Powell v. State, 75967

• Decision Date: 14 June 1988
• Docket Number: No. 75967,75967
• Citation: 372 S.E.2d 234,187 Ga.App. 878
• Parties: POWELL v. The STATE.
• Court: Georgia Court of Appeals

Page 234

372 S.E.2d 234

187 Ga.App. 878

POWELL v. The STATE.

No. 75967.

Court of Appeals of Georgia.

June 14, 1988.

Rehearing Denied June 27, 1988.

Rehearing Dismissed July 5, 1988.

Rehearing Denied July 20, 1988.

Certiorari Denied Sept. 8, 1988.

W. Washington Larsen, Jr., Celia Larsen, Dublin, for appellant.

James L. Wiggins, Dist. Atty., Michael T. Solis, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant appealed his 1985 conviction for voluntary manslaughter and, in response to his contention that the State's use of peremptory challenges was discriminatory, this court remanded with direction for an evidentiary hearing in accordance with Batson v. Kentucky, 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 prospective jurors who were black. Three blacks were on the jury ultimately selected for the trial of the case sub judice. Thus, the proportion of blacks on the selected jury (25 percent) was slightly less than the proportion of blacks on the panel (28.57 percent). At the Batson hearing, defendant argued that the State had discriminated against blacks in the jury selection process. The trial court rejected this argument and refused to make a ruling as to whether a prima facie showing of discrimination by the State was present. However, in an abundance of caution, the trial court required the State to give the reasons for its peremptory strikes. After the State complied, defendant requested cross-examination of the State's attorney. This request was denied and defendant offered nothing in rebuttal. Subsequently, the trial court entered an order finding that each of the State's peremptory challenges were "racially neutral." Defendant now appeals, asserting error as to the trial court's rulings at the Batson hearing and reasserting enumerations of error that were previously raised but were not considered by this court. See Powell v. State, 182 Ga.App. 123(4), 355 S.E.2d 72 supra. Held:

1. In his third enumeration of error, defendant contends the trial court erred in "failing to make a determination and finding as to whether [he] had established a prima facie case of purposeful discrimination by the State in jury selection as contemplated by Batson v. Kentucky." We do not agree. Since the trial court proceeded with the second phase of the Batson hearing, requiring the State to give its reasons for its peremptory strikes and ruling on the State's motivation for said strikes, a determination of prima facie discrimination was unnecessary. See Williams v. State, 258 Ga. 80, 81, n. 2, 365 S.E.2d 408.

2. We next consider defendant's contention that the trial court erred in refusing to allow him to cross-examine the State's attorney during the Batson hearing.

In Batson, the United States Supreme Court held that "[o]nce the defendant makes the requisite showing [of discrimination by the State in the jury selection process], the burden shifts to the State to explain adequately the racial exclusion. Alexander v. Louisiana, 405 U.S. at 632, [31 L.Ed.2d 536, 92 S.Ct. 1221]. [Emphasis supplied.]" Batson v. Kentucky, 476 U.S. 79 at 94, 106 S.Ct. 1712, 1721, 90 L.Ed.2d 69, 86. We find no directive in Batson which requires the State's attorney to further explain his conduct to defendant on cross-examination (of the State's attorney), nor do we find such authority in Georgia. In response to defense counsel's argument regarding defendant's constitutional right to confrontation through cross-examination, we observe that the State's attorney was not testifying as a witness against defendant, but was "explaining" his conduct as an officer of the court. Under such circumstances, we find that the trial court did not err in refusing to allow defendant's attorney to cross-examine the State's attorney.

3. Turning now to defendant's contention that the trial court erred in finding that the State's peremptory challenges were "racially neutral," we reject defendant's argument that the explanations given by the State at the Batson hearing were unbelievable because they were inconsistent with the explanations given at trial. After examining the trial transcript and the transcript of the Batson hearing, we find the State merely expanded and clarified its reasons for challenging black members of the venire. See Evans v. State, 183 Ga.App. 436, 439(3), 359 S.E.2d 174. Consequently, " 'giving great deference' ([476 U.S. at 98 n. 21, 106 S.Ct. at 17 n. 21] 90 L.Ed.2d at 89, n. 21) to the trial court's conclusion that the State's peremptory challenges were not purposefully discriminatory, we cannot say that the trial court's finding was clearly erroneous. See United States v. Mathews, 803 F2d 325 (7th Cir.1986)." Evans v. State, 183 Ga.App. 436(3), 359 S.E.2d 174, supra. Compare Gamble v. State, 257 Ga. 325, 326(5), 357 S.E.2d 792. Defendant's first, second and fifth enumerations of error are without merit.

