McGlohon v. State

• Decision Date: 03 October 1997
• Docket Number: No. A97A0924,A97A0924
• Parties: McGLOHON v. The STATE.
• Court: Georgia Court of Appeals

Page 715

492 S.E.2d 715

228 Ga.App. 726

McGLOHON v. The STATE.

No. A97A0924.

Court of Appeals of Georgia.

Oct. 3, 1997.

Zipperer & Lorberbaum, Alex L. Zipperer, Eric R. Gotwalt, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.

BIRDSONG, Presiding Judge.

Joel M. McGlohon appeals his convictions of aggravated assault and aggravated battery. He contends the trial court erred by setting aside two of his peremptory jury strikes and reseating two jurors previously challenged, and by failing to charge on the lesser included offense of battery in violation of OCGA § 16-5-23.1. McGlohon also contends his trial defense counsel was ineffective for failing to request a charge on this lesser included offense.

McGlohon, covered in blood, was apprehended by police who were responding to cries for help from a woman who had been physically attacked. Both McGlohon and the woman testified that they had been engaged in an extramarital affair and that one of them decided to break it off. The woman testified that it was her decision, but McGlohon testified that it was his. In any event, the woman testified that as she walked McGlohon to his car, he suddenly attacked her, stabbing her with a knife and hitting her. She testified that after she was knocked to the ground, McGlohon continued his attack by hitting her in the face while she was still on the ground. Medical personnel testified that she received serious injuries to her face and that she continues to suffer nerve damage. Held:

1. The transcript shows that after McGlohon exercised his peremptory challenges, the State invoked State v. Mayweather, 262 Ga. 727, 425 S.E.2d 659 to challenge McGlohon's challenge of several potential women jurors, and after considering McGlohon's explanation, the trial court overruled the challenges as to two jurors. McGlohon alleges that the trial court erred by disallowing these peremptory challenges.

"In J.E.B. v. Alabama, 511 U.S. , 143-146, 114 S.Ct. 1419, 1429-1430, 128 L.Ed.2d 89 (1994), the United States Supreme Court advanced its holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to prevent litigants from exercising peremptory jury strikes based upon gender. The Equal Protection Clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender as well as race. See Tedder v. State, 265 Ga. 900, 901(2), 463 S.E.2d 697 (1995); Jackson v. State, 220 Ga.App. 98, 469 S.E.2d 264 (1996)." Herrin v. State, 221 Ga.App. 356, 357, 471 S.E.2d 297. The same standards used for reviewing claims of race discrimination are used for gender discrimination claims. Id. Batson requires a three-step process for evaluating these claims: After a prima facie showing that the challenges were used on the basis of gender, the party exercising the challenge must then articulate a gender neutral explanation for the challenge, and then the trial court must determine whether the party alleging the discrimination proved purposeful discrimination. Kelly v. State, 209 Ga.App. 789, 790(1), 434 S.E.2d 743. In this case, McGlohon used all of his 13 strikes against female potential jurors. Therefore, the trial court properly required his counsel to explain the basis for his strikes.

In responding, McGlohon's burden was to show that his peremptory strikes were gender neutral, related to the case to be tried, and clear and reasonably specific. See Berry v. State, 263 Ga. 493, 494, 435 S.E.2d 433. Further a defendant may strike "from mistake, or from ignorance, or from idiosyncrasy" (Gamble v. State, 257 Ga. 325, 326(2), 357 S.E.2d 792), and he may strike for all sorts of consequential or inconsequential reasons, but he may not strike on the basis of gender. When the proponent of the strike offers a purported gender-neutral explanation, there is no requirement "to enunciate 'an explanation that is persuasive, or even plausible.' " Jackson v. State, 265 Ga. 897, 898, 463 S.E.2d 699. A neutral explanation is one based on something other than the gender of the juror, and if discriminatory intent is not inherent in the explanation, the reason offered will be deemed gender neutral. Id. At the final stage of a Batson inquiry, the ultimate burden of persuasion regarding motivation rests with, and never shifts from, the opponent of the strike. Id. at 899, 463 S.E.2d 699. At the final stage, " 'implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.' " Id.

