Hillman v. State
| Decision Date | 19 October 1987 |
| Docket Number | No. 74980,74980 |
| Citation | 184 Ga.App. 712,362 S.E.2d 417 |
| Parties | HILLMAN v. The STATE. |
| Court | Georgia Court of Appeals |
T. Lee Bishop, Jr., Albany, for appellant.
Hobart M. Hind, Dist. Atty., L. Earl Jones, and Melodie B. Swartzbaugh, Asst. Dist. Attys., for appellee.
Appellant was convicted of terroristic threats. In this second appearance of his case (see 182 Ga.App. 47, 354 S.E.2d 673 (1987)), appellant again challenges the trial court's finding that the prosecutor had provided a sufficiently neutral explanation for using nine of his peremptory strikes to eliminate nine black veniremen from the jury. We find no error in the trial court's ruling.
1. Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), "[i]f 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." Gamble v. State, 257 Ga. 325, 357 S.E.2d 792 (1987). When questioned in this regard at the Batson hearing held immediately after voir dire was completed, the prosecutor explained that he eliminated most of the veniremen because they appeared to be relatively young, and he was trying to get an older jury. His theory was that a more mature jury would be less prone to consume drugs or alcohol, or to act irresponsibly when they did consume such substances. Appellant was a 43-year-old black man who allegedly had been drinking when he committed the acts for which he was arrested. The prosecutor said that he struck juror No. 15, Plummer (age 30), because of his age and because he knew the district attorney; that he struck No. 25, Davis (age 25), because of her age and her unemployment; and that he struck No. 26, Bell (age 31); No. 33, Phillips (age 28); No. 34, Savage (age 28); and No. 36, White (age 26), all because of their youth. Phillips was also struck because of her employment at Legal Services. No. 37, Randall (age 41), was struck because the prosecutor knew of him and thought he "was a hard drinker." No. 39, Brunson (age 32), was struck because her family had close ties with appellant's family. The last venireman, No. 42, Clemons (age 29), was struck because of his youth and the prosecutor's dislike of the way his facial and cranial hair looked. The prosecutor's impressions about the ages of the persons he eliminated are borne out by the statistical information attached to the trial court's order after remand. The trial court found that the average age of the jurors struck by the State was 30, with a range of 25 to 41; and the average age of the jurors that were empaneled was 47, with a range of 27 to 74. The jury was composed of four black females, two black males, two white females, and four white males.
Appellant complains that the prosecutor's reasoning was insufficient to rebut the prima facie case of discrimination because he did not strike the 27-year-old white male who sat on the jury. However, the record indicates that the prosecutor's reason not to strike that person was because he was a minister and was adverse to alcohol. Since the voir dire was not taken down and there is no other indication of the extent to which the other veniremen were questioned about their opinions on alcohol and/or drugs, we cannot say that the "persuasiveness of [the] proffered explanation [is] magnified or diminished by the persuasiveness of companion explanations...." Gamble, supra at 327, 357 S.E.2d 792. We find the prosecutor's reasons to be adequate in light of the Batson standard and affirm the trial court's findings. Compare Gamble, Division 6.
2. Appellant's remaining enumerations of error regarding his motions in limine, for directed verdict, for mistrial, and for a new trial were raised in his first appeal but, contrary to the State's assertion, were not resolved against him at that time. Since this court's earlier opinion only addressed the Batson issue, we will now examine those still remaining.
Appellant contends that the trial court erred in finding that the State complied with OCGA § 17-7-210 and therefore permitted testimony by the arresting officer-victim about statements appellant made while he was in police custody. The record indicates that at the committal hearing held approximately two months after appellant was arrested, the officer testified that appellant threatened to "blow my brains out ... and made several other threats." At trial, the officer testified that in addition to the other threats he made, appellant used specific words ascribing to the officer certain relations he allegedly had with his mother and describing the officer as being a certain orifice of his anatomy. Appellant moved in limine to keep the statements out, and his motion was denied. During the testimony, he moved for a mistrial, which the trial court also denied. The testimony was allowed, and appellant claims reversible error. Since the oral statement had been provided in writing by means of the officer's written report and the committal hearing transcript, and since the written rendition was not significantly different in substance from the oral statements, we find no error in the denial of the motions in limine and for new trial. Rhodes v. State, 170 Ga.App. 473(2), 317 S.E.2d 285 (1984); Tyson v. State, 165 Ga.App. 22(1), 299 S.E.2d 69 (1983).
3. In the course of the prosecuting attorney's direct examination of one of the victims, he asked how the victim knew appellant was talking to him and not someone else. The witness replied, "Well, he knew me; he'd been in jail several times before." Appellant made no objection but asked to approach the bench, where a sidebar conference was held. The record later indicates that during that conference, appellant moved for and was denied a mistrial. Another witness later testified that appellant "had been [under the influence of alcohol] on the...
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...a police officer and there is no instruction to the witness, a mistrial is not necessary. King v. State, supra; Hillman v. State, 184 Ga.App. 712, 714(3), 362 S.E.2d 417 (1987). 7. Although he had not complied with the ten-day notice requirement of Uniform Superior Court Rules 31.1 and 31.4......
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Holsey v. State, s. A91A0392
...by the victim clearly did not, in any event, "rise to 'the level of prejudice that would demand a mistrial.' " Hillman v. State, 184 Ga.App. 712, 714, 362 S.E.2d 417 (1987). 3. Appellants Howard and Cedric Holsey contend that the court further erred in allowing the victim to testify without......