Wilburn v. State

• Decision Date: 17 February 1998
• Docket Number: No. A97A2587,A97A2587
• Parties: , 98 FCDR 864 WILBURN v. The STATE.
• Court: Georgia Court of Appeals

Page 380

497 S.E.2d 380

230 Ga.App. 619, 98 FCDR 864

WILBURN v. The STATE.

No. A97A2587.

Court of Appeals of Georgia.

Feb. 17, 1998.

Certiorari Denied June 5, 1998.

Robert S. Devins, Atlanta, for appellant.

Thomas J. Charron, District Attorney, Ann B. Harris, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

RUFFIN, Judge.

A jury found Freddie Lee Wilburn guilty of selling cocaine in violation of the Georgia Controlled Substances Act. Wilburn appeals, contending that the trial court erred in denying his motion to suppress evidence and seating jurors he attempted to strike. For reasons which follow, we affirm.

1. Wilburn asserts that the trial court erred in denying his motion to suppress evidence that he possessed marijuana when he was arrested. We disagree. In our review of the trial court's order denying Wilburn's motion to suppress, we construe the evidence most favorably to uphold the court's ruling. Mao v. State, 222 Ga.App. 482, 483, 474 S.E.2d 679 (1996). It is the trial court's duty to resolve conflicts in the evidence, and its findings of credibility and fact will not be disturbed on appeal unless they are clearly erroneous. Id.

Viewed in this light, the record shows that a warrant was issued for Wilburn's arrest on July 9, 1995. The warrant was based on a July 7, 1995 purchase of $20 of crack cocaine from Wilburn by undercover officer Joseph Walker of the Austell Police Department. After the purchase, Walker identified Wilburn in police photographs. The following evening Walker again purchased cocaine from Wilburn. During this second purchase, Walker gave Wilburn $20 for more cocaine. Before Wilburn left to obtain the cocaine, however, Walker told Wilburn that he wanted some assurance that Wilburn would return with the cocaine or his money. In response, Wilburn gave Walker an identification card that contained Wilburn's photograph and full name.

Wilburn was subsequently arrested during the early morning hours of August 13, 1995. At 12:30 a.m., Walker was in uniform patrolling in a marked police car with another officer. Walker testified that he noticed a car speeding toward him with one headlight and that they turned on their blue lights and initiated a traffic stop. When Walker approached the car on foot, he observed four individuals inside, one of which was Wilburn. Walker testified that because he still had undercover investigations pending in the area which he did not want to jeopardize, he withdrew from the scene, went back to the police car and called for backup. According to Walker, after the four occupants exited the vehicle, "the driver was found to be DUI." The other occupants were questioned by police officers. When it was determined that the vehicle would be impounded, the other occupants were moved "a safe distance" away, and Walker searched the car. During his search he found a bag of suspected marijuana where Wilburn was sitting. After being asked by the officers who the bag belonged to, Wilburn stated that it was his. Wilburn was then placed under arrest for possession of marijuana and pursuant to the arrest warrant, for selling cocaine. It is undisputed that at the time of the traffic stop all the officers involved knew there was an outstanding warrant for Wilburn's arrest.

Wilburn moved to have evidence that he possessed marijuana suppressed on the ground that he admitted ownership of the bag during a custodial interrogation, but before he was read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He claims that because there was an outstanding arrest warrant of which the police officers were aware, they should have informed him of his rights immediately upon stopping the vehicle. We disagree.

Similar circumstances were presented to this Court in Quinn v. State, 209 Ga.App. 480(2), 433 S.E.2d 592 (1993). In Quinn, the arresting officer obtained an arrest warrant and went to defendant's house to arrest him. Before he arrested the defendant, the officer questioned him about a gun used in a shooting and asked the defendant if he owned such a weapon. The defendant responded that he did and retrieved the gun for the officer. The defendant was thereafter arrested. We observed that under Miranda, custodial interrogations "mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Punctuation omitted.) Id. at 481, 433 S.E.2d 592. Citing Ingle v. State, 123 Ga.App. 56, 179 S.E.2d 305 (1970), we concluded that "[t]his is not the sort of in-custody interrogation forbidden by the Miranda case without prior warning to the defendant, regardless of whether the peace officer, who had not arrested the defendant at that point, would have done so if he had attempted to leave the scene." (Punctuation omitted.) Id. at 482, 433 S.E.2d 592. " '[T]he issue of custody involves an objective standard: Would a reasonable person in the defendant's situation have believed that he was physically deprived of his freedom of action in any significant way? If not, he is not subject to the compulsive atmosphere of an actual arrest, and Miranda does not apply. [Cits.]' [Cit.]" Id.

