Pickett v. State, A97A0224

• Decision Date: 10 June 1997
• Docket Number: No. A97A0224,A97A0224
• Citation: 226 Ga.App. 743,487 S.E.2d 653
• Parties: , 97 FCDR 2287 PICKETT v. The STATE.
• Court: Georgia Court of Appeals

Page 653

487 S.E.2d 653

226 Ga.App. 743, 97 FCDR 2287

PICKETT v. The STATE.

No. A97A0224.

Court of Appeals of Georgia.

June 10, 1997.

Cynthia A. Price, Atlanta, for appellant.

Lewis R. Slaton, District Attorney, Shawn E. Lagrua, Kirby Clements, Jr., Assistnat District Attorneys, for appellee.

POPE, Presiding Judge.

Lynn Derrick Pickett was convicted by a jury of burglary and simple battery. He appeals his convictions, raising three enumerations of error.

Viewed in a light most favorable to the jury verdict, the evidence shows that at approximately 10:00 p.m. on September 13, 1994, defendant entered the bedroom of Tia Umberger, put a pillow over her head and pushed her down on the bed. Defendant asked Umberger where the money was and who else was at home. At that time, Umberger's guardian, Donna Aldridge, entered the room to investigate the whimpering noises she had heard. When Aldridge noticed defendant in the room, she began screaming for her husband. Defendant yelled at Aldridge to "shut up" and then began punching her in the face. Eventually, defendant escaped through a window, and the two women called the police.

On September 15, 1994, the two women picked defendant out of a photographic lineup. Defendant was one of the workers who had been working at Aldridge's home doing odd jobs and construction work, so Aldridge was sure of her identification. Tia Umberger took a little longer to identify defendant because his hair was different in the photograph she was shown.

Defendant testified that on the day of the incident he had worked at the women's residence doing construction work until about 6:00 p.m., at which time Aldridge's husband drove him home. He further testified that he spent the evening at a club and stayed there until about 1:30 a.m. Defendant denied being at the Aldridge home during the incident.

1. Defendant contends that the trial court erred in ruling that his peremptory strikes of four jurors were not racially neutral and in seating the challenged jurors on the panel. We agree and reverse.

" '(T)he equal protection clause prohibits a criminal defendant from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges.' Chandler v. State, 266 Ga. 509, 510, 467 S.E.2d 562 (1996), citing Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). In order to evaluate whether or not a defendant exercised his peremptory challenges in a racially discriminatory fashion, 'the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.' (Punctuation and footnotes omitted.) Chandler, supra at 510." Gilbert v. State, 226 Ga.App. 230, 486 S.E.2d 48 (1997).

The transcript indicates that the panel from which the jury was struck consisted of twenty-nine people, of whom nine were white males; twelve were white females; four were black males; and four were black females. After using one strike for an alternate, defendant, who is a black male, used eleven of his peremptory strikes to remove eleven white jurors, nine of whom were females. The State then challenged the strikes, contending they were racially and gender motivated in violation of Georgia v. McCollum. The trial court found that the State had established a prima facie case of racial and gender discrimination and asked the defense to set forth their purported race- and gender-neutral reasons for the exercise of their peremptory strikes. Defense counsel provided an explanation for each of the eleven strikes, and the trial court accepted as race-neutral the reasons offered for seven of the jurors. However, the trial court ruled that defendant had failed to offer race-neutral reasons for the remaining four strikes and returned those four jurors to the jury panel.

The reasons defense counsel gave for exercising the strikes which the trial court determined were not race-neutral were: that juror no.2 was a law student and had served as a juror in an assault case which might have addressed similar issues as the case on trial; that juror no.6 was doing home renovations (like the victim in this case) and that she had been the victim of a burglary and had been victimized twice on entering a car; that juror no.16 had served in the Navy, had a military manner and had been the victim of two burglaries; and that juror no.18 looked like the victim and might identify with her and that her father worked for NASA security. The State then argued that other jurors who had been seated on the jury had done home renovations, were going to serve in the military, and had been victims of crime. ¹ At this point, the court determined that the reasons Pickett offered were not race-neutral. " '(A)lthough the proponent of the strike must provide a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges, what is meant by a "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection.' (Citations and punctuation omitted.) Jackson v. State, 265 Ga. 897, 898-899(2), 463 S.E.2d 699 (1995), citing Purkett v. Elem, 514 U.S. 765, 767-69, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995), and Batson v. Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d 69 (1986). '(A race-)neutral explanation means an explanation based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent's explanation, the reason offered will be deemed race neutral.' (Punctuation omitted.) Jackson, supra at 898, citing Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866-67, 114 L.Ed.2d 395 (1991) (majority opinion)." (Footnote omitted.) Gilbert, supra at 231, 486 S.E.2d 48.

The strikes Pickett exercised with respect to juror nos.2, 6 and 16 were not, on their face, racially discriminatory. ² In other words, "[n]one of the rationales proffered by defense counsel was based on a characteristic or stereotype peculiar to any race. [Cit.]" Malone v. State, 225 Ga.App. 315, 317, 484 S.E.2d 6 (1997). Contrary to the trial court's finding, Pickett did offer race-neutral reasons for striking these jurors. See O'Neal v. State, 226 Ga.App. 224, 482 S.E.2d 478 (1997); Leeks v. State, 226 Ga.App. 227, 483 S.E.2d 691 (1997).

Again, as this Court recently stated in Gilbert v. State: "[i]t is not entirely clear from the record whether the trial court combined steps two and three of the procedure set forth in Chandler v. State, supra, or merely terminated the procedure at step two after finding that [Pickett] had not offered race-neutral reasons for his strikes. It is clear from the facts of this case that the court should have found [Pickett's] reasons race-neutral, and then shifted the burden at that point to the State to prove that the [three] strikes were racially motivated. As stated in Chandler, the burden of proving that a peremptory strike was exercised for racial reasons rests with the opponent of the strike, not its proponent, and at...