Opinion
A98A0379.
DECIDED JULY 15, 1998 — CERT. APPLIED FOR.
Batson motion. Clarke Superior Court. Before Judge Gaines.
Thurmond, Mathis Patrick, Adrian L. Patrick, for appellant.
Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.
Defendant Quathro Burton was convicted following a jury trial of the offense of burglary. His motion for new trial was denied, and he filed the present appeal to this court.
1. Defendant's first enumeration of error, in which he challenges the sufficiency of the evidence to support his conviction, is without merit.
2. Defendant also argues the State failed to show a race neutral reason for striking an African American prospective juror.
" Purkett v. Elem, 514 U.S. 765 ( 115 SC 1769, 131 L.Ed.2d 834) (1995) requires the trial court to establish, on the record, that it has applied a three-part test to a party's claim of discrimination in the use of peremptory strikes. First, the party challenging a strike has the burden of making a prima facie showing of discrimination. The proponent of the strike must then produce an explanation for the strike which is race-neutral and non-discriminatory on its face, but `is not required to enunciate "an explanation that is persuasive, or even plausible."' The burden of proving that the proffered explanation is merely pretext for discrimination then shifts back to the challenging party." (Citations omitted.) O'Neal v. State, 226 Ga. App. 224, 225 ( 482 S.E.2d 278) (1997).
In this case the State volunteered its reason for striking the juror; thus whether the defendant established a prima facie case of discrimination is moot. See, e.g., Chunn v. State, 210 Ga. App. 209, 210 (2) ( 435 S.E.2d 728) (1993).
The record shows that the reason the State offered for striking the juror was that she was a member of a particular church. No other juror claimed membership in the church. The prosecutor stated on the record: "Ms. Collins says she goes to Hill Chapel Church. Hill Chapel is one of the churches that were organizing protests about the way the police and the DA's Office were handling the Edward Wright shooting. I don't want anybody that goes to a church that thinks it's their business how the police and the DA's office conduct their business to the extent that they'll organize a protest about it on the jury. That's a religious organization, but yet, they will protest the way the police are doing their jobs. I don't want anybody on the jury that is a member of that church." "I don't care if it's a white church, a black church, or a Hispanic church or an Asian church, I don't want anybody who goes to a church that organizes political protests on my jury."
After the State proffered its reason, and the trial court accepted it as race neutral, the defendant, as the opponent of the strike, was required to show that the State's strikes were racially motivated. The trial court specifically found that the defendant failed to carry this burden. "[T]he ultimate burden of persuasion about the racial motivation rests with and never leaves the opponent of the strike." Holt v. Scott, 226 Ga. App. 812, 816 ( 487 S.E.2d 657) (1997).
Defendant argues, however, that the trial court erred in finding race neutral the State's reason for striking the prospective juror. "[C]oncern that a prospective juror is hostile to the State or that a juror will not seriously consider the State's evidence are neutral reasons for a strike." Jones v. State, 226 Ga. App. 428, 430 (1) ( 487 S.E.2d 62) (1997). Defendant asserts that the State should have further questioned the juror to ascertain whether she had participated in the demonstrations or what her feelings were about the prosecution. But it was the defendant's and not the State's burden to show discriminatory intent, once the State gave it race neutral reason for striking the juror. See Turner v. State, 267 Ga. 149, 153 ( 476 S.E.2d 252) (1996). "`A trial court's determination of a Batson challenge rests largely upon assessment of the attorney's state of mind and credibility; it therefore lies peculiarly within a trial judge's province. The trial court's factual findings must be given great deference and may be disregarded only if clearly erroneous.' (Citations and punctuation omitted.) Holt v. Scott, 226 Ga. App. 812, 816 ( 487 S.E.2d 657) (1997)." Johnson v. State, 231 Ga. App. 114, 117 ( 497 S.E.2d 666) (1998). "[C]onsidering the totality of the circumstances, including the racial composition of the trial jury . . . we cannot conclude that the trial court's Batson ruling was clearly erroneous." Barnes v. State, 269 Ga. 345 350-351 ( 496 S.E.2d 674) (1998).
Judgment affirmed. Andrews, C.J., and Blackburn, J., concur. Eldridge, J., concurs specially. McMurray, P.J., Beasley and Ruffin, JJ., dissent.
DECIDED JULY 15, 1998 — CERT. APPLIED FOR.
I concur only in the judgment of the majority.
Respectfully, I cannot agree with my appellate colleagues' Batson analysis which, to me, has had the result of vitiating Batson/McCollum challenges in this State.
1. Under the majority's analysis, the Batson test is now, in effect, a four-step inquiry: (1) A prima facie showing; (2) a facially race-neutral explanation; (3) an independent requirement that the opponent of the strike prove that the otherwise race-neutral explanation is not really neutral (i.e., proving a negative); and then, (4) the trial court's decision based upon whether the opponent proved the race-neutral reason was not really neutral.
