Dunn v. State

• Decision Date: 05 November 2018
• Docket Number: S18A1284
• Citation: 821 S.E.2d 354,304 Ga. 647
• Parties: DUNN v. The STATE.
• Court: Georgia Supreme Court

304 Ga. 647

821 S.E.2d 354

DUNN

v.The STATE.

S18A1284

Supreme Court of Georgia.

Decided: November 5, 2018

Michael Shane Howard, McMillan & Rawlings, LLP, Sandersville, Attorney for the Appellant

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Department of Law, Joshua Bradley Smith, A.D.A., Henry Wayne Syms, Jr., Rebecca Ashley Wright, District Attorneys, Augusta Judicial Circuit District Attorney's Office, Attorneys for the Appellee

Boggs, Justice.

In August of 2012, a jury found Justin Eric Dunn guilty of malice murder, felony murder, armed robbery, aggravated assault, and three counts of possession of a firearm during the commission of a felony in connection with the shooting death of Marquette Maurice Woods, armed robbery of Ricarlos Butler, and aggravated assault on Ruben Johnson.¹ Dunn was sentenced to life imprisonment plus 55 years. His amended motion for new trial was denied. He appeals, asserting as his sole enumeration that the trial court erred in granting the State’s challenge to a defense jury strike pursuant to Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).² For the reasons stated below, we affirm.

Sufficiency is not enumerated as error, but the evidence at trial, viewed in the light most favorable to the jury’s verdict, showed that Johnson acknowledged that he and Woods were in the business of dealing drugs from a house on Aragon Drive in Richmond County. On the day of the incident, Dunn’s brother, Rodriquez Dontrey Dunn ("Trey"), called Johnson seeking to purchase an ounce of crack cocaine. Later in the day, Dunn, Trey, and Detrich D'Antonio Cooper arrived at the house, where they remained in the kitchen until Johnson went to the refrigerator to get a beer. Cooper then grabbed Johnson from behind and pointed a chrome pistol in his face. Woods said something, and Johnson heard a shot. At about the same time that Cooper drew his pistol, Johnson’s brother, Butler, who had stopped by to visit Johnson, saw Dunn pull a "high powered automatic weapon" out of his pants. The other two individuals then robbed Butler. Johnson struggled with Cooper and then escaped out the back door of the house. After Johnson heard four or five more shots, Butler emerged from the house calling for Johnson and saying that Woods had been shot. The shot pierced Woods' pulmonary artery and vein and shattered one of his vertebrae, causing his death. Dunn, Trey, and Cooper fled the scene; shots were fired from their car as they drove away. Butler identified Dunn as the individual who shot Woods, and Johnson’s girlfriend, who was also present, recognized Dunn as one of the men involved in the shooting.

Though Trey was the only person Johnson knew, he was able to determine the identity of Trey’s companions through Trey’s Facebook page. Approximately a month after the shooting, a Richmond County deputy stopped a car occupied by Dunn. He observed Dunn and another man attempting to conceal something behind the back seat. A later search revealed that the object was a 9mm pistol. A forensic examiner testified that, based upon the examination of shell casings, that pistol was fired at the scene of Woods' murder. Upon his arrest, Dunn gave a false name, and, when his bedroom was searched with his mother’s permission, police found various types of ammunition, including 9mm rounds, a Georgia ID in Cooper’s name, and digital scales.

1. Although Dunn has not raised the sufficiency of the evidence in his appeal, we hold that the evidence was sufficient to support Dunn’s convictions under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In his sole enumeration of error, Dunn asserts that the trial court erred in seating panel member Number 28 on the jury over Dunn’s peremptory strike, based on the State’s objection pursuant to McCollum, supra.

In McCollum, the Supreme Court of the United States held that defendants are prohibited from engaging in purposeful racial discrimination in the exercise of peremptory strikes. When the State raises a McCollum objection, the trial court must engage in a three-step process to determine if the defendant’s peremptory challenges were used in a racially discriminatory manner. 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. Although the burden of production shifts to the defendant if the State makes a prima facie case, the ultimate burden of persuasion as to discriminatory intent rests with—and never shifts from—the State.

