Jackson v. State

• Decision Date: 03 October 2007
• Docket Number: No. A07A1119.,A07A1119.
• Citation: 288 Ga. App. 339,654 S.E.2d 137
• Parties: JACKSON v. The STATE.
• Court: Georgia Court of Appeals

288 Ga. App. 339

654 S.E.2d 137

288 Ga.App. 339

JACKSON v. The STATE.

No. A07A1119.

Court of Appeals of Georgia.

October 3, 2007.

Reconsideration Denied November 9, 2007.

J. Converse Bright, Valdosta, for appellant.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

BERNES, Judge.

Following a jury trial, Marcus Jerome Jackson was convicted of armed robbery, rape, aggravated sodomy, aggravated assault and kidnapping. He appeals, arguing that the trial court erred in excusing two jurors prior to the voir dire examination, in denying his Batson¹ challenge to the state's exercise of its peremptory challenges, in restricting his opening statement and in denying his motion to suppress the victim's out of court identification. We find no error and affirm.

On appeal, we view the evidence and all reasonable inferences therefrom in the light most favorable to the jury's verdict. Ellis v. State, 282 Ga.App. 17(1), 637 S.E.2d 729 (2006). So construed, the evidence showed that during the early morning hours of September 22, 2004, Jackson and his cousin, Lavar Bridges, entered a convenience store where the victim was working as a clerk. Both Jackson and Bridges had white shirts tied around their heads so that only their eyes were visible. The victim nevertheless recognized the two men because they had been in the store on several occasions. The men pointed their guns at the victim and demanded the store's money. The victim complied by opening the cash register. While Bridges was removing the money, Jackson dragged the victim at gunpoint to the restroom in the back of the store where he raped and sodomized her. Throughout the rape, the victim looked directly into Jackson's eyes.

After raping and sodomizing the victim, Jackson forced her to her knees, grabbed her head, and twisted her neck until it snapped. The victim fell to the floor and pretended to be dead. Jackson checked the victim's pulse several times, kicked her as she lay on the ground and then left the store. As soon as the victim was sure that Jackson and Bridges were gone, she called 911.

When the police arrived at the scene, the victim told the investigating officer that she was familiar with both of the assailants and that she had previously reported one of the assailants to the police for making improper purchases on his employer's ATM card.

The investigating officer learned that Bridges had been the subject of the prior police report and, based upon the description given to him by the victim, developed Jackson as the second suspect. He then showed the victim a photographic lineup depicting six males whose faces were covered in the same manner as that of the assailants during the commission of the crimes. She immediately identified Jackson as her attacker based solely upon the appearance of his eyes, and later identified him in court. Although she was unable to identify Bridges using only his eyes, she was able to identify him in a full-face lineup.

Bridges subsequently entered a negotiated guilty plea to robbery and received a sentence of ten years, with four to serve in confinement. The remaining charges against him were dismissed. As part of the plea negotiation, Bridges agreed to testify against Jackson. At trial, Bridges admitted that he and Jackson robbed the store at gunpoint and that after he took the money from the register and fled, he waited in the car for Jackson, who remained inside with the victim.

1. Jackson challenges the trial court's dismissal of two jurors and contends that the trial court erroneously denied his Batson challenge to the state's exercise of two peremptory strikes. We note that although voir dire was not transcribed, both the judge and the state explained the reasons underlying their decisions on the record. We address each of Jackson's complaints in turn.

(a) Jackson argues that the trial court erred when it excused two jurors without first allowing the parties to voir dire or otherwise inquire into the jurors' qualifications. We disagree.

The determination of whether to excuse a juror from service for either hardship or cause lies squarely within the broad discretion of the trial court. Stewart v. State, 277 Ga. 768, 770(3), 596 S.E.2d 143 (2004); Gulley v. State, 271 Ga. 337, 344(7), 519 S.E.2d 655 (1999); Dorillas v. State, 224 Ga.App. 336, 337(1)(a), (b), 480 S.E.2d 351 (1997). The trial court explained that it dismissed prospective juror number 18 because the juror had stated in open court that she was a college student and was in the process of taking final exams. The legislature has specifically authorized the excusal of a juror on this ground. OCGA § 15-12-1(a)(2) (students "shall be excused" from jury duty during their enrollment in postsecondary school and/or the taking of exams). See also Sealey v. State, 277 Ga. 617(8), 593 S.E.2d 335 (2004).

