who expressed bias and partiality. We disagree.

Whether to strike a juror for cause is within the sound discretion of the trial court, and we will not reverse a trial court's exercise of that discretion absent a manifest abuse of discretion. Poole v. State, 291 Ga. 848, 851(3), 734 S.E.2d 1 (2012). Jurors are presumed to be impartial, and the challenger bears the burden of proving the juror's partiality. Id. at 852(3), 734 S.E.2d 1. Before a potential juror can be disqualified for cause on the ground that his or her ability to be fair and impartial is substantially impaired, the challenger must show that a potential juror's opinion “is so fixed and definite that the juror will not be able to set it aside and decide the case based on the evidence or the court's charge on the evidence.” (Citation omitted.) Id. A juror's opinion of his qualification to serve is not determinative of the issue of his ability to be fair and impartial. Id. at 851(3), 734 S.E.2d 1. Where there is some hint that a juror's ability to be fair and impartial is impaired, the trial court abuses its discretion by limiting inquiry into any potential bias. Doss v. State, 264 Ga.App. 205, 210(4), 590 S.E.2d 208 (2003). The parties and the trial court are permitted to ask questions that might rehabilitate a juror, but it is improper to “browbeat the juror into affirmative answers to rehabilitative questions by using multiple, leading questions.” (Footnote omitted.) Id. at 210–211(4), 590 S.E.2d 208.

(a) Clarke first asserts that the trial court erred in failing to grant his motion to strike Juror 9. During voir dire, Juror 9 stated that three retail stores that he owned had experienced credit card fraud and other theft, and that his personal credit card and his wife's financial information had also been compromised. When the prosecutor asked Juror 9 whether he could be impartial and fair based on those experiences, Juror 9 responded, “Do you think so?,” and then, “No.” The prosecutor then asked the following questions:

What you're saying is: If you had to sit and hear all of the witnesses testify and hear what they have to say, and then were given the law by the judge, do you think you could apply that law to the testimony you hear and come to a legal decision in this case, being fair to both the defendant and the State? Do you think you can do that?

Juror 9 responded in the affirmative. Clarke also asked Juror 9 whether he could reach a verdict based solely on the evidence and law and not on his personal experiences. Juror 9 responded that he could.

Clarke moved to strike Juror 9 for cause, arguing that his “Do you think so?” comment revealed a clear bias and inability to be impartial. The trial court noted that Juror 9's initial response did not allay concerns about his impartiality. Nevertheless, the trial court found that Juror 9's subsequent statements revealed that he could be fair and impartial and, as a result, the trial court denied Clarke's motion to strike.

Although Juror 9 initially expressed doubt about his ability to be fair and impartial, he ultimately confirmed that he could be fair and impartial in reaching a...