Mincey v. State

• Decision Date: 01 October 1987
• Docket Number: No. 44820,44820
• Citation: 360 S.E.2d 578,257 Ga. 500
• Parties: MINCEY v. The STATE.
• Court: Georgia Supreme Court

Page 578

360 S.E.2d 578

257 Ga. 500

MINCEY v. The STATE.

No. 44820.

Supreme Court of Georgia.

Oct. 1, 1987.

Michael G. Schiavone, Jackson & Schiavone, Savannah, for Larry mincey.

Spencer Lawton, Jr., Dist. Atty., Savannah, Jeffrey S. Hendrix, J. Clayton Culp, Asst. Dist. Attys., Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Asst. Atty. Gen., for the State.

MARSHALL, Chief Justice.

Larry Mincey appeals from his conviction of the felony murder of Angela Hyatt, for which he was sentenced to life imprisonment. ¹ We affirm.

Mincey was identified by witnesses as the person who was present in the Shop & Go store in Garden City immediately before the clerk-victim was robbed and shot, and who was seen running from the store as the victim was observed lying on the floor behind the counter. No money was found in the cash register thereafter. A professional tracker followed footprints from the store to a fence at Mincey's residence. Police executed a search warrant on Mincey's residence, and recovered, among other things, money bands marked "Trust Company Bank." The store's supervisor testified that the store banked at Trust Company Bank, and that it was customary for money at the store to be banded with the bank's wrappers. Mincey admitted to his cellmate, Samuel Jackson, that he had committed the robbery and the murder. The jury heard evidence about two robberies previously committed by Mincey at the same Shop & Go store and at another convenience store.

1. The appellant contends that he was denied his guaranteed confrontation rights because he was not allowed to cross-examine his former cellmate as to his previous convictions without introducing the records of his convictions in evidence, thereby waiving his right to closing argument.

The trial court allowed him to cross-examine the witness as to any deal which may have been struck between him and the state relative to his convictions and sentences as a result of his testimony in Mincey's case. However, the court properly refused to allow him to elicit testimony, for impeachment purposes, concerning the fact that the witness had been convicted of four armed robberies unless this was accomplished by the introduction of certified copies of the records of those convictions. See Kimbrough v. State, 254 Ga. 504(2), 330 S.E.2d 875 (1985) and cits. This the appellant chose not to do. The cases cited by the appellant are distinguishable in that they involved situations in which the prior convictions could not be introduced, either because the trial court prohibited the party from addressing such convictions or because no certified copies of such convictions existed to be produced. See Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Hines v. State, 249 Ga. 257(2), 290 S.E.2d 911 (1982).

2. Nor did the state "open the door" to such cross-examination by propounding a question to its witness, Samuel Jackson, concerning the fact that the witness was presently incarcerated at the state prison at Reidsville, and establishing that the witness expected to remain there for three or four years. The appellant was free thereafter to follow the proper rules of evidence and impeach the witness by introducing certified copies of the prior convictions, as stated hereinabove. The cases cited by the appellant deal with the defendant's placing his character in issue in order to "open the door" for the state to introduce such evidence, and hence are inapplicable here. See Parker v. State, 256 Ga. 543, 350 S.E.2d 570 (1986); Mason v. State, 180 Ga.App. 235(3), 348 S.E.2d 754 (1986); Phillips v. State, 171 Ga.App. 827(2), 321 S.E.2d 393 (1984).

3. The appellant next contends that his federal constitutional right to a speedy trial was violated. In support of this contention, he argues that he was incarcerated for 26 months between indictment and trial; that he never moved for a continuance or otherwise caused the delay; that the state obtained a continuance because police officers who were witnesses were out of town for seminars; that he was prejudiced because the police destroyed evidence in the case (including the bank money wrappers and the fingerprints lifted at the scene) being held in the police property room; and that he was held for 26 months without bond, citing the dissent of Justice Weltner in Perry v. Mitchell, 253 Ga. 593, 596, 322 S.E.2d 273 (1984).

However, a period of only eight days elapsed between the appellant's assertion of his right to a speedy trial and the trial. Although a period of 21 months elapsed between indictment in this case and trial, he was convicted on other indictments during this period, and was being held under those convictions pending his appeals. See Mincey v. State, 180 Ga.App. 263, 349 S.E.2d 1 (1986); State v. Mincey, 256 Ga. 636, 353 S.E.2d 814 (1987). Hence, the period of holding in this case was not violative of his right to a speedy trial. Nor was actual prejudice shown by the unintentional destruction of the evidence; the state, which had the burden of proof, was thereby prevented from producing this actual physical evidence; the appellant, though unable to examine the property, had a full opportunity to cross-examine Detective White as to the description of the property. Accordingly, the trial court did not err in denying the motion to dismiss the indictment by reason of the alleged pretrial delay.

4. Mincey, a black, next contends that the manner in which the prosecutor exercised his peremptory challenges against blacks gave rise to an inference of discrimination--a prima facie case of purposeful discrimination--that was not successfully rebutted by the prosecutor.

"The proscription laid down in Batson [v. Kentucky, 479 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ] is that a prosecutor may not strike a black juror solely because of his race, nor may he strike on the basis of an assumption which arises 'solely from the jurors' race,' nor may he strike 'to exclude ... veniremen from the petit jury on account of their race.' Id. [106 S.Ct.] at 1723." (Emphasis supplied.) Gamble v. State, 257 Ga. 325(2), 357 S.E.2d 792 (1987).

"[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, Castaneda v. Partida, supra, 430 U.S. , at 494, 97 S.Ct. [1272], at 1280 [51 L.Ed.2d 498 (1977) ], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Avery v. Georgia, supra, 345 U.S. , at 562, 73 S.Ct. , at 892 [97 L.Ed. 1244 (1953) ]. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

"In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." (Emphasis supplied.) Batson, 106 S.Ct., supra at 1723.

"All relevant circumstances" in the case, which Batson holds must be considered, include the facts that the prosecutor used seven of his 10 strikes to remove blacks from the venire; that the state accepted five black jurors prior to exhausting its strikes; that the state utilized five strikes on blacks, three on whites, and the race of two panel members was not noted on the record; and that there were at least three blacks on the jury. ²

In Powell v. State, 182 Ga.App. 123, 124(2), 355 S.E.2d 72 (1987), cert. denied, the Court of Appeals held that the fact that three blacks were on the jury of 12, was not determinative, and that "[t]he question is whether the state exercised any of its strikes for a racially discriminatory reason, for if it did, the rule of Batson was violated." That court held that a number of specified circumstances were sufficient to establish a prima facie case of purposeful discrimination in selection of the petit jury, and the case was remanded to the trial court, as the factfinder, for an evidentiary hearing consistent with Batson.

We do not read Powell to mean that the factfinder cannot consider the fact of the number of blacks on the jury, along with all other "relevant circumstances." Rather, we understand it to mean, when read along with that portion of Batson quoted hereinabove, that that fact alone does not automatically outweigh other relevant circumstances which would raise an inference of unlawful discrimination.

Our interpretation is bolstered by the recent holding in United States v. Dennis, 804 F2d 1208, 1211 (11th Cir.1986), cert. denied, involving similar factual circumstances, that "[i]t is ... obvious that the government did not attempt to exclude all blacks, or as many...