Turner v. State

• Decision Date: 07 October 1996
• Docket Number: No. S96A0693,S96A0693
• Citation: 267 Ga. 149,476 S.E.2d 252
• Parties: TURNER v. The STATE.
• Court: Georgia Supreme Court

Page 252

476 S.E.2d 252

267 Ga. 149

TURNER v. The STATE.

No. S96A0693.

Supreme Court of Georgia.

Oct. 7, 1996.

Boyd English, Douglas, for Demetrius Turner.

Richard Ernest Currie, District Attorney, Waycross, Michael J. Bowers, Attorney General, Allison Beth Goldberg, Assistant Attorney General, Department of Law, Atlanta, for State.

BENHAM, Chief Justice.

Demetrius Turner and three others were charged with the murder of a convenience store clerk. Appellant was tried separately and was convicted of malice murder, armed robbery, and possession of a firearm during the commission of a felony in connection with the homicide. The jury also returned guilty verdicts against appellant on aggravated assault and escape charges. ¹

The State presented evidence that the victim was shot in the heart with a .25 caliber semiautomatic pistol which authorities found, at appellant's direction, under an abandoned trailer behind the mobile home of one of appellant's co-indictees. The convenience store's cash register drawer was found open and the currency missing. Appellant told officers he pointed the gun at the victim and told her to back away from the register, and the gun fired when the victim slapped at it. A firearms expert from the Georgia State Crime Laboratory testified that the gun would not fire unless both safety devices were disengaged and 10.5 pounds of pressure were applied to the trigger. Appellant also told officers he had worn a mask and a baseball cap, both of which were found with the weapon.

Concerning the aggravated assault and escape charges, a Coffee County jailer testified that he entered the jail cell holding appellant and one of his co-indictees to investigate a plumbing malfunction, and the co-indictee tried to leave the cell. The jailer was rendered unconscious when he was struck several times by someone in the cell as the jailer attempted to keep the co-indictee from leaving the cell. Appellant, his cellmate, and their two other co-indictees fled the jail, but were re-captured within 48 hours.

1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In selecting the jury to try this case, the State used seven peremptory challenges to strike black venirepersons. Citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), appellant asserted that the State improperly used its peremptory strikes to remove black venirepersons in violation of his Fourteenth Amendment right to equal protection of the laws. The trial court found that a prima facie showing of racial discrimination had been made, and required the State to give racially neutral reasons for the exercise of its peremptory challenges. After hearing from the State, the trial court concluded that the district attorney had articulated acceptable nonracial reasons for the exercise of each challenged peremptory strike. On appeal, appellant takes issue with the trial court's ruling as to one of the dismissed venirepersons.