In this case, McGlohon's counsel explained his challenge of one of the jurors, "one reason, because they had no children. I know that's a reason. Another reason is because they just moved down here, they hadn't been down here too long.... I thought she was too old. I didn't like her being 70 years old." In regard to the other juror he stated, "I struck her, Mrs. Gross, because of the age difference between she [sic] and her husband. And she also has somebody in journalism and I don't particularly hanker for it. And she also works for Advantage Health Care over at Candler Hospital and she had some knowledge of nursing that we voir dired on."

A disparity in the ages of the prospective juror and the appellant can be a gender-neutral explanation which was related to the case being tried since the potential juror might consciously or unconsciously identify with the party/victim closer in age to the juror's own age. Strozier v. Clark, 206 Ga.App. 85, 87, 424 S.E.2d 368; Bess v. State, 187 Ga.App. 185, 186-187, 369 S.E.2d 784. Age, however, was only one of the reasons offered for this strike. McGlohon also asserted that he struck this woman because she just moved to the area when the record showed that she had lived in the area for 17 years, and McGlohon retained male jurors who had lived in the area for less time. In regard to the other strike that was reversed, McGlohon stated that he based his strike, in part, because she had a knowledge of nursing, but the record shows that McGlohon also retained a male juror who also had such knowledge. Here considering the number of McGlohon's strikes against women, the fact that McGlohon proffered a "laundry list" of reasons for almost every strike, only some of which were facially neutral, and the indication that counsel was engaging in post hoc rationalization, the trial court's decision was well supported by the record.

As a trial court's findings on a Batson issue are entitled to great deference and will be affirmed unless clearly erroneous (Higginbotham v. State, 207 Ga.App. 424, 426, 428 S.E.2d 592), we must affirm the trial court.

2. McGlohon also contends the trial court erred by refusing to charge on the lesser included offense of battery (OCGA § 16-5-23.1) on Counts 2 and 3. As the record shows that McGlohon did not request such a charge, we start from the proposition that "[a] trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge." Mosley v. State, 257 Ga. 382, 383(2), 359 S.E.2d 653. "It is not reversible error for the trial court to fail to give a request to charge that is not submitted in writing by the complaining party. Bullock v. State, 202 Ga.App. 65, 413 S.E.2d 219 (1991)." American Assn. of Cab Cos. v. Egeh, 205 Ga.App. 228, 231(5), 421 S.E.2d 741. Therefore, there was no error in failing to give these charges.

3. McGlohon also alleges that his defense counsel was ineffective because he did not request charges on the lesser included offense of battery on counts 2 and 3. "It is a well established rule that any allegation of a violation of the right to counsel should be made at the earliest practicable moment. See Smith v. State, 255 Ga. 654, 341 S.E.2d 5 (1986). Because an attorney cannot reasonably be expected to assert or argue his or her own ineffectiveness, claims of ineffective assistance of counsel are often properly raised for the first time in a habeas corpus petition. However, in Thompson v. State, 257 Ga. 386, 359 S.E.2d 664 (1987), we held that where new counsel appointed or retained after the trial amends the motion for new trial without raising the issue of ineffective assistance, the claim was waived. In Johnson v. State, 259 Ga. 428, 383 S.E.2d 115 (1989), we held that the claim may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel. The rule is consistent: New counsel must raise the ineffectiveness of previous counsel at the first possible stage of post-conviction review." White v. Kelso, 261 Ga. 32, 401 S.E.2d 733. As this record shows that McGlohon's appellate counsel were not appointed when there was an opportunity to raise this issue in the trial court, the case must be remanded to the trial court for consideration of this issue.

Judgment affirmed in part and remanded.

RUFFIN, J., concurs.

ELDRIDGE, J., concurs specially.

ELDRIDGE, Judge, concurring specially.

I concur in the majority's judgment. I write to clarify the standard of review with regard to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in Division 1. Much has been written regarding Batson and Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), analysis since 1995 when the Supreme Court of Georgia authored Jackson v. State, 265 Ga. 897, 463 S.E.2d 699 (1995), the case upon which the majority relies in its analysis of a trial court's step three inquiry into the proffered explanations for the use of peremptory strikes.

Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), which Jackson discussed in detail, has come to be seen in relation to its purpose, which was an explanation of appellate court procedure when reviewing Batson/McCollum challenges on appeal; Purkett was not a directive for the trial court in its handling of a Batson/McCollum step three inquiry at the trial...