Hinson v. State
Decision Date | 30 March 1999 |
Docket Number | No. A97A0890.,A97A0890. |
Citation | 515 S.E.2d 203,237 Ga. App. 366 |
Parties | HINSON v. The STATE. |
Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Manning & Leipold, Calvin A. Leipold, Jr., Sharon Smith-Knox, Decatur, for appellant.
Fitzgerald Hinson, pro se.
J. Tom Morgan, District Attorney, Barbara B. Conroy, Benjamin M. First, Assistant District Attorneys, for appellee.
Defendant was tried before a jury and found guilty of trafficking in cocaine, violating the Georgia Controlled Substances Act ( ), and possession of a firearm during the commission of a crime. In a prior appeal, a majority of this Court affirmed the denial of defendant's motion to suppress and with all participating Judges agreeing we were bound by this Court's whole court decision in Belt v. State, 227 Ga.App. 425, 489 S.E.2d 157 ( ) reversed his convictions because the trial court failed, sua sponte, to give a limiting instruction contemporaneously with the introduction of extrinsic acts or similar crimes evidence. Hinson v. State, 229 Ga. App. 840, 842(3), 494 S.E.2d 693. The Supreme Court of Georgia granted certiorari to review that latter ruling and reversed, holding that "[r]egardless of when the defendant wishes the jury instructed on the limited admissibility of similar transaction evidence, it is incumbent upon him to make a timely request to the trial court for such a charge." State v. Hinson, 269 Ga. 862, 506 S.E.2d 870. Held:
1. Division 3 of our prior opinion and our prior judgment of reversal are hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court. Consequently, the trial court did not err in failing to give limiting instructions about the proper purposes for which extrinsic acts or similar crimes evidence is admissible, in the absence of a timely request. Division 1 of our prior opinion is not affected by the decision of the Supreme Court of Georgia. Consequently, our previous affirmance of the denial of defendant's motion to suppress is adhered to, for the reasons expressed in both the majority opinion and in the special concurrence of Judge Eldridge. Hinson v. State, 229 Ga. App. 840(1), 494 S.E.2d 693, supra.
2. Reviewing issues not previously considered, defendant first enumerates the general grounds.
It was stipulated that the substance was cocaine. When police searched the female companion, they found on her person no drugs or drug paraphernalia, no cellular or mobile telephone, no beeper or pager, nor any money. "The net weight [of the largest bag of white powder] was approximately 205 grams, which is a little less than half a pound." It was "approximately 39 percent pure." The "small bag containing six small ziplock bags ... that had chunky material... weighed about two and a half grams." In a subcompact car such as defendant was driving, the semiautomatic pistol was within arm's reach, even in the glovebox.
This evidence, including defendant's statement of ownership against his penal interest, is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 to authorize the jury's verdicts that defendant is guilty, beyond a reasonable doubt of trafficking in cocaine, possessing cocaine with intent to distribute, and possession of a firearm during the commission of a crime as alleged in the indictment. OCGA § 16-13-31(a)(1) (trafficking in cocaine); Sims v. State, 213 Ga.App. 151, 153(3), 444 S.E.2d 121 ( ); OCGA § 16-11-106(b)(4) ( ) See also Hinson v. State, 229 Ga. App. 840, 842(2), 494 S.E.2d 693, supra.
(Footnotes omitted.) Chandler v. State, 266 Ga. 509(2), 510, 467 S.E.2d 562.
It will rarely be the case that a party will admit that his purpose in striking a juror was racially discriminatory. Accordingly, the trial court in most cases must infer discriminatory intent from circumstantial evidence. (Punctuation and footnote omitted; emphasis in original.) St. Mary's Honor Center v. Hicks, 509 U.S. 502 [511], 113 S.Ct. 2742 [2749], 125 L.Ed.2d 407, 418-419 (1993). In addition, the court may consider whether "similarly-situated members of another race were seated on the jury," or whether "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, 151(2), 476 S.E.2d 252].
(Footnote omitted.) McKenzie v. State, 227 Ga.App. 778(1), 779, 490 S.E.2d 522.
(a) Defendant is an African-American male who used 11 of 12 peremptory strikes to remove white venire from the panel. The record does not reveal the final composition of the petit jury. The State waived any objection to juror nos. 3 and 7. The trial court accepted defendant's reason for striking juror no. 8, a white female student who is studying to get a Master's degree in school counseling as race-neutral. But for juror no. 9, a white male student, defense counsel could only articulate "bad body language with him[, plus] his age and experience or lack of experience...." The trial court noted that other jurors who were similar in age and experience were accepted, and "put [juror no. 9] back on the panel."
Turner v. State, 267 Ga. at 151(2), 476 S.E.2d 252, supra. The trial court in the case sub judice was authorized to conclude that defendant's articulated racially neutral reason was not being neutrally applied, which is sufficient to authorize a finding of discriminatory intent. McKibbons v. State, 216 Ga. App. 389(1), 390, 455 S.E.2d 293.
and put her back on the jury. Given counsel's factual inaccuracy (as opposed to lack of knowledge) regarding this juror's life experiences underlying defendant's stated racially neutral reason, the trial court was authorized to conclude that stated reason was pretextual.
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