Johnson v. State

• Decision Date: 02 May 2022
• Docket Number: A22A0567
• Parties: JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

872 S.E.2d 787

JOHNSON

v.The STATE.

A22A0567

Court of Appeals of Georgia.

May 2, 2022

Barbara Mattes, for Appellant.

Joshua Bradley Smith, Augusta, Geoffrey Alan Alls, Savannah, Jared Tolton Williams, Augusta, for Appellee.

McFadden, Presiding Judge.

After a jury trial, Derek Alexander Johnson was convicted of and sentenced for¹ several crimes in connection with a fatal shooting during a drug sale: voluntary manslaughter, criminal attempt to sell marijuana, and possession of a firearm by a convicted felon. On appeal, Johnson argues that the trial court erred in seating four jurors after the state challenged Johnson's exercise of peremptory strikes. But contrary to his argument, the record shows that the trial court conducted the proper analysis and did not err in that ruling. Johnson also argues that the trial court improperly commented on the evidence while questioning two trial witnesses, but he did not object to the trial court's questions and he has not shown plain error. So we affirm.

1. Ruling on peremptory strikes.

After the state challenged Johnson's exercise of peremptory strikes as discriminatory based upon either race or gender, the trial court reseated four jurors. Johnson argues this decision was error. He contends that the trial court did not properly evaluate the state's challenge but instead combined steps of the applicable analysis, thereby impermissibly shifting the burden of persuasion to him and failing to determine if the state had proved discrimination. But as detailed below, the record shows otherwise.

"[I]t is unconstitutional for a prosecutor or defense counsel to exercise a peremptory challenge to a prospective juror because of the juror's race or gender." Robinson v. State , 278 Ga. 134, 135 (1), 598 S.E.2d 466 (2004). In Batson v. Kentucky , 476 U. S. 79, 89-98 (III), 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court set out a framework for evaluating whether a prosecutor's peremptory strikes were racially discriminatory, and that framework has been extended to strikes that discriminate as to gender and to strikes made by defense counsel. See J. E. B. v. Alabama , 511 U. S. 127, 145-146, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ; Georgia v. McCollum , 505 U. S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). Under that analytical framework,

the trial court must engage in a three-step process to determine if the defendant's peremptory challenges were used in a racially discriminatory manner [or a manner that discriminated due to gender]. The opponent of a peremptory challenge must make a prima facie showing of racial [or gender] discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral [or gender-neutral] reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent. Although the burden of production shifts to the defendant if the [s]tate makes a prima facie case, the ultimate burden of persuasion as to discriminatory intent rests with — and never shifts from — the [s]tate.

Edwards v. State , 301 Ga. 822, 825 (2), 804 S.E.2d 404 (2017) (citations omitted).

The record shows that, in step one of this analysis, the state argued that the composition of the jury by race and gender did not resemble the composition of the group of prospective jurors, and the trial court found the state had made a prima facie case of racial and gender discrimination. Johnson did not challenge that finding at the time.

On appeal, he argues only that the state failed to perfect the record with regard to whether there was a prima facie case of discrimination. To the extent this argument concerns the appellate record it has no merit, because it is Johnson's burden, as the appellant, to show error affirmatively by the appellate record. See Arnold v. State , 198 Ga. App. 514, 516 (3), 402 S.E.2d 312 (1991). The decisions Johnson cites in support of this argument do not hold otherwise. Instead, those decisions are procedurally inapposite, because the appellants in those cases were the persons challenging the exercise of peremptory strikes and, as such, their burden of showing error by the appellate record included establishing a prima facie case of discrimination. See, e. g., Shaw v. State , 201 Ga. App. 438, 439-440 (1), 411 S.E.2d 534 (1991). But in any event, "[s]tep one of the inquiry is moot in the present case because [Johnson] tendered his purportedly race- [and gender-]neutral explanations for the peremptory strikes." Harrison v. State , 257 Ga. App. 718, 572 S.E.2d 4 (2002).

The record shows that the trial court then moved to step two, stating that "the burden shifts to the defendant to explain the striking[.]" This statement, in context, refers to Johnson's burden of production and does not support Johnson's argument that the trial court improperly imposed upon him a burden of persuasion. See Edwards , 301 Ga. at 825-826 (2), 804 S.E.2d 404 (a trial court's reference to the "burden" of the proponent of peremptory strikes must be considered in context to determine if the trial court conducted the proper inquiry into the strikes).

