Glanton v. State, s. 77164

• Citation: 376 S.E.2d 386,189 Ga.App. 505
• Decision Date: 10 November 1988
• Docket Number: 77165,Nos. 77164,s. 77164
• Parties: GLANTON v. The STATE. JONES v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 386

376 S.E.2d 386

189 Ga.App. 505

GLANTON v. The STATE.

JONES v. The STATE.

Nos. 77164, 77165.

Court of Appeals of Georgia.

Nov. 10, 1988.

Rehearing Denied Dec. 5, 1988.

W. Benjamin Ballenger, Summerville, for appellant in case no. 77164.

Carlton H. Vines, Summerville, for appellant in case no. 77165.

David L. Lomenick, Jr., Dist. Atty., Susan R. Sarratt, Asst. Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

Appellants, Eddie Glanton and Travis Jones, were jointly tried and convicted of burglary. Each has filed a separate appeal. Held:

1. Both appellants contend the trial court erred in allowing the State to use its peremptory strikes to exclude from the jury all three blacks who were prospective jurors. Counsel for Jones did not participate either in the initial jury voir dire of the prospective jurors or in the hearing on Glanton's motion raising this objection. Following Jones' counsel's arrival, he expressed a desire to proceed with the trial, even though the trial court offered to allow his client to be tried separately. He was then allowed to question the jurors already selected for the purpose of determining whether they were qualified to try Jones, with the understanding that if there was "one juror, or more, that might be disqualified, or for whatever reason would be objectionable, and couldn't serve on the jury [t]hen, of course, we would have to start all over...." Following this voir dire the State said: "We don't have any problems with this jury. [Jones' counsel]: None on behalf of Mr. Jones. [Glanton's counsel]: I wish I had some excuse, but I picked them, so I have got no problems."

Under the foregoing circumstances, we hold that Jones waived any objections to the composition of the jury which ultimately convicted him by affirmatively choosing to be tried by this jury rather than "to start all over." See generally. Spencer v. Hopper, 243 Ga. 532, 536-537, 255 S.E.2d 1, U.S. cert. den. 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116; Atkins v. Martin, 229 Ga. 815(3) 194 S.E.2d 463; Scott v. State, 172 Ga.App. 725, 727(3), 324 S.E.2d 565.

2. Turning to appellant Glanton's challenge to the array based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, we have found no prejudicial error. An appellate court is at a tremendous disadvantage in reviewing a record for error, when the basis for the claim of error is not recorded. See Baker v. State, 251 Ga. 464, 306 S.E.2d 917. In the instant case, error is asserted on the basis of peremptory challenges exercised by the State and voir dire was not recorded, nor was any attempt made to reconstruct the record. This court must rely upon the recollection of the parties and the trial judge as to what occurred during voir dire. It is not contested that the State used three of its peremptory challenges to strike three blacks from the venire. Nor is it at issue that they were the only three blacks in the venire pool. We find no possible error as to the striking of two of the blacks because they had testified they were "friends" of the defendant. Juror number 13 was struck because she said "she knew the defendant, she was friends with him." A second potential black juror was struck because she said "she had been friends of the family for a long time...." The third juror, "Portia L. McCutchins, she said that she knew the defendant, that's the reason we struck her." The assistant district attorney advised the court that she believed "the fact that they know the defendant might make them tend to lean toward what the defendant says, and we used our strikes in that manner." Opposing counsel mentioned that a white juror also testified that he knew the defendant "by sight" and was not challenged. Appellant's counsel argued to the trial court that the black jurors said "that they could be fair and impartial and that their friendship with the defendant would not, in any way, influence them...." (Emphasis supplied.) Hence, he argued that the State had not made a sufficient showing to rebut the inference of prejudice. The trial court disagreed and found that "although it may be a close question, as to the reasons for striking the McCutchins juror, there might be the same reasons for striking various white jurors. The Court will permit the trial to proceed with the jurors that are in the box."

The proscription set forth in Batson, supra, 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." ' " Mincey v. State, 257 Ga. 500, 502, 360 S.E.2d 578. This did not occur in the case at bar. The defendant can establish a prima facie case of purposeful discrimination in selection of the petit jury on evidence that the prosecutor struck all black members of the venire. Durham v. State, 185 Ga.App. 163, 166, 363 S.E.2d 607). Once the prosecution makes this prima facie showing, the burden shifts to the State to come forward with a race-neutral explanation for challenging black jurors. Barton v. State, 184 Ga.App. 258, 259, 361 S.E.2d 250. In this appeal, the prosecution established a racially-neutral basis for challenging each juror--that each black juror knew the defendant. The assistant district attorney argued to the judge: "the State often strikes people that they know the defendant, or if they know [defendant's counsel] or know some of the witnesses, so that is something we commonly do, whether or not they are black or white." Once the prosecution establishes a " 'neutral explanation related to the particular case to be tried[, t]he trial court then will have the duty to determine if the defendant has established purposeful discrimination.' " Barton v. State, supra, 259, 361 S.E.2d 250. "The trial court's findings are, of course, entitled to 'great deference,' Batson, supra ... and will be affirmed unless clearly erroneous." Gamble v. State, 257 Ga. 325, 327, 357 S.E.2d 792; accord Durham v. State, supra; McCormick v. State, 184 Ga.App. 687, 688-689, 362 S.E.2d 472; Killens v. State, 184 Ga.App. 717, 720, 362 S.E.2d 425; Evans v. State, 183 Ga.App. 436, 440, 359 S.E.2d 174. Because the U.S. Supreme Court has cautioned us that " 'the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility ... a reviewing court ordinarily should give those findings great deference.' " Hillman v. State, 182 Ga.App. 47, 48, 354 S.E.2d 673.

We should consider that basically "Batson stands for the principle that a prosecutor may not strike a black juror ... because of his race." Ford v. State, 257 Ga. 661, 362 S.E.2d 764. Not only was the challenge here not based upon race, but upon the fact that the juror knew the defendant, which is a racially-neutral basis, and the trial court found no merit to the motion. That finding is due great deference and "will be affirmed unless clearly erroneous." Gamble, supra. The trial court's ruling cannot be found clearly erroneous when the challenge is not based upon racial grounds, but upon the racially-neutral grounds that prosecutors use every day in every court of this state. See Mincey v. State, supra; Durham, supra; McCormick, supra; Killens, supra; Evans, supra; Hillman, supra.

This enumeration is without merit.

3. The appellants allege error in the refusal of the trial court to grant a mistrial after a police officer responded to the question: "Did you do anything else after that? A. On the 3rd of June, I asked Jones and Glanton if they wanted to make a statement, both declined to make a statement." Appellants' counsel objected and moved for a mistrial, which was denied. "Improper reference to a defendant's silence, however, does not automatically require reversal." Hill...