Powell v. State, 73240
| Decision Date | 23 February 1987 |
| Docket Number | No. 73240,73240 |
| Citation | 355 S.E.2d 72,182 Ga.App. 123 |
| Parties | POWELL v. The STATE. |
| Court | Georgia Court of Appeals |
William W. Larsen, Jr., Dublin, for appellant.
James L. Wiggins, Dist. Atty., James E. Turk, Asst. Dist. Atty., for appellee.
Appellant was indicted for murder (OCGA § 16-5-1) and was convicted by a jury of voluntary manslaughter (OCGA § 16-5-2). Mr. Powell is black and the victim was white. He defended on the theory of self-defense, urging that he was justified in shooting at Mr. Thigpen because Thigpen taunted him with racial epithets, threatened to physically harm him, acted so as to do so, and then reached in a truck as though to get a gun. Powell denied an intention to kill and stated that instead, he intended simply to stop Thigpen from harming or killing him. The incident occurred at a boat landing along the river to which Powell and a white friend had gone after work. Thigpen and several other white men were there.
After the selection of the jury but before it was sworn, Powell moved both orally and in writing for a mistrial, for discharge of the jurors, and for a new jury selected without the state's allegedly racially discriminatory exercise of its peremptory strikes. He relied upon the federal constitution's Fourteenth Amendment due process and equal protection clauses, the Sixth Amendment's impartial jury guarantee, and the state constitution's due process, equal protection, and impartial jury provisions. (Ga. Const.1983, Art. I, Sec. I, Pars. I, II, and XI(a)).
He cited Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), then pending for decision in the United States Supreme Court. 1 In addition, he cited other states' cases construing and applying the federal constitution and sought to distinguish Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). He did not pursue the state constitutional claim there or here, and thus it is not involved. See State v. Camp, 175 Ga.App. 591, 593(1), 333 S.E.2d 896 (1985). On appeal he stands solely on the decision in Batson with respect to the first enumerations of error.
1. Appellant's challenge must be addressed because it was adequately although not properly raised, Mincey v. State, 180 Ga.App. 263, 349 S.E.2d 1 (1986), cf. Ford v. State, 180 Ga.App. 807(2), 350 S.E.2d 816 (1986), and is not foreclosed by the doctrine of retroactivity. Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986).
2. Even though there is some evidence of a neutral basis for some of the state's peremptory strikes against blacks so as to support its explanation, we must remand the case for an evidentiary hearing and trial decision, as was done in Mincey, supra; Sparks v. State, 180 Ga.App. 467, 349 S.E.2d 504 (1986); and Wise v. State, 179 Ga.App. 115, 346 S.E.2d 393 (1986). One of the reasons is that the determination ordinarily must be made in the first instance by the trial court, which is much more aware than we are of the circumstances and the significance of factors bearing on the subtle issue of neutrality; it is properly the factfinder. Batson, supra.
Another reason is that this is not a case where the issue may be decided as a matter of law one way or the other on the basis of what is in the record. Of the 42 veniremen 30 were white and 12 were black. The state's exercise of its 10 peremptory challenges resulted in 9 blacks and 1 white woman being excused. The woman's husband's criminal case was set for trial during the same week, and in addition, the husband had defendant's attorney representing him at one time. These circumstances raised the inference which required further inquiry.
Three blacks were on the jury of 12, but this is not determinative. The 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. Although the state explained at trial that 6 of the 9 were friends of defendants, another was the wife of one of the friends, and another was a distant relative, the record shows only that 3 of the 9 blacks were friends. It is silent as to any such...
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Stanley v. State
...case in which there was a similar use of a highly "skewed number" of peremptory challenges to black jurors. Also see Powell v. State, 182 Ga.App. 123, 355 S.E.2d 72 (1987), where the State exercised nine of its 10 peremptory challenges to excuse nine of the 12 black veniremen. Three blacks ......
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Mincey v. State
...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......
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Powell v. State, 75967
...476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. (For this court's previous holding and statement of pertinent facts, see Powell v. State, 182 Ga.App. 123, 355 S.E.2d 72.) Evidence at the Batson hearing showed that the State used 9 of its 10 peremptory challenges to strike 9 of the 12 prospectiv......
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...asked by both sides." Appellant enumerates as error the denial of his Batson motion. We note at the outset that Powell v. State, 182 Ga.App. 123(2), 355 S.E.2d 72 (1987) is not authority for this court to order the remand of this case to the trial court for a hearing on the issue of whether......