At this point, the record shows that Johnson offered race- and gender-neutral explanations for the strikes. Johnson was "not required to enunciate an explanation that is persuasive, or even plausible. Rather, a neutral explanation means an explanation based on something other than the race [or gender] of the juror. Unless a discriminatory intent is inherent in the proponent's explanation, the reason offered will be deemed race [or gender] neutral." Jackson v. State , 265 Ga. 897, 898 (2), 463 S.E.2d 699 (1995) (citations and punctuation omitted). Johnson's explanations for striking the four jurors at issue satisfied this minimum requirement. Among other things, he noted that one had law enforcement experience and was a crime victim, one was a business owner and a crime victim, one was "a member of the country club crowd" whom Johnson's counsel thought would be "more law and order than the general citizenry," and one was an IT worker. These explanations were based on something other than the jurors’ race or gender and were not inherently discriminatory.

The record shows that after Johnson's counsel offered race- and gender-neutral explanations for his strikes, the trial court asked the prosecutor if he wanted "to argue that – the issues?" By doing so, the trial court "implicitly indicat[ed] that [he] was moving to step three [of the analysis]." Edwards , 301 Ga. at 825 (2), 804 S.E.2d 404. See also Coleman v. State , 301 Ga. 720, 724 (4), 804 S.E.2d 24 (2017). The prosecutor then argued to the trial court that the reasons given by Johnson's counsel for seven of the eight strikes were pretextual (including the four strikes at issue here), and Johnson's counsel interjected arguments for why the strikes were not pretextual. Ultimately, the trial court found that four of the challenged strikes were "an improper strike" and reseated those jurors over Johnson's objection. The trial court found that the other challenged strikes were proper.

We agree with Johnson that the record could be clearer. But "[w]e conclude ... from the context and the entirety of the discussion that the trial court properly engaged in ... step[ ] three [of the] analysis." Dunn v. State , 304 Ga. 647, 651 (2), 821 S.E.2d 354 (2018). Nothing in the record suggests that the trial court prematurely ended the analysis at step two by rejecting Johnson's explanations as not race- or gender-neutral. Compare Jackson , 265 Ga. at 898-899 (2), 463 S.E.2d 699 (trial court erred by prematurely evaluating the persuasiveness of the defendant's explanations as part of the trial court's decision that the explanations were not race-neutral); Harrison , 257 Ga. App. at 719, 572 S.E.2d 4 (same). To the contrary, the trial court moved into step three by inviting the state to argue whether Johnson's proffered explanations were pretextual and by hearing both sides’ positions on that issue. See Edwards , 301 Ga. at 825 (2), 804 S.E.2d 404 ; Coleman , 301 Ga. at 724 (4), 804 S.E.2d 24. Because "the trial court heard and considered the [s]tate's response [to Johnson's explanations before he] found [race and] gender discrimination[, t]he trial court did not end [his] analysis at step two [and he] did not shift the burden of persuasion to [Johnson]." Tessmer v. State , 273 Ga. 220, 225 (5), 539 S.E.2d 816 (2000).

Where, as here,

all three steps of the ... analysis are completed and an explanation for the exercise of a peremptory strike is given, the trial court must ultimately decide the credibility of such explanation, and because the third step of the ... procedure mandates that the trial court act as the trier of fact, the trial court's findings are to be given great deference and are to be affirmed unless clearly erroneous.

Dunn , 304 Ga. at 652 (2), 821 S.E.2d 354 (citation and punctuation omitted). In Georgia the clearly-erroneous standard is equivalent to the any-evidence standard. Morrell v. State , 313 Ga. 247, 251, 869 S.E.2d 447 (2022). Johnson does not argue that the trial court's exercise of discretion in this regard was erroneous; instead, he argues that the trial court "failed to determine" whether the state had proved discriminatory intent.

But contrary to Johnson's position, the trial court was not required to make express findings on that point. A trial court's finding of pretext may be implicit, see Daniels v. State , 306 Ga. 559, 565-566 (2), 832 S.E.2d 372 (2019), and the "proffer of a pretextual explanation naturally gives rise to an inference of discriminatory intent." Toomer v. State , 292 Ga. 49, 55 (2) (b), 734 S.E.2d 333 (2012) (citation and punctuation omitted). See also Coleman , 301 Ga. at 723-724 (4), 804 S.E.2d 24 (holding that the trial court is not required to make an express finding as to whether purposeful discrimination in a jury strike was shown). So although the trial court did not clearly...