McKenzie v. State

• Decision Date: 30 July 1997
• Docket Number: No. A97A1566,A97A1566
• Citation: 227 Ga.App. 778,490 S.E.2d 522
• Parties: , 97 FCDR 2979 McKENZIE v. The STATE.
• Court: Georgia Court of Appeals

Page 522

490 S.E.2d 522

227 Ga.App. 778, 97 FCDR 2979

McKENZIE v. The STATE.

No. A97A1566.

Court of Appeals of Georgia.

July 30, 1997.

Certiorari Denied Feb. 6, 1998.

Drew Findling, Atlanta, Elizabeth L. Rankin, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.

BLACKBURN, Judge.

This is the second appearance of this case before this Court. In McKenzie v. State, 223 Ga.App. 108, 476 S.E.2d 868 (1996), we conditionally affirmed Raleigh McKenzie's convictions of child molestation, incest, rape, and aggravated sexual battery. However, with respect to McKenzie's contention that the trial court erred in upholding the State's challenge to one of McKenzie's peremptory strikes, we remanded such issue to the trial court for entry of written findings on whether such strike was racially motivated. Id. at 114(3)(c), 476 S.E.2d 868. On remand, the trial court entered an order expressly finding that the strike was racially motivated, and McKenzie appeals from this order. For the reasons discussed below, we affirm.

1. Before addressing the merits of this case, it is necessary to discuss the relevant analytical framework and the appropriate standard of review. The United States Supreme Court has established a three-step test for evaluating challenges to peremptory strikes. "[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination." Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770-1771, 131 L.Ed.2d 834, 839 (1995); see also Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (applying Batson to strikes by criminal defendants). The Supreme Court has held that "[t]he second step of this process does not demand an explanation that is persuasive, or even plausible.... Unless a discriminatory intent is inherent in the [proponent's] explanation, the reason offered will be deemed race neutral." (Citation and punctuation omitted; emphasis supplied.) Purkett, supra. See also Gilbert v. State, 226 Ga.App. 230, 486 S.E.2d 48 (1997); Malone v. State, 225 Ga.App. 315, 484 S.E.2d 6 (1997).

However, although a trial judge must accept a facially race-neutral explanation for purposes of determining whether the proponent has satisfied his burden of production at stage two, this does not mean that the judge is bound to believe such explanation at stage three. That is, while the judge may find that a proffered explanation is race-neutral, he is not required, at stage three, to find that the proffered explanation was the actual reason for striking the juror. At stage three, "the persuasiveness of the [proffered] justification becomes relevant[,] ... [and] implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Purkett, supra.

The question thus arises as to what type of evidence is sufficient to enable the trial court to find that the actual reason for exercising the strike was discriminatory. In making its decision, the trial judge is to consider the totality of the circumstances. Turner v. State, 267 Ga. 149, 151, 476 S.E.2d 252 (1996). It will rarely be the case that a party will admit that his purpose in striking a juror was racially discriminatory. Accordingly, the trial court in most cases must infer discriminatory intent from circumstantial evidence. "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons[] will permit the trier of fact to infer the ultimate fact of intentional discrimination, and ... no additional proof of discrimination is required. [Cit.]" (Punctuation and footnote omitted; emphasis in original.) St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407, 418-419 (1993). ¹ In addition, the court may consider whether "similarly-situated members of another race were seated on the jury" or whether "the race-neutral explanation proffered by the strikes' proponent is so implausible or fantastic that it renders the explanation pretextual." Turner, supra at 151, 476 S.E.2d 252. The trial court may also consider "the demeanor of the attorney who exercises the challenge," which is often the best evidence of the credibility of his proffered explanations. Hernandez v. New York, supra at 365.

In determining whether a strike was in fact racially motivated, the trial court sits as the trier of fact, and its findings "are entitled to great deference and will be affirmed unless clearly erroneous." Turner, supra at 151, 476 S.E.2d 252; see also Smith v. State, 264 Ga. 449, 451, 448 S.E.2d 179 (1994). "[W]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." (Punctuation omitted.) Hernandez, supra at 369, 111 S.Ct. at 1871-1872.

2. In this case, the evidence supports the trial court's finding that the proffered reasons for McKenzie's strike were pretextual, and that the strike was actually exercised for a racially discriminatory purpose. McKenzie utilized 11 of his 12 peremptory strikes to eliminate white female jurors. As we recognized in our prior opinion in this case, this "overwhelming use of peremptory strikes to exclude jurors of one race establishes a prima facie showing of discrimination." (Punctuation omitted.) McKenzie, supra at 114(3)(b), 476 S.E.2d 868.

When asked to explain her reasons for striking the juror at issue, McKenzie's attorney gave a hodgepodge of reasons, stating that "[s]he had two daughters, 28-year-old--well, she had a 28-year-old daughter, she had no grandchildren, she had a brother-in-law who had been arrested for drugs.... She indicated she was a party to lawsuit regarding money. She had a 28-year-old daughter.... I think the impetus there was ... that she had a daughter." However, in the motion for new trial hearing, the trial attorney testified that "I felt that I didn't have a legitimate reason for excluding her." She testified that, when asked to justify her strike, "I didn't have what I would deem a legitimate reason to be able to express to the court as to why I had not--I didn't want her on the jury.... It was just a guttural reaction, that I felt she would not be beneficial, but I didn't have a legitimate reason as to any of the questions that she may have answered.... I didn't feel my guttural reaction was a legitimate reason to exclude her and I did not have any other legitimate reasons to call to mind to be able to tell Judge Hunter."

Thus, not only was the trial court authorized to disbelieve McKenzie's proffered explanations for the strike, but McKenzie's attorney actually admitted that her proffered reasons were false. After admitting that her original explanations were not genuine, the attorney failed to identify any specific reason for striking the juror, although she denied any discriminatory intent. However, a proponent may not rebut the opponent's case "merely by denying that [she] had...