Tyre v. State

• Decision Date: 15 July 2013
• Docket Number: No. A13A0652.,A13A0652.
• Citation: 323 Ga.App. 37,747 S.E.2d 106
• Parties: TYRE v. The STATE.
• Court: Georgia Court of Appeals

323 Ga.App. 37

747 S.E.2d 106

TYRE

v.The STATE.

No. A13A0652.

Court of Appeals of Georgia.

July 15, 2013.

Jennifer Adair Trieshmann, for Appellant.

Paul L. Howard Jr., Peggy Ann Katz, for Appellee.

RAY, Judge.

After a jury trial, Arthur Tyre was convicted of rape, aggravated assault with intent to rape, armed robbery, and possession of a knife during the commission of a felony.¹ He appeals from the denial of his motion for new trial, asserting the following enumerations: that the trial court erred in (1) denying his Batson motion; (2) overruling his challenge to the array; (3) admitting similar transaction testimony; and (4) denying his motions to suppress. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence adduced at trial shows that the victim in this case ² went with a friend on April 30, 2008, to Club Wax in Fulton County because they were seeking work as dancers there. The victim had worked as a prostitute in the past. While she was in the parking lot of Club Wax, Tyre pulled up to her in a silver Dodge Durango with custom rims and televisions in the back, and they agreed that Tyre would pay the victim $50 to engage in oral sex and sexual intercourse with him.

The victim got into Tyre's vehicle, and when she asked where he was driving, Tyre revealed a large kitchen knife with gray tape around it and told her to “shut up.” Tyre then drove to the parking lot of a warehouse. After parking, Tyre took the victim's cell phones and instructed her to climb into the backseat of the vehicle and to remove her pants. Tyre then placed handcuffs on the victim, held a knife to her while she performed oral sex upon him, and then had intercourse with her. The victim testified that she did not consent to engage in intercourse. Tyre then exited the car, used a paper towel to cover his license plate, instructed the victim to get out of the car, and left without paying her. Still handcuffed, the victim ran to a nearby Waffle House where she called her friend, and they drove to Grady Memorial Hospital. A rape kit was performed at the hospital. Later, the victim identified Tyre from a photographic lineup. After the victim identified Tyre, police obtained a warrant for his arrest.

On May 4, 2008, the victim flagged down a police officer when she saw Tyre and his Dodge Durango at a gas station on Fulton Industrial Boulevard, near Club Wax. Tyre was arrested, and his car was impounded. On May 5, 2008, police obtained a warrant to search the vehicle, which revealed that the car had inside several “flip-type television[s],” condom wrappers, and a roll of paper towels. A large knife and a pair of handcuffs were found hidden inside the air conditioner registers.

K.L.³ testified at trial as a similar transaction witness. K.L. testified that on February 8, 2008, a few months before Tyre assaulted the victim, that K.L. was on her way home from work when a silver Dodge Durango pulled up alongside her; the driver, Tyre, asked if she could give him directions to Club Wax. K.L. was giving directions to Tyre when she noticed him pointing a small pistol at her. Tyre then instructed her to get into the back seat of the vehicle. Tyre handcuffed K.L., placed duct tape over her mouth, placed a black shirt over her head, and strapped her in with the seat belt. Tyre then began driving the Durango, and while traveling she heard him call someone on his cell phone and ask “have your mom left yet? ... I got one.... I got somebody.” After the vehicle stopped at a house, Tyre searched her purse, drove to a nearby ATM, withdrew $500 from her account, and threatened to shoot her. Once they returned to the house, Tyre and another man had oral sex and sexual intercourse with her against her will. Tyre then dropped her off at a Dairy Queen. K.L. called the police and went to Grady Memorial Hospital, where a rape kit was performed.

Approximately eight days later, KL saw the silver Dodge Durango at a Shell Station on Fulton Industrial Boulevard, memorized the tag number, and called the police. After detectives obtained a warrant for Tyre's arrest, a BOLO was put out on his car. On March 3, 2008, an officer stopped Tyre's car pursuant to an outstanding arrest warrant, removed Tyre from the car, and placed him under arrest in the back of his patrol car. The Dodge Durango was impounded, and an inventory search was conducted which revealed an airsoft pistol and handcuffs under the rear passenger seat, and a roll of gray duct tape.

