Gamble v. State

Citation257 Ga. 325,357 S.E.2d 792
Decision Date09 July 1987
Docket NumberNo. 44286,44286
PartiesGAMBLE v. The STATE.
CourtSupreme Court of Georgia

Sarah M. Tipton-Downie, Vidalia, Alan P. Layne, Lyons, Clive Stafford-Smith, Atlanta, for Willie Gamble, Jr.

Richard A. Malone, Dist. Atty., Swainsboro, William H. McClain, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Asst. Atty. Gen., for the State.

GREGORY, Justice.

Willie Gamble, Jr., was convicted in Emanuel County on two counts of murder and sentenced to death. Gamble, who is black, was tried by an all-white jury after the prosecutor used his ten peremptory challenges to strike all ten blacks from the venire. On appeal, Gamble contends that the manner in which the prosecutor exercised his peremptory challenges against blacks gave rise to an inference of discrimination--a prima facie case of purposeful discrimination--that was not successfully rebutted by the prosecutor. The principles recently announced by the U.S. Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), Gamble contends, require the reversal of his conviction. We agree, and reverse. 1

1. Batson was decided 12 days prior to the start of the jury voir dire in this case, a time too short for its ramifications to be completely analyzed by the trial court. It is applicable, however, to this case. Compare Griffith v. Kentucky, 476 U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

2. In the past, challenges of prospective jurors have included challenges for cause, which include challenges for principle cause and for favor, and peremptory challenges. See Jordan v. State, 247 Ga. 328(6), 276 S.E.2d 224 (1981). Challenges for cause are granted only if sufficient reason can be shown therefor. Peremptory challenges traditionally have required no justification.

However, Batson now makes it clear that the use of peremptory challenges is limited by and subject to "the commands of the Equal Protection Clause" of the Federal Constitution. Batson, supra, 106 S.Ct. at 1718. 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.

The proscription laid down in Batson is that a prosecutor may not strike a black juror solely because of his race, nor may he strike on the basis of an assumption which arises "solely from the jurors' race," nor may he strike "to exclude ... veniremen from the petit jury on account of their race." Id. at 1723.

A strike exercised under such an assumption will run afoul of the requirements of Batson that the action must be "neutral," "legitimate," and "nondiscriminatory," and shown to be such by "clear and reasonably specific" explanations.

It follows that the only limitation newly placed upon the "full peremptory character of the historic challenge" is a requirement of racial neutrality. Id. at 1723. Thus, a prosecutor may strike from mistake, or from ignorance, or from idiosyncracy. But he may not strike from assumptions based solely upon the jurors' race, nor may he use his peremptory strikes "to exclude the veniremen from the petit jury on account of their race."

3. Although, as Justice White has pointed out, "[m]uch litigation will be required to spell out the contours of the Court's Equal Protection holding." Batson, supra, 106 S.Ct. at 1725 (White, J., concurring)--including what it might take to establish a prima facie case of racial discrimination in the exercise of peremptory challenges--clearly, as the trial court recognized, Gamble made out such a prima facie case. He is black and therefore has standing to raise the issue of discrimination against blacks in the prosecutor's exercise of peremptory challenges. Compare Pope v. State, 256 Ga. 195(7f), 345 S.E.2d 831 (1986). And the prosecutor here exercised all of his peremptory challenges against all of the black prospective jurors on the qualified venire. This overwhelming " 'pattern' of strikes ... give[s] rise to an inference of discrimination." Batson, supra, 106 S.Ct. at 1723.

4. A defendant's prima facie showing of discrimination may be rebutted by proof "either that discriminatory purpose was not involved or that such purpose did not have a determinative [discriminatory] effect. [Cits]" Duren v. Missouri, 439 U.S. 357, 368 fn. 26, 99 S.Ct. 664, 670 fn. 26, 58 L.Ed.2d 579 (1979).

Here blacks comprised 23.8% of the qualified panel of 42 from which the jury was selected, but none were present on the jury which tried the case. Thus, the absolute disparity between the black percentage of the jury and the black percentage of the panel is 23.8%--more than sufficient to show that the prosecutor's exercise of peremptory challenges "had a discriminatory effect" on the racial composition of the jury. See Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531 84 L.Ed.2d 547 (1985).

5. Thus, the only remaining question is whether the prosecutor sufficiently showed "that discriminatory purpose was not involved." Duren v. Missouri, supra.

The trial court listened to the state's proffered rebuttal, and, observing that the prosecutor had offered racially neutral reasons for striking all the black prospective jurors, found that the prima facie case had been successfully rebutted.

The trial court's findings are, of course, entitled to "great deference," Batson, supra, 106 S.Ct. at 1724 fn. 21, and will be affirmed unless clearly erroneous.

However, " '[r]ubber 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.' Batson, 106 S.Ct. at 1723." State v. Butler, 731 S.W.2d 265 (Mo.Ct.App.W.Dist.1987).

In order to rebut a prima facie case of racial discrimination in the exercise of peremptories, the prosecutor must explain each peremptory challenge of a black prospective juror. 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." Batson, supra 106 S.Ct. at 1723, 1724 and 1724 fn. 20.

The explanation offered for striking each black juror must be evaluated in light of the explanations offered for the prosecutor's other peremptory strikes, and, as well, in light of the strength of the prima facie case. The persuasiveness of a proffered explanation may be magnified or diminished by the persuasiveness of companion explanations, and by the strength of the prima facie case.

A court charged with the duty of determining whether the prosecutor has rebutted a prima facie case may be less troubled by one relatively weak explanation for striking a black juror when all the remaining explanations are persuasive than where several of the prosecutor's proffered justifications are questionable. Similarly, a weak prima facie case may be rebutted more readily than a strong one.

6. In this case, the defendant and most of his witnesses were black. The victims and most of the state's witnesses were white. The prosecutor used all of his peremptory strikes to remove all of the blacks from the venire. A prima facie case was clearly made. Moreover, in this case, not one, but several of the prosecutor's explanations are suspect under Batson.

The prosecutor offered several reasons for striking juror Mason. One was that Mason knew the prosecutor, but the prosecutor did not know Mason. The prosecutor stated that he therefore "assume[d]" that he had been involved in a "child support case" with Mason. However, Mason testified on voir dire only that he knew the prosecutor as "the DA." This testimony does not readily support a reasonable, non-racial inference that the juror knows who the district attorney is because he has been prosecuted in a child support case. As the prosecutor himself conceded to the trial court, such an inference is "a very vague notion."

Second, the prosecutor claimed that Mason was uncooperative. The prosecutor stated: "He knew me is the only thing I got out of his entire business, and after that we couldn't get any additional information out of him." (Emphasis supplied.) An examination of the voir dire examination shows, however, that the state asked no questions of this juror.

The prosecutor also raised a question about Mason's military service, noting that he had served six years in the Army, and stating, "Army ups are usually four and from my experience people don't come out of the service in six unless for some reason they're put out of the service." After making this observation, however, the prosecutor stated: "That's something I don't know. I'm not trying to impute anything sinister to Mr. Mason."

The prosecutor did not ask Mr. Mason any questions about his military service, and what is in the...

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