Drane v. State, S99P1003.

• Citation: 271 Ga. 849,523 S.E.2d 301
• Decision Date: 01 November 1999
• Docket Number: No. S99P1003.,S99P1003.
• Parties: DRANE v. The STATE.
• Court: Supreme Court of Georgia

523 S.E.2d 301

271 Ga. 849

DRANE v. The STATE.

No. S99P1003.

Supreme Court of Georgia.

November 1, 1999.

Reconsideration Denied December 20, 1999.

Billy I. Daughtry, Jr., Elberton, for appellant.

Daniel J. Craig, District Attorney, Thurbert E. Baker, Attorney General, Allison B. Goldberg, Assistant Attorney General, for appellee.

HINES, Justice.

A jury convicted Leonard M. Drane of malice murder, felony murder, and aggravated battery, and imposed a death sentence for the malice murder. The evidence adduced at trial showed that Drane and co-indictee David Willis picked up Renee Blackmon on June 13, 1990, and drove her to a secluded road. Ms. Blackmon's body was found in a lake on July 1, 1990. She had been shot point-blank in the head with a shotgun and her throat had been cut at least six times. She was tied to a brake drum with a rope. After his arrest, Drane claimed that Willis had sex with the victim and shot her with a shotgun, and then cut her throat because she was still breathing. Drane said he did not know Willis was going to kill the victim and he did not participate in her killing. However, he admitted helping Willis dispose of the body, hide the gun, wash Willis's truck, and burn their clothes; and that he continued to live with Willis for three weeks until their arrest. He claimed he did so because he was afraid of Willis.

At trial, a witness testified that Drane told her prior to his arrest that he and Willis "picked this [black] girl up at the Huddle House in Elberton, Georgia, and that it would be the last ride she'd ever take."¹ He further said he "[had sex with] her so bad that she'd never have any more babies" and that he and Willis threw her in the lake. He said the only mistake he made was to put one block on her instead of two (the body had just been discovered). Another witness testified that Drane told him he cut the victim's throat because she was still alive after Willis shot her. On the night of the murder, after Willis and Drane had disposed of the victim's body, they went to a bar and met some women. They went with the women to a trailer, where they drank beer and made comments about hating blacks. One of the women noticed that the men, who were not wearing shirts, had scratches on their chests. In the penalty phase, one of the women testified that Drane forced her to orally sodomize him at knife point that same night.

In Drane v. State, 265 Ga. 255, 455 S.E.2d 27 (1995), we held that the evidence was sufficient to support Drane's convictions and the finding of the existence of the statutory aggravating circumstances, id. at (1) and (7), 455 S.E.2d 27, but we remanded the case to the trial court to determine: (1) whether the prosecutor's peremptory strikes were gender-neutral and (2) whether there were exceptional facts and circumstances so that the exclusion of Willis's alleged confession to a cellmate deprived Drane of due process. Id. at 256, 455 S.E.2d 27. Because the results of the proceedings on remand call for further appellate review, we now address these issues and other remaining enumerations of error.

1. At Drane's 1992 trial, the state used nine out of nine peremptory strikes to remove female prospective jurors from the jury. The jury was selected from 39 prospective jurors, 22 of which were women.² Eight females were members of the jury which convicted Drane and sentenced him to death. Pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), defendant made a motion based on the state's alleged gender bias in the use of its peremptory strikes. The state responded that Batson did not apply to gender. The trial court denied the motion. While Drane's appeal was pending, the United States Supreme Court decided J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), which held that the equal protection clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender. Drane, 265 Ga. at 256(2), 455 S.E.2d 27. Accordingly, we remanded this issue to the trial court for a hearing regarding the state's explanation of its peremptory strikes, and for a finding from the trial court as to whether the state's strikes were gender-neutral. Id.

"Once a party challenging the exercise of a peremptory strike makes a prima facie showing of gender-based discrimination, the party exercising the strike must give an explanation for the strike that is gender-neutral, reasonably specific, and related to the case." Tedder v. State, 265 Ga. 900(2), 463 S.E.2d 697 (1995).³ "It is then for the trial court to determine, after considering the totality of the circumstances, whether the opponent of the strike has shown that the proponent of the strike was motivated by discriminatory intent in the exercise of the peremptory challenge." Turner v. State, 267 Ga. 149(2), 476 S.E.2d 252 (1996). "A trial court's findings on whether the opponent of the strike has met his burden of persuasion is entitled to great deference and will be affirmed unless clearly erroneous." Barnes v. State, 269 Ga. 345(6), 496 S.E.2d 674 (1998); Turner, supra.

