Hillman v. State, 73908

• Decision Date: 05 March 1987
• Docket Number: No. 73908,73908
• Citation: 182 Ga.App. 47,354 S.E.2d 673
• Parties: HILLMAN v. The STATE.
• Court: Georgia Court of Appeals

Page 673

354 S.E.2d 673

182 Ga.App. 47

HILLMAN v. The STATE.

No. 73908.

Court of Appeals of Georgia.

March 5, 1987.

T. Lee Bishop, Jr., Albany, for appellant.

Hobart M. Hind, Dist. Atty., Earl Jones, Melodie B. Swartzbaugh, Asst. Dist. Attys., for appellee.

BIRDSONG, Chief Judge.

Earl Hillman, the appellant, appeals his conviction of two counts of terroristic threats made to Officer Scott Smith and Deputy Sheriff Ken Smith. On March 28, 1986, Officer Scott Smith was called to the home of defendant's mother as a result of disturbance created by Hillman, who had been drinking. After speaking to Hillman and his mother, Officer Smith returned to the police station. A few minutes thereafter Smith was called to the same address to quell another disturbance between Hillman and his mother. Approximately one hour later, Officer Smith received his third call to the same residence and found that Hillman had left, walking. Officer Smith found and arrested Hillman a short distance away and placed him in the rear of his patrol car. Smith testified that Hillman, who was black, told Smith, who was white, that "he was going to kill my white...." At the police station, Hillman again told Smith that he (Smith) "had to go to the grocery store, and someone would come up behind me and blow my brains out." The jailer and Deputy Sheriff Ken Smith overheard the threat made to Officer Smith in the police station. Officer Smith "took [Hillman] to be very serious. His demeanor, his attitude, his actions prior to his arrest ... the whole way he acted, I knew that he was serious."

Deputy Sheriff Smith testified that appellant told him "he didn't like white people and that he would kill us.... He told me he'd kill me if he caught me on the street." The defendant brings this appeal from a jury verdict of guilty on both counts. Held:

Defendant alleges the trial court erred in permitting the State to use racially discriminatory strikes in selecting the jury, and that the explanation given by the district attorney for such strikes was insufficient. This issue is controlled by Batson v. Kentucky, 476 U.S. ----, 106 S.Ct. 1712, 90 L.Ed.2d 69, decided April 30, 1986, which is of comparatively recent vintage, and lacking sufficient aging, decisional precedent is scarce and trial procedure to effect compliance with its mandate is sometimes erratic. In the instant case, neither counsel nor the court thought to place in the record the composition of the jury. We were made aware only that the nine peremptory strikes exercised by the State were directed solely against blacks, and that the defendant was a black male. Batson established the principle that a State denies a black defendant equal protection of the law when it puts him on trial before a jury from which members of his race have been purposefully excluded "solely on account of their race...." 106 S.Ct. at 1713, 90 L.Ed.2d at 76. A criminal defendant can establish a prima facie case of purposeful discrimination solely on evidence of the prosecutor's exercise of peremptory challenges at his trial. Once the defendant makes this prima facie showing, then the burden shifts to the State to come forward with a neutral explanation for its challenges to black jurors.

In the instant case, the prosecutor said the reason for his strikes was to obtain a "more mature juror ... as opposed to a younger...