In this case, we find that a reasonable person in Wilburn's place would not have believed that his freedom was curtailed in a significant way when he was asked who owned the bag of marijuana. The questioning took place during what was otherwise a fairly routine traffic stop, and Wilburn, who was not the driver, was not the subject of that investigation. Moreover, the question regarding the marijuana was directed to all the passengers, not just Wilburn. Finally, there was absolutely no evidence showing that Wilburn knew there was a warrant for his arrest or that he was even the subject of an undercover investigation. Under these circumstances, we do not find that the trial court's denial of Wilburn's motion was clearly erroneous. See id.; Mao, supra.

2. We also find no merit in Wilburn's assertion that the trial court erred in seating on the jury two veniremen he attempted to strike. The transcript shows that during jury selection, the State objected to Wilburn's peremptory strikes against jurors number 22 and 23, both white, on the ground that the strikes were racially motivated. Wilburn, an African-American, was represented by counsel who volunteered his reasons for striking the two veniremen. Wilburn's counsel explained that he struck juror number 22 because during voir dire the juror stated that he had been a burglary victim, that he had prior jury experience and that he lived in the same area of Cobb County as Wilburn and might be familiar with some of the witnesses in the case. The trial judge did not expressly rule on the racial neutrality of the explanation, but rather asked the State for a response. The Assistant District Attorney countered that juror number 22 specifically stated that he was not familiar with any witnesses and that Wilburn did not strike an African-American juror who was also a burglary victim. Wilburn's counsel explained that he struck juror number 23 because the juror stated that he had previously served as a jury foreman and because, other than fishing, he had virtually no interests outside the home and "like[d] to watch the cop shows on TV...." The trial court again did not rule on the racial neutrality of the explanation but allowed the State to respond. The Assistant District Attorney stated that the strike must have been racially motivated because Wilburn accepted another juror who complained about the number of times that she served on a jury and also accepted other jurors who had few interests outside the home. The trial court reseated both jurors following the State's response to each of Wilburn's explanations.

We note initially that in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), the United States Supreme Court extended the principles established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and held that "a criminal defendant may not engage in 'purposeful discrimination on the ground of race in the exercise of peremptory challenges.' [Cit.]" Jackson v. State, 265 Ga. 897, 898(2), 463 S.E.2d 699 (1995). In determining whether a criminal defendant has purposefully exercised his or her peremptory challenges in a racially discriminatory manner, a trial court must employ the three-step burden shifting inquiry announced in Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). This inquiry generally requires that the opponent of a peremptory challenge establish a prima facie case of racial discrimination (step 1). Id. at 514 U.S. 765, 767, at 115 S.Ct. 1769, 1770, at 131 L.Ed.2d 834, 839. "[T]he burden of production [then] shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. [Cits.]" Id. This Court is required to review the findings of the trial court with great deference and cannot disturb such findings unless they are clearly erroneous. Jackson, supra at 900, 463 S.E.2d 699.

In this case, step one of the inquiry was moot because Wilburn, the proponent of the strikes, proffered his purportedly race-neutral reasons for the strikes. See Leeks v. State, 226 Ga.App. 227, 228(3), 483 S.E.2d 691 (1997). Steps two and three of the inquiry, however, present a problem frequently encountered by this Court in reviewing a trial court's findings in these matters: the record does not clearly show that the court first determined that Wilburn (the proponent) tendered a race-neutral explanation in step two before evaluating the persuasiveness of the justification and determining the ultimate issue of purposeful racial discrimination in step...