On remand, the trial court found that the state had not discriminated on the basis of gender in its peremptory challenges after hearing the prosecutor's reasons for his strikes. Five prospective jurors were struck because they expressed reservations about imposing a death sentence and two prospective jurors had relatives who had been convicted of crimes and incarcerated. These are valid gender-neutral reasons which are adequate to justify a peremptory strike. See Barnes, supra; Davis v. State, 263 Ga. 5(10), 426 S.E.2d 844 (1993); Tharpe v. State, 262 Ga. 110(6), 416 S.E.2d 78 (1992). Another prospective juror stated that she believed reasonable doubt meant no doubt and that vulgar language from witnesses would bother her. Since these reasons are also gender-neutral and no discriminatory intent is inherent in the state's explanation of the strike, we do not conclude that the trial court's acceptance of these reasons was clearly erroneous. See Barnes, supra. The state claims that the final prospective juror it struck was "not clear as to what reasonable doubt really was" and was "timid and quiet" during jury selection. The trial court did not err by accepting the state's first reason because the record provides support for it and there is no discriminatory intent inherent in the explanation. Id. Support for the state's second reason is not readily apparent in the record, but considering the totality of the circumstances, including the final composition of the jury and the existence of other valid gender-neutral reasons for this strike and other strikes by the state, we cannot conclude that the trial court's acceptance of this reason was clearly erroneous. Id. We find no error with the trial court's J.E.B. ruling.

2. During the guilt-innocence phase of the trial, Drane tried to introduce evidence that his co-indictee, Willis, confessed his role in the murder to cellmate Marcus Guthrie. The state objected on hearsay grounds. During a proffer outside the presence of the jury, Guthrie testified that Willis told him he shot Ms. Blackmon and cut her throat.⁴ Willis was unavailable to testify because his murder trial was pending. The trial court ruled the testimony inadmissible in the guilt-innocence phase because it was hearsay and unreliable, but Guthrie was permitted to testify about the alleged confession in the penalty phase. On appeal, we remanded the case to the trial court because it was unclear from the record whether the trial court adequately considered the elements of reliability and necessity which would require admission of this evidence in the guilt-innocence phase under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (failure to admit evidence of another's confession, offered in the guilt-innocence phase of trial, may constitute a violation of due process under certain circumstances). Drane, 265 Ga. at 257(3), 455 S.E.2d 27. See also Turner, 267 Ga. at 153-154(3), 476 S.E.2d 252. On remand, the trial court ruled that Guthrie's testimony, while "necessary" to the defense, was properly excluded in the guilt-innocence phase because Willis's statement to Guthrie "does not show persuasive assurances of trustworthiness nor was the statement made under circumstances providing considerable assurance of its reliability." We agree with the trial court.

Evidence of a co-indictee's alleged confession is generally inadmissible hearsay. Drane, supra; Guess v. State, 262 Ga. 487(2), 422 S.E.2d 178 (1992). However, another person's confession to a third party may be admitted in the guilt-innocence phase under exceptional circumstances that show a considerable guaranty of the hearsay declarant's trustworthiness. Chambers, supra at 300-302, 93 S.Ct. 1038; Drane, supra. The trial court must determine whether the value and reliability of the tendered hearsay evidence outweigh the harm resulting from a violation of the evidentiary rule. See Chambers, supra at 302, 93 S.Ct. 1038; Turner, 267 Ga. at 154-155(3),476 S.E.2d 252. In Chambers, the hearsay testimony was deemed trustworthy and admissible because the declarant (alleged to be the perpetrator by Chambers) made three spontaneous confessions to close friends shortly after the murder, the confessions were against the declarant's interest, each confession was corroborated by other evidence (including eyewitness testimony to the shooting, a sworn confession by the declarant that was admitted at trial, and evidence that the alleged perpetrator had been seen with the murder weapon), and the declarant was present in the courtroom and available for cross-examination. In a later case, the United States Supreme Court held that the same balancing test must be employed in the sentencing phase for this type of evidence and listed an additional consideration of whether the declarant's alleged...