Tyre testified at trial that the sexual acts he performed with the victim and K.L. were consensual commercial transactions and that the victim became angry when he would not pay more than the agreed upon price. He admitted that he took money from K.L.

Viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Tyre guilty beyond a reasonable doubt of rape, aggravated assault with intent to rape, armed robbery, kidnapping and possession of a knife during the commission of a crime. See Jackson, supra. See also OCGA §§ 16–6–1 (rape), 16–5–21 (aggravated assault with intent to rape) 16–8–41 (armed robbery), and 16–11–106 (possession of a knife during the commission of a felony). Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (“It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.”) (Citation and punctuation omitted).

1. Tyre first contends that the trial court erred in finding that the prosecution did not violate Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) when it used four peremptory strikes to remove black jurors and by denying his motion for new trial based on the Batson challenge. For the reasons that follow, we affirm.

A trial court

employ[s] a three-step analysis in addressing a defendant's Batson challenge. First, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. Then, the burden shifts to the proponent of the strike to provide a race-neutral reason for the strike. The trial court then decides whether the opponent of the strike has proven discriminatory intent.

(Footnotes and punctuation omitted.) Cowan v. State, 279 Ga.App. 532, 534(2), 631 S.E.2d 760 (2006). Unless the trial court's decision was clearly erroneous, we shall not disturb the trial court's ruling. See Id.

The record reveals that Tyre is a black male, and that out of sixty potential jurors, sixteen were black. The State used a total of seven of its nine allotted peremptory strikes, and four of those seven were used against a black person.

Even assuming this indicates a prima facie case of purposeful discrimination, the record in this case supports the trial court's finding that the reasons offered for the State's strikes were race-neutral and not pretextual. See Hernandez v. New York, 500 U.S. 352, 360(II)(B), 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion) (“Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.”) In one instance, a prospective black juror was struck after she testified that her nephew had been convicted of murder. “Prior convictions or arrest histories of a family members are a sufficiently race neutral reason to exercise a peremptory strike.” (Citation omitted.) Henry v. State, 265 Ga. 732, 734(2), 462 S.E.2d 737 (1995). Another prospective black juror was struck after he testified that he had previous bad experiences with law enforcement and that he believed that minorities were treated unfairly by the criminal justice system. Yet another prospective juror was struck after he testified that both he and his brother had been treated unfairly by police and the criminal justice system. This Court has held that a sufficiently neutral reason to justify a peremptory strike is available when a prospective juror has had a prior negative experience with law enforcement, or indicates that the juror may distrust the police. See Crowder v. State, 268 Ga. 517, 519(4), 491 S.E.2d 323 (1997); Dennis v. State, 238 Ga.App. 343, 346(5)(a), 518 S.E.2d 745 (1999). The final peremptory strike was used against a prospective black juror who testified that she had a friend who had been charged with murder and another who had been a victim of sexual assault. The State explained that it struck this prospective juror based upon these acquaintances and because her bag had the phrase “Jesus is the final answer” written on it, which indicated that she could be inclined to avoid judging others. Our Supreme Court has held that a strong religious point of view is a valid race-neutral reason for striking a juror. See Berry v. State, 268 Ga. 437, 439(2), 490 S.E.2d 389 (1997).

Because the State offered racially-neutral reasons for its strikes and Tyre failed to establish that the reasons given were pretexts for racial discrimination, we conclude that the trial court was authorized to find there was no Batson violation.

2. Tyre next argues that the trial court erred in denying his challenge to the array of the jury panels. He argues that there was a disparity between the percentage of black persons in the array sent to the courtroom for voir dire purposes and the percentage of black persons in the community. Finding no error, we affirm.

First, we note that “it is the pool of jurors from which the jury sent to be voir dired is drawn that must be representative of the community, not the individual panel sent to a courtroom for voir dire purposes.” Prine v. State, 237 Ga.App. 679, 680(1), 515 S.E.2d 425 (1999). “[T]he jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representativethereof.” (Citations and...