The trial court further explained that it excused prospective juror number 29 because the juror had informed the court that her nephew had recently been sentenced to serve 50 years in prison, that the trial judge himself had sentenced her nephew, and that she would not be able to be fair to anyone involved in the case. Under these circumstances, the trial court did not abuse its discretion by dismissing the juror for cause. OCGA § 15-12-1(a)(1); Bly v. State, 286 Ga. App. 43, 43-45(2), 648 S.E.2d 446, 448-449 (2007) (trial court did not err by excusing juror for cause who testified that she knew the defendant and could not be fair to both sides); Bell v. State, 276 Ga. 206, 207(2), 576 S.E.2d 876 (2003) (juror who had been employed with a criminal defense firm was properly dismissed for cause after he stated it would be impossible for him to give the state a fair hearing); Munn v. State, 263 Ga.App. 821, 824(4), 589 S.E.2d 596 (2003) (no error in excusing juror for cause who revealed a bias against the state); Mulvey v. State, 250 Ga.App. 345, 348(3), 551 S.E.2d 761 (2001) (noting that "a trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors") (citation and punctuation omitted). Accord Robles v. State, 277 Ga. 415, 419-420(4), 589 S.E.2d 566 (2003); Roberts v. State, 276 Ga. 258, 260(3), 577 S.E.2d 580 (2003); Smith v. State, 272 Ga. 874, 879(5), 536 S.E.2d 514 (2000); Felton v. State, 270 Ga.App. 449, 451(1), 606 S.E.2d 649 (2004).

Jackson nevertheless claims that the trial court was obligated to first allow his counsel to voir dire the jurors before their dismissal.² The record before us, however, does not show that Jackson moved the trial court for the opportunity to independently question the jurors prior to their excusal, and his failure to do so waives this issue on appeal. Bly, 286 Ga.App. at 45(2), 648 S.E.2d 446, 448-449.

Finally, Jackson's claim that he was entitled to have these particular jurors "put upon" him because they happen to be part of the original panel of potential jurors is unavailing. See OCGA § 15-12-161. "A defendant is entitled to an array of properly drawn, impartial jurors to which he may direct his peremptory challenges. A party is entitled to this as a matter of right; but, conversely, he is entitled to no more." (Citations and punctuation omitted.) Thompkins v. State, 181 Ga.App. 158, 160(3), 351 S.E.2d 475 (1986). See OCGA §§ 15-12-160, 15-12-165; Rucker v. State, 135 Ga.App. 468, 470-471(2), 218 S.E.2d 146 (1975), overruled on other grounds, Keaton v. State, 253 Ga. 70, 316 S.E.2d 452 (1984). Jackson was afforded this right.

(b) Jackson also contends that the trial court erred in denying his Batson challenge to the state's two peremptory strikes upon African-American jurors.

The three-step procedure for analyzing a Batson challenge is well known: The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.

(Citation omitted.) Floyd v. State, 281 Ga. App. 72, 635 S.E.2d 366 (2006). "With regard to the question of discrimination, the court should consider the totality of the circumstances related to the Batson claim." (Citation omitted.) Young v. State, 272 Ga. App. 304, 306(1)(b), 612 S.E.2d 118 (2005).

Because the prosecutor responded to Jackson's challenge by offering reasons for his decisions to strike the potential jurors, and the trial court ruled on that basis, the issue of whether Jackson made a prima facie showing of discrimination is moot. We, therefore need only address the sufficiency of the prosecutor's explanations. Williams v. State, 236 Ga.App. 190(1), 511 S.E.2d 561 (1999). When conducting this review, we are mindful that the decision as to discriminatory intent "rests largely upon assessment of the prosecutor's state of mind and credibility" and "therefore lies peculiarly within a trial judge's province." (Citation and punctuation omitted). Id. at 190, 511 S.E.2d 561. Consequently, we give great deference to the trial court's factual findings, which are disregarded only if they are clearly erroneous. Id.

Jackson is African-American and the victim in this case is white. The state exercised only two of its nine allotted peremptory challenges, one to strike an African-American female and the other to strike an African-American male. The trial jury consisted of four African-Americans and eight whites. An African-American also served as an alternate juror.

(i) The prosecutor explained his decision to strike prospective juror number 27, Ms. Jackson, as follows:

Judge, as to Ms. Jackson, the state would not have struck her if we were going to try a one-day case. However, I've had some cases tried in the past, I don't know if this Court has been involved with them, where we go home, a juror comes back, and she finds out she's related to or kin to the defendant...