(Citations and punctuation omitted.) Edwards v. State, 301 Ga. 822, 824-825 (2), 804 S.E.2d 404 (2017). "In reviewing a trial court’s McCollum ruling, we afford deference to the [trial] court’s findings and affirm them unless they are clearly erroneous." Id. at 826 (2), 804 S.E.2d 404.

After voir dire and the selection of a jury, the State raised an objection. The jury was excused, and the trial court proceeded:

THE COURT: All right, your challenge, Ms. Easterling.

MS. EASTERLING [ADA]: Yes, sir. The State is challenging the defendant’s jury strikes on the basis of McCollum. The initial 39 jurors, 71 percent were black, which is 28 jurors; the remaining 11 ... were white, which is 29 percent. Now, ... the defendant used 55 percent of their strikes to strike white jurors in the case, Your Honor, resulting in a one hundred percent black ... jury, and excluding alternates. And it’s our position that the defense has systematically used their strikes to eliminate Caucasian jurors from the jury panel.

THE COURT: Okay. What say ye?

MS. EASTERLING: We are requesting a race neutral reason for each of their strikes, Your Honor.

Defense counsel reviewed her notes on each of the panel members struck by the defense, explaining her reasons for the strikes. With respect to panel member Number 28, a white female, the following exchange occurred:

MS. HIX [defense counsel]: Your Honor, I didn't believe that she—she’s extremely young. I just didn't believe that she could understand my client’s perspective and the nature of this kind of case.

THE COURT: Okay. Next?

MS. EASTERLING: Your Honor, we take issue with Number 28. That is not a race neutral reason.

THE COURT: I'm going to come back to that. Let’s go.

DEPUTY CLERK: That’s all the strikes, sir.

THE COURT: That’s all the strikes? I'm going to find your reasoning was race neutral on Number 6 ... race neutral on [Number 11]; race neutral on [Number 25], but not so on [Number 28].

MR. WHITE [ADA]: Your Honor, the reason we don't believe that it’s a race neutral reason is the defense allowed [panel member] Number 14, who’s 21 years old, a black female, to sit on the jury while using that strike to—

THE COURT: For which one now?

MR. WHITE: Ms. Hix offered as a race neutral reason for striking [Number 28]—

THE COURT: [Number 28] is going to serve.

MR. WHITE: I understand, Judge. We want to put on the record the reason we don't believe it’s race neutral is that the defense allowed [Number 14], who is a black female, who has a listed age of 21 years to sit on the jury and then offered as a race neutral reason the age of someone who is two years her senior.

MS. HIX: Your Honor, if I can respond to that. [Number 28] works at a credit union. She has a completely different life experience than a person who works in a fast food restaurant. And I believe that her life experience would make it so that she would not be able to understand the circumstances of this case, which are extremely—it’s extremely important that the jury understand what was going on in that house and the circumstances of both the decedent and the defendant.

THE COURT: I think all of your reasoning—

MS. HIX: This is a drug deal—

THE COURT: All of your reasons thus far were race neutral except for that juror.

MS. HIX: Yes, Your Honor. That would—if you seat [Number 28], that would leave me with having only struck eight. If your Honor finds that that wasn't a race neutral reason, I believe it was a race neutral reason. I believe that [Number 28] would not be able to understand the circumstances surrounding this case, given the type of work that she does and her age.

THE COURT: I'm going to place her on the jury....

Dunn concedes that the State presented a prima facie showing of racial discrimination, satisfying step one of the McCollum test. He contends, however, that the trial court failed to consider step three of the test, and improperly found in step two of the analysis that his explanation was not race-neutral. It is apparent from the transcript that both the State and Dunn, as well as the trial court, incorrectly employed the term "race-neutral" throughout the discussion surrounding the seating of Juror Number 28. We conclude, however, from the context and the entirety of the discussion that the trial court properly engaged in a step-three McCollum analysis....