Littlejohn v. State

• Decision Date: 08 March 2013
• Docket Number: No. A12A2456.,A12A2456.
• Citation: Littlejohn v. State, 739 S.E. 2d 682, 320 Ga. App. 197 (Ga. App. 2013)
• Parties: LITTLEJOHN v. The STATE.
• Court: Georgia Court of Appeals

320 Ga.App. 197

739 S.E.2d 682

LITTLEJOHN

v.The STATE.

No. A12A2456.

Court of Appeals of Georgia.

March 8, 2013.

Wendell Rocky Adams, for Appellant.

Richard G. Milam, Dist. Atty., Lauren Alicia Love, Asst. Dist. Atty., for Appellee.

MILLER, Presiding Judge.

Following a jury trial, Daniel Kirk Littlejohn was convicted of burglary (OCGA § 16–7–1(a)(2009)), theft by taking (OCGA § 16–8–2), and second degree criminal damage to property (OCGA § 16–7–23(a)(1)).Littlejohn filed a motion for new trial, which the trial court denied.On appeal, Littlejohn contends that the trial court erred (i) in denying his Batson¹ challenge; (ii) in intimating an opinion as to the credibility of a witness and his guilt; (iii) in admitting similar transaction evidence without conducting a Uniform Superior Court Rule(“USCR”) 31.3 hearing; and (iv) in restricting the scope of his cross-examination of two witnesses.In addition, Littlejohn contends that (v) his trial counsel provided ineffective assistance.We discern no error and affirm.

Viewed in the light most favorable to the verdict,² the trial evidence shows that on the evening of August 6, 2007, the victims discovered that their residence in Monroe County had been burglarized.The residence was located in a rural area near the county line abutting the city of Macon.The victims observed that the perpetrator had gained entry by breaking through the steel gate and kicking in the side door of the residence.The victims noticed that the residence had been ransacked and numerous items had been stolen during the burglary, including a computer, a printer, a PlayStation II videogame system, several guns, a digital camera, a video camera, a crossbow, a chainsaw, two weed eaters, a small motorcycle, and a drug recognition expert (“DRE”) bag that the male victim had obtained during his law enforcement training as a POST-certified City of Macon police officer.The physical damage sustained to the residence as a result of the burglary exceeded $500.The total value of the victims' loss for the damaged and stolen items was $4,397.92.

The victims reported the burglary to the local sheriff's office, and officers were dispatched to investigate the matter.An officer took photographs of the scene.The officer also recovered a partial shoe print and a partial fingerprint, but neither print was sufficient to identify a suspect.

One day after the burglary incident, Littlejohn contacted his acquaintance, and attempted to sell him several of the victims' stolen items.Littlejohn was unaware that his acquaintance was a confidential informant who had supplied information to local law enforcement officers on several prior occasions.The informant testified that Littlejohn, whom he identified by his alias “Quiet Man,” drove to the informant's residence in Macon and showed the informant the stolen items.When the informant observed a police book with a badge inscription among the stolen items, the informant refused the stolen items in fear that the police may have been involved.In efforts to reassure the informant, Littlejohn advised that the items had been taken from a location in Monroe County.

After Littlejohn left the residence, the informant contacted an investigator with the Monroe County Sheriff's Department and advised that he had seen some of the items that had been stolen during the burglary.The investigator had known the informant for almost twenty-four years and had used the informant to obtain information in several prior investigations.The investigator stated that the informant had never previously provided false information to him, the informant's information had always been accurate, and the informant's information had led to numerous arrests and convictions.

The informant agreed to assist the investigator with the burglary investigation, and made arrangements with Littlejohn to purchase the stolen items.After purchasing the stolen items from Littlejohn, the informant turned the items over to the investigator.The informant also gave the investigator a description of the truck that Littlejohn had been driving.

The investigator requested the informant's additional assistance in locating Littlejohn and the truck.The informant made arrangements to meet Littlejohn at a designated location.The informant notified the investigator of the arrangements, and the investigator traveled to the designated location in accordance with the plan.After observing the truck matching the informant's description, the investigator called local officers for backup assistance.