The Equal Protection Clause of the U.S. Constitution prohibits discrimination in jury selection on the basis of race or gender, or the assumption that a venireperson will be biased in a particular case for no reason other than the person's race or gender. Tedder v. State, 265 Ga. 900(2), 463 S.E.2d 697 (1995). Thus, the ultimate issue in a Batson challenge is whether discrimination occurred in the selection of the jury. Batson v. Kentucky, supra, 476 U.S. at 95, 106 S.Ct. at 1722. The opponent of the peremptory strike bears the burden of persuading the trial court that the proponent of the strike acted with discriminatory intent in exercising the peremptory challenge. Id., 476 U.S. at 98, 106 S.Ct. at 1723-24. The party challenging the peremptory strike makes out a prima facie case of purposeful discrimination "by showing that 'the totality of the relevant facts gives rise to an inference of discriminatory purpose.' Batson v. Kentucky, 476 U.S. 79, 94 [106 S.Ct. 1712, 1721, 90 L.Ed.2d 69]...." Whatley v. State, 266 Ga. 568(3), 468 S.E.2d 751 (1996). Once a prima facie case is made, the proponent of the strike is required to set forth a race-neutral, case-related, clear and reasonably specific explanation for the exercise of the peremptory strike. Greene v. State, 266 Ga. 439(5), 469 S.E.2d 129 (1996); Tedder v. State, supra, 265 Ga. at 901, 463 S.E.2d 697. See also Batson v. Kentucky, supra, 476 U.S. at 97, 106 S.Ct. at 1723; Jackson v. State, 265 Ga. 897(2), 463 S.E.2d 699 (1995). An explanation is not racially neutral if it is based on "a characteristic that is peculiar to any race" (Purkett v. Elem, 514 U.S. 765, ----, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995); Jackson v. State, supra, 265 Ga. at 899, 463 S.E.2d 699) or a stereotypical belief. Congdon v. State, 262 Ga. 683, 685, 424 S.E.2d 630 (1993). It is then for the trial court to determine, after considering the totality of the circumstances, whether the opponent of the strike has shown that the proponent of the strike was motivated by discriminatory intent in the exercise of the peremptory challenge. Batson v. Kentucky, supra, 476 U.S. at 98, 106 S.Ct. at 1723-24; Dixon v. State, 673 A.2d 1220 (Del.1996). The opponent of the strike may carry its burden of persuasion by showing that similarly-situated members of another race were seated on the jury. See e.g., Ford v. State, 262 Ga. 558(3), 423 S.E.2d 245 (1992). A trial court may also determine that improper discriminatory motive underlay the exercise of a peremptory challenge when the race-neutral explanation proffered by the strikes' proponent is so implausible or fantastic that it renders the explanation pretextual. Purkett v. Elem, supra, 514 U.S. at ----, 115 S.Ct. at 1771; State v. Adams, --- S.C. ----, 470 S.E.2d 366, 372 (1996); State v. Bryant, 104 Ohio App.3d 512, 662 N.E.2d 846, 850 n. 1 (1995). The trial court's findings concerning whether the opponent of the strike has carried the burden of persuasion are entitled to great deference and will be affirmed unless clearly erroneous. Gamble v. State, 257 Ga. 325(5), 357 S.E.2d 792 (1987). However, the appellate courts will not act as a rubber stamp by accepting all purportedly non-racial explanations without exception. Id. In explaining why it had struck the potential juror at issue in the case at bar, the State set forth three reasons: the venireman had filed bankruptcy proceedings, indicating an inability to handle financial matters; he had fathered an illegitimate child who had been raised by the child's mother, possibly making the venireman more sympathetic to appellant who had been raised by his mother without the presence of his father in the home; and the venireman was from Lenox, Georgia, and had acknowledged he was friendly with men the district attorney knew were serving time in federal prison on drug-trafficking convictions, as well as with men who frequently had been prosecuted for drug-related offenses.

Each of the three rationales proffered by the State is racially neutral since it is not based on a characteristic or stereotype peculiar to any race. Jackson v. State, supra, 265 Ga. at 899, 463 S.E.2d 699; Congdon v. State, 262 Ga. at 685, 424 S.E.2d 630. Appellant contends the trial court erred in its determination that the peremptory challenge was not based on racial animus ² since there was no showing that one of the rationales for the strike (the venireman's inability to handle finances) was related to the case at bar; that the second rationale (the venireman who had fathered an illegitimate child who was raised without the venireman's presence in the household might be sympathetic at sentencing to the plight of appellant who was raised in a fatherless household by his mother) was based on a stereotypical belief that black fathers of illegitimate children lack commitment to family and society; and that the third rationale did not result in the removal of a white juror from Lenox. Appellant also asserts that the State failed to substantiate through its voir dire of the removed venireman the factual basis for its race-neutral reasons for removing him from the jury--whether the venireman's bankruptcy was personal or business-related; whether the venireman's child was illegitimate; the actual relationship the venireman had with the drug convicts and arrestees.

We must keep in mind that the reasonable suspicion of a juror's impartiality that prompts the exercise of a peremptory challenge need not rise to the level of justifying the removal of a venireman for cause. Henry v. State, 265 Ga. 732(2), 462 S.E.2d 737 (1995). We must also keep in mind that the State's multiple rationales for the exercise of its strike were facially race-neutral and were supported by facts elicited during voir dire--the record reflects that appellant had initiated bankruptcy proceedings, had fathered a child out of wedlock who was raised by the child's mother; did live within the city limits of Lenox; and was friendly with persons the district attorney knew to have been the subjects of criminal proceedings. Appellant, as the opponent of the exercise of the peremptory challenge, had the burden of showing the existence of discriminatory intent (Batson v. Kentucky, supra, 476 U.S. at 98, 106 S.Ct. at 1723-24), and appellant has not shown the existence of a stereotype concerning familial responsibility, much less that such a stereotypical belief was the force behind the prosecutor's peremptory challenge. Nor has appellant shown that there was a similarly-situated juror whose race was different from that of the venireman at issue who was not struck. Instead, appellant finds discriminatory intent in the prosecutor's failure to ask the other juror from Lenox about friendship with the drug offenders and arrestees. Appellant's assertion places the burden on the...