Crawford v. State

• Decision Date: 22 June 1998
• Docket Number: No. A98A0759.,A98A0759.
• Citation: 504 S.E.2d 19,233 Ga. App. 323
• Parties: CRAWFORD v. The STATE.
• Court: Georgia Court of Appeals

504 S.E.2d 19

233 Ga. App. 323

CRAWFORD v. The STATE.

No. A98A0759.

Court of Appeals of Georgia.

June 22, 1998.

Reconsideration Denied July 9, 1998.

Sims, Fleming & Spurlin, James M. Walker III, Atlanta, for appellant.

C. Paul Bowden, District Attorney, for appellee.

SMITH, Judge.

Tony Anthony Crawford was indicted by a Worth County grand jury for possession of less than one ounce of marijuana, OCGA § 16-13-30(j)(1), and possession of a firearm by a convicted felon, OCGA § 16-11-131. He was convicted by a jury, his motion for new trial as amended was denied, and he appeals. Finding no error, we affirm.

1. Crawford asserts the general grounds. Construed in favor of the jury's verdict, the evidence shows that a narcotics investigator for the Worth County sheriff's office obtained a search warrant for Crawford's residence. The investigator and sheriff's deputies went to the residence the same evening to execute the warrant. Crawford answered the door, and one of the deputies found a bag containing suspected marijuana in Crawford's left rear pocket. A chemist with the State Crime Lab identified the substance as marijuana. The deputies continued the search and found a .22 magnum revolver on the headboard of the bed. The cylinder for the revolver was found, loaded, in a dresser drawer containing men's underwear, socks, and other clothing.

(a) With respect to the conviction for possession of marijuana, Crawford contends the State failed to prove the date of possession as alleged in the indictment. Because the indictment alleges the date of the offense as material, the proof must correspond to the date alleged. Price v. State, 247 Ga. 58, 59, n. 1, 273 S.E.2d 854 (1981). But "[c]ircumstantial evidence may be used to ascertain the date in question. [Cits.]" Decker v. State, 139 Ga.App. 707, 710(5), 229 S.E.2d 520 (1976). While the officers' testimony refers only to November 1995 without a specific date, the narcotics investigator also testified that the search of Crawford's residence was made on the "same evening" the warrant was obtained. The search warrant itself and the inventory sheet filled out by the investigator after the search were admitted into evidence without objection; both documents are dated November 22, 1995. In presenting the direct testimony of Crawford's girlfriend, defense counsel also referred to the date of November 22, 1995. Taken as a whole, the testimony and evidence adduced at trial were sufficient for a rational trier of fact to find beyond a reasonable doubt that Crawford possessed marijuana on November 22, 1995. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(b) Crawford also contends the State failed to prove that he possessed the firearm, which was found in two pieces, on the headboard of the bed and in a dresser drawer. Crawford's live-in girlfriend testified that she had borrowed the revolver from a friend and that Crawford never handled or exercised control over it. But the girlfriend's testimony as to where she left the revolver on the night of the search was inconsistent with the officers' testimony as to where it was found. She testified that she placed the revolver and cylinder on top of the dresser before she left for work that evening. She also testified that the cylinder was unloaded when she left the house. When the officers executed the search warrant, however, they found the revolver on the headboard, the cylinder in a dresser drawer containing men's clothing, and four cartridges in the cylinder. A jury is authorized to find constructive possession of a firearm by one occupant of a shared bedroom when the firearm is found in a dresser drawer containing clothing appropriate to that occupant's sex. Cantrell v. State, 204 Ga.App. 330, 331-332, 419 S.E.2d 141 (1992). Constructive possession is sufficient to prove a violation of OCGA § 16-11-131. Simpson v. State, 213 Ga.App. 143, 145-146, 444 S.E.2d 115 (1994). The jury weighed the evidence and judged the witnesses' credibility; the evidence was clearly sufficient to prove beyond a reasonable doubt that Crawford possessed the firearm found in his headboard and dresser drawer. Jackson v. Virginia, supra.

2. The trial court did not err in returning two jurors to the jury panel after Crawford exercised his peremptory strikes to remove them.¹ "The principles of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 [ (1986) ] apply equally to the defense as to the prosecution. [Cits.]" Ellerbee v. State, 215 Ga.App. 312, 315(6), 450 S.E.2d 443 (1994). Peremptory jury strikes may not be based upon race or gender, and claims of racial or gender-based discrimination are evaluated under the same standard. McGlohon v. State, 228 Ga.App. 726, 727, 492 S.E.2d 715 (1997). Crawford, an African-American, exercised all eleven of his peremptory strikes against white prospective jurors; nine were used against white male jurors. This established a prima facie case of discriminatory use of peremptory challenges. Gamble v. State, 257 Ga. 325, 327( 6), 357 S.E.2d 792 (1987); Osborne v. State, 263 Ga. 214, 215(3), 430 S.E.2d 576 (1993).

"To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent." (Footnotes omitted.) Chandler v. State, 266 Ga. 509, 510(2), 467 S.E.2d 562 (1996) The trial court's findings are entitled to great deference and will be affirmed unless clearly erroneous. Gamble, supra at 327(5), 357 S.E.2d 792.

While the trial court's use of the three-step process is not crystal clear, it is apparent, viewing the voir dire transcript as a whole, that the trial court first determined that a prima facie case had been made, listened to Crawford's reasons for all the challenged strikes, then allowed the State to respond before making a decision. This indicates that the trial court accepted Crawford's explanations as race-neutral under the second step of the test, but at the third step chose to disbelieve them following the State's response. Russell v. State, 230 Ga.App. 546, 548(2), 497 S.E.2d 36 (1998).

To rebut a prima facie case of discrimination in the use of peremptory strikes, the proponent of the strikes must explain each one. "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." (Citation and punctuation omitted.) Gamble, supra at 327(5), 357 S.E.2d 792. But "rubber stamp approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson's commitment to ensure that no citizen is disqualified from jury service because of his race." (Citations and punctuation omitted.) Id.

The explanation offered for striking each challenged juror must be evaluated in light of the explanations offered for Crawford's other peremptory strikes and the strength of the prima facie case. Explanations for other strikes may affect the trial court's decision: "A court charged with the duty of determining whether the [proponent] has rebutted a prima facie case may be less troubled by one relatively weak explanation for striking a ... juror when all the remaining explanations are persuasive than where several of the [proponent's] proffered justifications are questionable. Similarly, a weak prima facie case may be rebutted more readily than a strong one." Id.

Here, Crawford employed...