Gardner v. State, A97A0412

• Decision Date: 12 March 1997
• Docket Number: No. A97A0412,A97A0412
• Citation: 483 S.E.2d 912,225 Ga.App. 427
• Parties: , 97 FCDR 1382 GARDNER v. The STATE.
• Court: Georgia Court of Appeals

Page 912

483 S.E.2d 912

225 Ga.App. 427, 97 FCDR 1382

GARDNER v. The STATE.

No. A97A0412.

Court of Appeals of Georgia.

March 12, 1997.

Certiorari Denied Oct. 10, 1997.

Kirbo & Kendrick, Bruce W. Kirbo, Jr., Bainbridge, for appellant.

J. Brown Moseley, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

ELDRIDGE, Judge.

Appellant Tadaris Gardner appeals a Decatur County jury's verdict finding him guilty of the July 18, 1995 armed robbery of a McDonald's Restaurant in Bainbridge, Georgia. Appellant's sole enumeration of error is a challenge to the trial court's determination that, pursuant to Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992), appellant's use of his peremptory strikes was racially motivated. Held:

In a two pronged argument, appellant contends that the trial court erred in rejecting his race-neutral explanations for striking jurors 40, 41, 54, and 61. Appellant contends that: (a) explanations which are race-neutral on their face must be accepted by the trial court in accordance with the Supreme Court of Georgia's decision in Jackson v. State, 265 Ga. 897, 463 S.E.2d 699 (1995); and (b) after the appellant articulated race-neutral reasons for the use of his strikes, the state failed to prove that such strikes were, in fact, racially motivated pursuant to Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). We address each assertion in turn:

First, appellant asserts that the Supreme Court of Georgia's decision in Jackson, supra, holds that unless discriminatory intent is inherent in the explanation, the trial court is required as a matter of law to accept the explanation, thereby concluding the inquiry. However, Jackson, supra, does not so hold. In Jackson, supra, is the explicit acknowledgment of the three step analysis of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ("Batson "), and by extension, the principles of Georgia v. McCollum, supra ("McCollum "). Accordingly, after a prima facie case is made demonstrating the discriminatory use of strikes, ¹ and explanations are given, the trial court determines whether the explanations, even if facially race-neutral, are in fact motivated by discriminatory intent. ² Jackson, supra at 899, 463 S.E.2d 699. This clear recognition of the trial court's role in ascertaining the presence of discrimination in otherwise race-neutral ³ explanations has been reiterated by the Supreme Court of this state time and again. "A trial court may also determine that improper discriminatory motive underlay the exercise of a peremptory challenge when the race-neutral explanation proffered by the strikes' proponent is so implausible or fantastic that it renders the explanation pretextual." Turner v. State, 267 Ga. 149, 476 S.E.2d 252 (1996); State v. Adams, 322 S.C. 114, 470 S.E.2d 366, 372 (1996); see also Gamble v. State, 257 Ga. 325(5), 357 S.E.2d 792 (1987).

Further, the importance of the trial court's role in identifying discrimination in explanations which may, on the surface, appear legitimate cannot be overstated: "In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the [striker's] state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.' " (Citations omitted.) Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991); Smith v. State, 264 Ga. 449, 454, 448 S.E.2d 179 (1994); Moak v. State, 222 Ga.App. 36, 473 S.E.2d 576 (1996); Hightower v. State, 220 Ga.App. 165, 166, 469 S.E.2d 295 (1996).

Contrary to appellant's assertions, Jackson, supra, re-affirms the trial court's role in the detection of discrimination and does not mandate a rubber stamping of any explanation given as long as it is facially race-neutral: step three of the inquiry is the trial court's determination as to whether it has been proven that "Jackson's explanation was motivated by discriminatory intent." Jackson, supra at 899, 463 S.E.2d 699. Moreover, this position has recently been reiterated by the Supreme Court of Georgia in Greene v. State, 266 Ga. 439, 443, 469 S.E.2d 129 (1996): "[O]nce a race-neutral explanation has been tendered, the trial court must then decide whether purposeful racial discrimination has been proven." Accordingly, the trial court did not err in refusing to simply accept appellant's facially race-neutral explanations and in performing its duty to determine whether appellant's use of his peremptory strikes was racially motivated.

