McCormick v. State, 74379

• Decision Date: 02 November 1987
• Docket Number: No. 74379,74379
• Citation: 362 S.E.2d 472,184 Ga.App. 687
• Parties: McCORMICK v. The STATE.
• Court: Georgia Court of Appeals

Page 472

362 S.E.2d 472

184 Ga.App. 687

McCORMICK v. The STATE.

No. 74379.

Court of Appeals of Georgia.

Nov. 2, 1987.

Alan P. Layne, Lyons, for appellant.

Richard A. Malone, Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Following a jury trial, defendant was convicted of the offenses of rape and burglary. In his sole enumeration of error, defendant contends the trial court erred in permitting the State to use its peremptory strikes in a discriminatory manner in contravention of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.

In Batson v. Kentucky, supra, the Supreme Court held that "the State's privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause," and that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Batson v. Kentucky, 476 U.S. 79 at 89, 106 S.Ct. 1712 at 1719, 90 L.Ed.2d 69, supra at 82-83.

Under Batson v. Kentucky, supra, the burden of making a prima facie case of purposeful discrimination is on the defendant initially. To make this showing, the defendant need not show a pattern of discriminatory use of peremptory challenges. "[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87. In addition to these facts, the defendant can show other relevant circumstances which raise an inference that the prosecutor used peremptory strikes to exclude blacks from the petit jury in a purposefully discriminatory manner. Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88.

If it is determined that the defendant made a prima facie showing, "the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." Id. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. In this regard, "the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause ... But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption--or his intuitive judgment--that they would be partial to the defendant because of their shared race." Id. The prosecutor may not rebut defendant's showing by simply denying that he exercised peremptory challenges in a discriminatory manner. He must "articulate a neutral explanation related to the particular case to be tried." Id.

The duty of deciding whether the defendant established intentional discrimination lies in the trial court. Id. A trial court's finding of purposeful discrimination is a finding of fact which must be given deference by an appellate court. Ordinarily, great deference should be given to such a finding since it "largely will turn on evaluation of credibility." Batson v. Kentucky, 476 U.S. 79, at 98, fn. 21, 106 S.Ct. 1712, at 1724, fn. 21, 90 L.Ed.2d 69, supra at 89, fn. 21. "Thus, we may only reverse the trial judge's determination that the prosecution's peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous. United States v. Tucker, 773 F.2d 136, 142 (7th Cir.1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3338, 92 L.Ed.2d 742 (1986)." United States v. Mathews, 803 F.2d 325, 330 (7th Cir.1986).

Keeping in mind the tenets enunciated in Batson v. Kentucky, supra, we turn to the case sub judice. The record shows that following voir dire and the selection of the jury (but before the jurors were sworn) defendant moved for a mistrial on the ground that the State employed its strikes in a purposefully discriminatory manner. ¹ In support of his motion, defendant pointed out that he is black and that the prosecutor used all ten peremptory challenges to remove blacks from the venire. Responding to defendant's motion, the trial court made a thorough inquiry concerning the State's use of its peremptory strikes. The prosecutor then explained the reason behind each of his strikes. He stated that with one exception, he used his peremptory challenges to strike blacks who knew defendant. He pointed out that two blacks did not know defendant and that they were selected to serve on the petit jury. He added that he did not strike whites who knew defendant because he expected def...