Leeks v. State

Decision Date07 September 1988
Docket Number76554 and 76555,Nos. 76410,76411,s. 76410
Citation188 Ga.App. 625,373 S.E.2d 777
PartiesLEEKS v. The STATE. CALDWELL v. The STATE.
CourtGeorgia Court of Appeals

Bentley C. Adams III, Thomaston, for appellant (in nos. 76410, 76411).

Virgil L. Brown, Concord, for appellant (in nos. 76554, 76555).

Johnnie L. Caldwell, Jr., Dist. Atty., Eric D. Hearn, Asst. Dist. Atty., for appellee.

Michael R. Hauptman, Atlanta, John A. Beall IV, Peachtree City, amici curiae.

BEASLEY, Judge.

Co-defendants Leeks and Caldwell appeal the overruling of their pleas of former jeopardy (Case No. 76410, 76555) and their convictions for armed robbery, (OCGA § 16-8-41), (Case Nos. 76411, 76554). 1

Both defendants enumerate the same three asserted errors: overruling their pleas in bar; proceeding to trial after notices of appeal were filed from the overruling of the pleas in bar; failing to charge on theft by taking as a lesser included offense, as requested.

1. Because there was no written order overruling or denying the pleas of former jeopardy, the appeals from the oral pronouncement are dismissed. Bishop v. State, 176 Ga.App. 357, 358, 335 S.E.2d 742 (1985); OCGA § 5-6-34(a).

2. It is unnecessary to reach the merits of the first two enumerations because of what finally transpired and its connection with the nature of defendants' foundational complaint. They contend that they were entitled to the jury first selected and that being deprived of it constituted a violation of OCGA §§ 15-12-165 and 15-12-166 and Fourteenth Amendment due process guarantees. 2 The jury which was first selected was the jury which was reselected and tried the cases, except for two members whose inclusion did not deprive defendants of the statutory or due process protections invoked.

Here is what happened. During juror selection, the State made a motion objecting that defendants, who are black, were striking prospective jurors solely because they were white, that such racially based action was "reversed Batson in its purest form," and that to strike a jury in that manner was against public policy and prejudicial not only to the State but to the potential jurors. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The constitutional reach of the principles upon which Batson is based has been drawn in question. See, e.g., McGuire v. State, 185 Ga.App. 233, 363 S.E.2d 850 (1987).

The trial court found the Batson objection premature and defendants' conduct not subject to a Batson objection, but that the actions of the defense in striking the white veniremen might have violated equal protection under the federal constitution. The court withheld a ruling on the State's motion to allow the State, at the conclusion of jury selection, to attack the defense conduct, not on the basis of Batson but on the ground that the conduct violated federally- prescribed equal protection.

Juror selection was completed but the jury was not sworn. The jury consisted of eleven blacks and one white. The State renewed its motion. The court held a hearing outside the jury's presence, in which it asked defense counsel to "articulate a neutral explanation" for striking each of the white veniremen.

The court found that defense counsel failed to articulate a neutral explanation. The court then, sua sponte, created a second jury by replacing the selected black jurors with the stricken white veniremen. Defendants objected on state and federal constitutional due process grounds. The court orally denied an immediate appeal and recessed the proceeding.

The following morning, the court rescinded its action and gave counsel another opportunity to select a jury from the same venire. A third jury comprised solely of black jurors was selected by the parties and sworn. Then defense counsel notified the court that they had filed pleas of former jeopardy on the basis that the first jury should have been sworn and therefore that jeopardy had attached, and that members of defendants' race were temporarily excluded from the second group. The court overruled the motions because the first group had not been sworn (see OCGA § 16-1-8(a)); and the second group had been disbanded. Defense counsel then asked for permission to appeal from the ruling. The court refused on the ground that the pleas were moot, and the trial proceeded to conviction and judgment. Defendants filed notices of appeal from the double jeopardy rulings the same day, and appeals from the convictions several weeks later.

Ten of the twelve people originally selected were on the trial jury. On second thought, defendants chose to strike a black female who was a former deputy sheriff. The State struck, apparently because she was a former client of Leeks' attorney, the only white person who had been in the first group. In the stead of these two prospective jurors, two black people were chosen.

Since defendants were unimpeded in their exercise of peremptory challenges in selecting the jury which tried them, OCGA § 15-12-165 was complied with. They were free to strike all whites, they were free of any reverse notion arising from Batson, and they were free to be arbitrary and capricious if they wished. Plummer v. State, 229 Ga. 749, 194 S.E.2d 419 (1972); Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892). If they were not, they raised no complaint about it, and the selection of an all-black jury demonstrates otherwise.

Nor was OCGA § 15-12-166 violated. But for the two, the very same jurors originally selected were sworn and served. As to the black ex-deputy sheriff, defendants struck her after reconsideration. As to the white former client of defendant Leeks' attorney, defendant did not insist that she be permitted to serve and did not challenge the State's striking of her. After the jury was selected and sworn, defense counsel voiced no objection other than that they wished an immediate appeal of the disbanding of the first unsworn group and proceeding thereafter, as constituting double jeopardy.

Finally, constitutional due process in its aspects called into force by defendants here was not violated. Defendants were...

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4 cases
  • Spencer v. State, A89A1367
    • United States
    • Georgia Court of Appeals
    • September 18, 1989
    ...the Fifth Amendment to the United States Constitution. We therefore consider only that basis of attack. See Leeks v. State, 188 Ga.App. 625, 626(2) fn. 2, 373 S.E.2d 777 (1988); Taylor v. State, 177 Ga.App. 624, 628(3), 340 S.E.2d 263 Defendant was first tried on June 6, 1988. After two wit......
  • Harbin v. State, A89A1079
    • United States
    • Georgia Court of Appeals
    • October 3, 1989
    ...fails to provide a basis for our examination of the right purportedly deemed to have been violated. Accord Leeks v. State, 188 Ga.App. 625, 626(2), 373 S.E.2d 777 (1988). A constitutional issue cannot be considered when asserted for the first time on appeal but must be clearly raised in the......
  • State v. Alvarado
    • United States
    • Georgia Supreme Court
    • November 8, 1990
    ...of the cocaine. The state contends that the proper standard for charging on lesser included offenses is found in Leeks v. State, 188 Ga.App. 625, 628, 373 S.E.2d 777 (1988): "[I]t is never error for a trial court to refuse to charge on a lesser included offense even though requested in writ......
  • Southern Ry. Co. v. Georgia Kraft Co.
    • United States
    • Georgia Court of Appeals
    • September 7, 1988

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