Next, appellant contends that, under Purkett v. Elem, supra, explanations for strikes do not have to be "plausible" or "persuasive" as long as they are race-neutral on their face; appellant contends that he provided the trial court with race-neutral explanations for the use of his strikes, and that the state, thereafter, failed to prove that appellant's strikes were, in fact, racially motivated. See Jackson, supra at 899, 463 S.E.2d 699. ⁴ However, appellant's enumeration of error is framed incorrectly; by granting the McCollum motion and seating the jurors who had previously been struck, the trial court implicitly determined that the opponent of the strike, the state, had met its burden of showing discriminatory intent. Greene, supra at 443, 469 S.E.2d 129; Herrin v. State, 221 Ga.App. 356, 358, 471 S.E.2d 297 (1996). Once the explanation for the strikes has been proffered, "the inquiry [is] properly framed for the trial court's determination." Greene, supra at 443, 469 S.E.2d 129.

This determination can be based on numerous factors, such as the trial court's disbelief of the explanations, together with elements of the prima facie case; the trial court's knowledge of the community in relation to the explanations offered; or the trial court's knowledge of the one utilizing the strike in relation to the explanations offered. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Hernandez, supra at 365-366, 111 S.Ct. at 1868-1869; Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 914 (11th Cir.1993). Thus, while additional argument to the trial court may (or may not) aid the opponent of the strike's persuasive burden, the opponent is not required to introduce evidence beyond that already offered to establish the prima facie case. See Purkett v. Elem, supra at 766, 115 S.Ct. at 1770, 131 L.Ed.2d at 838 (following the prima facie showing and subsequent reasons for exercising strikes, the trial court, without explanation, overruled the Batson challenge); St. Mary's Honor Center, supra at 509-11, 113 S.Ct. at 2748-49, 125 L.Ed.2d at 418 (factfinder's disbelief of reasons put forward by defendant, together with elements of prima facie case, suffice to show intentional discrimination); Batson, supra at 85, 106 S.Ct. at 1716-17 (once prima facie showing is made, the trial court undertakes inquiry into such evidence of intent to discriminate as may be available); Hairston, supra at 914 (prima facie case sufficient to establish pretext). In the absence of further argument from the opponent of the strike, the trial court decides whether the proffered explanations are "strong enough to overcome the ... prima facie case." Lingo v. State, 263 Ga. 664, 665, 437 S.E.2d 463 (1993); Ford v. State, 262 Ga. 558, 559, 423 S.E.2d 245 (1992).

Therefore, appellant's inquiry, posited properly in a McCollum challenge, should be whether, under Purkett v. Elem, supra, the trial court erred in determining that intentional discrimination existed. And, that way madness lies.

For Batson and McCollum appellate review has been tangled together. This is so primarily because both deal with intentional discrimination in the use of peremptory strikes and because the three step framework of a Batson analysis is used when deciding a McCollum claim at the trial court level. However, claims under Batson and McCollum, upon reaching the appellate level, are in a very different posture. While a trial court's findings are entitled to "great deference" and will be reversed only if "clearly erroneous" under both Batson and McCollum, ⁵ there is a world of analytic difference in an appellate review of a finding that something does not exist, and an appellate review of a finding that something does exist. The perspective of a deferential appellate review of a McCollum claim is not the same as the perspective of a deferential appellate review of a Batson claim, and thus the expression and application of such deference in deciding a Batson case on appeal does not always provide a comparable expression of deference when applied to a McCollum case on appeal.

Under our current rules of criminal procedure, a Batson or McCollum challenge that reaches the appellate level is, necessarily, brought by a criminal defendant who has lost the battle over peremptory strikes in the trial court. Accordingly, in framing the issues, (1) a Batson claim will always entail a deferential review of the trial court's finding that racial discrimination was not present, because the trial court denied the defense motion on that basis and permitted the prosecutor's strikes; and (2) a claim under McCollum will always entail a deferential review of the trial court's finding that racial discrimination was present, because the trial court disallowed the defense strikes and granted the prosecution motion on that basis. Thus, the focus of the review is, obviously, entirely different. Nonetheless, appellate courts have attempted to apply Batson appellate rationale to McCollum appellate analysis without understanding, or at the very least acknowledging, the completely different perspectives of...