Cook v. State, A90A1822

• Court: United States Court of Appeals (Georgia)
• Citation: 199 Ga.App. 14,404 S.E.2d 128
• Docket Number: No. A90A1822,A90A1822
• Parties: COOK v. The STATE.
• Decision Date: 20 February 1991

Page 128

404 S.E.2d 128 199 Ga.App. 14 COOK
v.
The STATE. No. A90A1822. Court of Appeals of Georgia. Feb. 20, 1991.
Rehearing Denied March 11, 1991.
Certiorari Denied April 11, 1991.

Page 129

[199 Ga.App. 18] Milton F. Gardner, Jr., Milledgeville, for appellant.

Joseph H. Briley, Dist. Atty., Al C. Martinez, Jr., Asst. Dist. Atty., for appellee.

[199 Ga.App. 14] McMURRAY, Presiding Judge.

Defendant was convicted of aggravated assault and this appeal followed the denial of his motion for new trial. Held:

1. Defendant first contends the trial court erred in denying his motion under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, arguing that the State used its peremptory strikes in a racially discriminatory manner.

"If 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." Gamble v. State, 257 Ga. 325(2), 357 S.E.2d 792.

The record in the case sub judice shows that defendant is black [199 Ga.App. 15] and that the State used its ten peremptory challenges to exclude prospective black jurors. The State's attorney explained that he struck two prospective jurors because they have close relatives who have been subjects of criminal prosecutions. The State's attorney explained that the remaining eight strikes were used to exclude jurors who had recently served on criminal juries which returned verdicts of not guilty. Defendant argues that these explanations are unbelievable because the State's attorney asked only one question during voir dire and because two prospective white jurors, who had recently served on an acquitting criminal jury, were not struck by the State.

" 'Once the prosecution establishes a neutral explanation related to the particular case to be tried, the trial court then will have the duty to determine if the defendant has established purposeful discrimination. Barton v. State, [184 Ga.App. 258(2), 259, 361 S.E.2d 250]. The trial court's findings are, of course, entitled to great deference, Batson, supra ... and will be affirmed unless clearly erroneous. Gamble v. State, 257 Ga. 325, 327[, 357 S.E.2d 792 supra]; accord Durham v. State, [185 Ga.App. 163, 165(3), 166, 363 S.E.2d 607]; McCormick v. State, 184 Ga.App. 687, 688-689 (362 SE2d 472) ((1987)); Killens v. State, 184 Ga.App. 717, 720 (362 SE2d 425) ((1987)); Evans v. State, 183 Ga.App. 436, 440 (359 SE2d 174) ((1987)). Because the U.S. Supreme Court has cautioned us that the trial judge's findings

Page 130

in the context under consideration here largely will turn on evaluation of credibility ... a reviewing court ordinarily should give those findings great deference. Hillman v. State, 182 Ga.App. 47, 48 (354 SE2d 673) ((1987)).' (Punctuation omitted.) Glanton v. State, 189 Ga.App. 505, 506-507 (376 SE2d 386) (1988). See also Bess v. State, 187 Ga.App. 185(1) (369 SE2d 784) (1988)." Kincey v. State, 191 Ga.App. 300(1), 381 S.E.2d 439.

In the case sub judice, we find no abuse in the trial court's determination that the State's explanations were credible and that the State's reasons for excluding the ten prospective black jurors were not aimed at purposeful discrimination. See Kincey v. State, 191 Ga.App. 300(1), 381 S.E.2d 439, supra. Consequently, the trial court's denial of defendant's motion under Batson v. Kentucky, supra, was not erroneous.

2. Next, defendant contends the trial court erred in failing to charge the jury on self-defense, arguing that his "testimony established a prima facie case of self defense." This argument is not supported by the record.

Defendant was charged with aggravated assault in that he did "make an assault upon the [victim] with a deadly weapon, to wit: a knife." The victim testified that defendant attacked him and cut him on the hand and head with a "little pocketknife." Defendant testified that the victim started the fight and that he did not possess a knife during the altercation. Defendant explained on cross-examination [199 Ga.App. 16] that he "couldn't tell [how the victim was stabbed, but speculated that the...