4. Next, defendant challenges the trial court's charge that: "[t]he law infers that a person intends to accomplish the natural and probable consequences of his acts and if a person uses a deadly weapon or instrumentality in the manner in which such weapon or instrumentality is ordinarily used and thereby causes the death of a human being the law infers the intent to kill. These inferences may be rebutted however." Defendant contends that this charge falls within the proscription of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344.

In Hosch v. State, 246 Ga. 417, 419(3), 271 S.E.2d 817, the Supreme Court disapproved the phrase "the law presumes" in the deadly weapon charge; and, more recently, in Williams v. Kemp, 255 Ga. 380, 388, 338 S.E.2d 669 (1986), the Supreme Court found constitutionally infirm a similar charge on intent, notwithstanding the fact that an additional charge that such a presumption is rebuttable was given. ¹ From this perspective, defendant in the case sub judice argues that the trial court's substitution of the term "infers" in lieu of the term "presumes" did not render benign the otherwise unconstitutionally burden-shifting charge. We agree.

To "infer" is "[t]o derive by reasoning or by implication; to conclude from facts or premises; to accept or derive as a consequence, conclusion or probability." Webster's New Intl. Dictionary, (2d ed.), p. 1273, n. 2. The law does not draw "conclusions" as to intent or other factual matters. Factual decisions and conclusions are matters that belong exclusively to the province of the jury. Consequently, in the case sub judice, when the trial court directed the jury to infer an essential element of the crime and that the inference was rebuttable, it unconstitutionally relieved " 'the State of the affirmative burden of persuasion on the [inferred] element by instructing the jury that it must find the [inferred] element unless the defendant [persuaded] the jury not to make such a finding.' [Cit.]" Williams v. Kemp, 255 Ga. 380, 385, 338 S.E.2d 669, supra. Further, we have reviewed the trial court's general instructions as to the State's burden of proof and the defendant's presumption of innocence and we find that they do not erase the error in the challenged portion of the instruction. Nor does the more specific instruction preceding the challenged charge--"A person will not be inferred to act with criminal intent but the jury may find intent, or the absence of intent, from a consideration of the words, demeanor, motive and other circumstances connected with the act for which the defendant is being tried,"--provide a sufficient explanation of the defective instruction. "Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict." Francis v. Franklin, 471 U.S. 307, 322, 105 S.Ct. 1965, 1975, supra.

Accordingly, "[b]ecause a reasonable juror could have understood the challenged portions of the jury instruction in [the case sub judice] as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent, and because the charge read as a whole does not explain or cure the error, we hold that the jury charge does not comport with the requirements of the Due Process Clause." Francis v. Franklin, 471 U.S. 307, 325, 105 S.Ct. 1965, 1977, supra. Compare Catchings v. State, 256 Ga. 241, 248(11), 347 S.E.2d 572; Worth v. State, 179 Ga.App. 207, 209(3), 346 S.E.2d 82, and cites.

Since the challenged jury charge was erroneous, the question remains whether it was also harmless. "The court in Davis v. Kemp, [752 F2d 1515 (11th Cir.1985) ], held that the harmless error doctrine may be applicable to a Sandstrom error, if the court can say 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' 752 F2d at 1521 n. 7 ( quoting Chapman v. California, 386 U.S. 18, 87 SC 824, 17 LE2d 705 (1967)). The Davis court identified two circumstances under which a Sandstrom error could be harmless beyond a reasonable doubt: (1) where the instruction applied to an element of the crime not at issue at the trial or (2) where evidence of guilt was 'overwhelming.' 752 F2d at 1521. In that case, the court found that the error...