The investigator observed Littlejohn enter the truck and drive away from the location.The investigator followed Littlejohn and attempted to conduct a stop.When the investigator activated his patrol lights, Littlejohn suddenly accelerated and led the investigator on a high-speed chase.During the course of the chase, Littlejohn's truck collided with another patrol vehicle.Littlejohn was ejected from the truck and attempted to crawl away from the scene.Littlejohn was apprehended, arrested, and charged with the offenses related to the burglary incident.

During the ensuing trial, the State introduced Littlejohn's prior burglary conviction as similar transaction evidence.An investigator testified that Littlejohn had been involved in the burglary of another residence located in the rural area of Monroe County near the county line abutting the city of Macon.In that incident, Littlejohn had gained entry into the residence by breaking through the back door.After stealing several valuable items from the residence, Littlejohn attempted to sell the stolen items to a pawn shop and to his acquaintances.Following his arrest, Littlejohn executed a waiver of his rights and gave the investigator a statement admitting that he had committed that burglary offense.

At the conclusion of the trial in the instant case, the jury returned a verdict finding Littlejohn guilty of the charged offenses.

1.Littlejohn first contends that the trial court erred in denying his Batson challenge since the State used its peremptory strikes in a discriminatory manner.

The record shows that after the jury was selected, trial counsel initially confirmed that the composition of the jury appeared to be correct.The trial court then excused the jury pool.Before the jury was sworn, however, trial counsel announced that he had a Batson motion that he wanted to make on the record.Trial counsel argued the basis for his motion, noting that the State had exercised its strikes as to jurors 3, 8, 67, 69, 70, and 85, all of whom were African–Americans.Trial counsel later acknowledged that the State had a valid basis for striking juror 69 since his occupation as a counselor for inmates may have caused concern for the State.Trial counsel nevertheless insisted that the State's exercise of strikes against the other five jurors was discriminatory.The trial court directed the prosecutor to explain the basis for her strikes.

After the prosecutor gave her explanations, the trial court denied the Batson motion.The trial court ruled that Littlejohn's challenge was untimely since it was not raised until after the jury had been released from the courtroom.The trial court further found that the prosecutor had offered race-neutral explanations for its strikes and that no intentional discrimination had been shown.

Thereafter, the trial proceedings adjourned and resumed two days later.After handling several pretrial matters, the trial court brought the impaneled jury into the courtroom and administered the jury oath.

As an initial matter, we note that the trial court erred in ruling that Littlejohn's Batson challenge was untimely.A Batson challenge is untimely when it is made after the jury has been sworn.SeeLaney v. State,271 Ga. 194, 195(3), 515 S.E.2d 610(1999)(ruling that a Batson challenge should be made before the jury is sworn);Barrow v. State,269 Ga.App. 635, 639(6), 605 S.E.2d 67(2004)(ruling that a Batson challenge made after the jury has been impaneled and sworn is untimely).This Court has previously held that a Batson challenge is timely when made after the jury is selected but before it is sworn.SeeWright v. State,186 Ga.App. 104, 105(1), 366 S.E.2d 420(1988).Since Littlejohn made his Batson challenge before the jury was sworn, it was timely.Id.

The analysis of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3)the court must decide whether the opponent of the strike has proven the proponent's discriminatory intent.

(Citation and punctuation omitted.)Toomer v. State,292 Ga. 49, 52(2)(a), 734 S.E.2d 333(2012).

Since the trial court directed the State to explain its strikes, the preliminary question of whether Littlejohn had established a prima facie case of discrimination is moot.SeeDrane v. State,271 Ga. 849, 851(1), n. 3, 523 S.E.2d 301(1999)(ruling that the preliminary finding as to prima facie discrimination is moot once the proponent gives reasons for its strikes and the trial court makes its findings);Odom v. State,241 Ga.App. 361, 363(2), 526 S.E.2d 646(1999)(holding that because the trial court ruled upon the ultimate question of intentional discrimination, the preliminary issue as to the prima facie case of discrimination was rendered moot).Accordingly, the State's explanations must be examined.SeeOdom,supra, 241 Ga.App. at 363(2), 526 S.E.2d 646.

At step two, the proponent of the strike need only articulate a facially race-neutral reason for the strike.Step two does not demand an explanation that is persuasive, or even plausible.At this second step of the inquiry, the issue is the facial validity of the prosecutor's explanation.Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason...