Higginbotham v. State

• Decision Date: 22 February 1993
• Docket Number: No. A92A1665,A92A1665
• Citation: 207 Ga.App. 424,428 S.E.2d 592
• Parties: HIGGINBOTHAM v. The STATE.
• Court: Georgia Court of Appeals

Page 592

428 S.E.2d 592

207 Ga.App. 424

HIGGINBOTHAM v. The STATE.

No. A92A1665.

Court of Appeals of Georgia.

Feb. 22, 1993.

James A. Yancey, Jr., Waycross, for appellant.

W. Glenn Thomas, Jr., Dist. Atty., Stephen D. Kelley, Asst. Dist. Atty., for appellee.

CARLEY, Presiding Judge.

Appellant and a co-indictee were charged with robbery by sudden snatching. The co-indictee pled guilty and appellant was brought to trial before a jury. A guilty verdict was returned and appellant appeals from the judgment of conviction and sentence entered thereon by the trial court.

1. Appellant gave an inculpatory statement. A Jackson- Denno hearing was conducted and the trial court found that the statement was admissible. Although appellant enumerates this evidentiary ruling as error, the inculpatory statement was clearly admissible. " ' "(T)he trial court's findings as to factual determinations and credibility relating to the admissibility of statements will be upheld on appeal unless they are clearly erroneous." (Cit.)' [Cit.] The trial court, by its ruling that the statement was voluntarily made, accepted the facts as put forth by the State, and this finding is not clearly erroneous." Dillman v. State, 201 Ga.App. 833, 835(2), 412 S.E.2d 557 (1991).

2. Appellant enumerates the general grounds. The record demonstrates that the victim positively identified the co-indictee as one of the two perpetrators. The co-indictee testified for the State and identified appellant as the other perpetrator. In his inculpatory statement, appellant admitted his participation in the robbery. Thus, the evidence was more than sufficient to authorize a rational trior of fact to find proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

3. Pursuant to appellant's motion under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the trial court held that a prima facie showing of racial discrimination had been made and ordered the State to give reasons for the employment of its peremptory strikes against black prospective jurors. The trial court accepted the State's proffered reasons as neutral and non-racial and denied appellant's Batson motion. Appellant enumerates this ruling as error.

The State had employed one of its peremptory strikes against a prospective juror who lived in the same general area as appellant and was of approximately the same age as he. Obviously, possible affinity between a prospective juror and the very defendant on trial can constitute a neutral and non-racial explanation for the employment of a peremptory strike. See Strozier v. Clark, 206 Ga.App. 85, 87 (4, 5), 424 S.E.2d 368 (1992) (civil Batson ). Compare Congdon v. State, 262 Ga. 683, 424 S.E.2d 630 (1993) (suspected prejudice against State's prosecuting witness based entirely upon extraneous criminal investigation); Randolph v. State, 203 Ga.App. 115(3), 416 S.E.2d 117 (1992). It was not required that the State prove that the prospective juror and appellant were personally acquainted. "A reasonable suspicion about a prospective juror's impartiality that falls short of justifying an excusal for cause might well justify the exercise of a peremptory strike. This is such a case.... We cannot condemn the prosecutor's reluctance to gamble on the significance of [the proximity of residence and nearness in age]." Hall v. State, 261 Ga. 778, 780(2), 415 S.E.2d 158 (1991). "[A] prosecutor may strike from mistake, or from ignorance, or from idiosyncracy." Gamble v. State, 257 Ga. 325, 326(2), 357 S.E.2d 792 (1987). The fact that several black prospective jurors, who apparently neither lived in the same general area as appellant nor were of the same approximate age, did serve on the petit jury leads credence to the State's assertion that its employment of a peremptory strike was neutral and non-racial. Compare Congdon v. State, supra. "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." Gamble v. State, supra 257 Ga. at 327(5), 357 S.E.2d 792. "The trial court's findings are, of course, entitled to 'great deference,' [cit.], and will be affirmed unless clearly erroneous." Gamble v. State, supra 257 Ga. at 327(5), 357 S.E.2d 792. The trial court's finding that the employment of a peremptory strike against a black prospective juror who lived in the same general area as appellant and who was of the same approximate age was racially neutral is not clearly erroneous.

The State also used a peremptory strike against another black prospective juror because he was a pastor. Obviously, employment as a pastor is a racially-neutral factor and the State's desire to secure jurors who are engaged in a less non-judgmental line of work is not illogical. The racial neutrality of this explanation is certainly not diminished by the fact that the State did not employ a peremptory strike against a white prospective juror who had previously served as a police chaplin. The law provides that a prosecuting attorney's explanation, even if it is based upon mistake or ignorance or idiosyncracy, "may be sufficient to rebut a prima facie Batson showing ( [cit.] ), so long as it is not ' " 'whimsical or fanciful' " but is "neutral," "related to the case to be tried," and a " 'clear and reasonably specific,' explanation of (the) 'legitimate reasons' for exercising the challenges." (Cit.)' [Cit.] In this case, there is no contention that anything in the record would show that the prospective juror was not [currently employed as a pastor]. Accordingly, it cannot be said that the explanation ..., even if based upon mistake or ignorance [or idiosyncracy], was whimsical or fanciful. [Cit.]" (Emphasis in original.) Bess v. State, 187 Ga.App. 185, 187(1), 369 S.E.2d 784 (1988). Giving the requisite "great deference" to the trial court's finding, there was no error in denial of appellant's Batson motion based upon the State's use of a peremptory strike against a pastor.

4. Over objection, evidence as to appellant's commission of another robbery by snatching was admitted into evidence.

The only connection that was shown to exist between the two crimes is that they both were robberies committed by appellant's sudden snatching of property from a victim. They were not closely related in time, having occurred 18 months apart. They were not related as to locality, having occurred only within the same county. They were not related as to the similarity of property stolen. They were not related as to the modus operandi. In violation of ...