Under this model, a trial court commits reversible error if it "collapses the steps" by deciding too soon that an otherwise race-neutral reason is or is not neutral before the opponent of the strike "proves" it to the court. See, e.g., Smith v. State, 232 Ga. App. 458 ( 501 S.E.2d 622) (1998); Gilbert v. State, 226 Ga. App. 230 ( 486 S.E.2d 48) (1997). However, a review of the decisions of other states shows that Georgia is alone in such interpretation; no other states have reversed based upon a "premature" evaluation of step-three. See particularly People v. Payne, 666 N.E.2d 542, 550 (N.Y. 1996). Such review shows that while other states recognize that the "burden of persuasion never leaves the opponent of the strike" pursuant to Purkett, that language does not translate into an inquiry independent of steps one and two, but is simply part and parcel of the trial court's step-three evaluation "in light of all relevant circumstances," including the persuasiveness of otherwise race-neutral strikes. Bruner v. Cawthorn, 681 So.2d 161, 171 (Ala. 1995).
See, e.g., State v. Vargas, 926 P.2d 223, 227 (Kan. 1996); Riley v. Commonwealth, 464 S.E.2d 508, 510 (Va.App. 1995); State v. Best, 467 S.E.2d 45, 51 (N.C. 1996); State v. Murray, 906 P.2d 542, 557 (Ariz. 1995); People v. Nunn, 652 N.E.2d 1146 (Ill.App. 1 Dist. 1995); Palmer v. State, 654 N.E.2d 844 (Ind.App. 1995); People v. Hope, 658 N.E.2d 391 (Ill. 1995); Thorpe v. State, 689 N.E.2d 441 (Ind. 1997); State v. Robinson, 662 A.2d 1295 (Conn.App. 1995); State v. Gaitan, 536 N.W.2d 11 (Minn. 1995).
Further, in this State, in departure from all other states, we will reverse on appellate review if we decide that the opponent of the strike did not sufficiently meet his burden to prove that an otherwise facially race-neutral explanation was not really neutral — even if we recognize the trial court's basis for deciding contrary to our perceptions. See Malone v. State, 225 Ga. App. 315, 317 ( 484 S.E.2d 6) (1997) and Smith v. State, supra, reversing the trial court although "it is fairly easy to understand why the trial court found some of the reasons given for the peremptory strikes to be unpersuasive."
To my mind, it is extremely important to realize that the great majority of states have struggled in the "aftermath" of Purkett. See, e.g., Maddox v. State, 708 So.2d 220, 230 (Ala. 1997), Long, P.J., concurring). The exasperation level is such that some states have simply refused to follow Purkett, finding that opinion "a digression" from prior federal decisions and relying instead on Batson protections under state constitutional grounds. See, e.g., People v. Jamison, 50 Cal.Rptr.2d 679, 686 (Cal. 1996). However, the majority of states have interpreted the Purkett decision as affirming that the "primary determination of whether the [striker] acted with unlawful purpose during jury selection [is] in the hands of the trial judge," thereby keeping Batson/McCollum challenges viable in their respective states. (Emphasis supplied.) State v. Vargas, 926 P.2d 223, 227 (Kan. 1996) Yet, Georgia, apparently alone, has used the Purkett decision to develop a model for Batson/McCollum appellate inquiry that appears to me so unclear in its application and results in such routine reversal of the trial courts that, in my view, it seems safe to assume that fear of reversal has become a primary motivating factor in most trial court's step-three determinations, thereby rendering Batson/McCollum challenges useless in this State.
See, e.g., Jackson v. State, 265 Ga. 897 ( 463 S.E.2d 699) (1995); Turner v. State, 267 Ga. 149 ( 476 S.E.2d 252) (1996); Chandler v. State, 266 Ga. 509 ( 467 S.E.2d 562) (1996); Pickett v. State, 226 Ga. App. 743 ( 487 S.E.2d 653) (1997); O'Neal v. State, 226 Ga. App. 224 ( 482 S.E.2d 478) (1997); McKenzie v. State, 227 Ga. App. 778 ( 490 S.E.2d 522) (1997); Gilbert v. State, supra; Smith v. State, supra.
Certainly neither Purkett, Batson, McCollum, nor any other United States Supreme Court case provides a legal basis for such appellate control. Indeed, it is hard to imagine how the Supreme Court could have advised against such micro-management any more strongly than it did in Purkett when reversing the Eighth Circuit Court of Appeals for refusing to give deference to the trial courts' step-three credibility determination. And it appears to me that Georgia, especially, cannot afford to permit the de facto disappearance of Batson in light of the evils that decision was designed to address. I urge — again — that the model be changed in Georgia so as to give viability to challenges made under Batson/McCollum.
In reality, under Purkett as interpreted by the majority of states, determining whether "the opponent of the strike met its burden of proving discriminatory intent," is the third step and does not require proof independent from steps one and two. As recognized by the majority of states, the trial court's step-three determination is based upon "a variety of factors" as articulated by the United States Supreme Court. State v. Brooks, 960 S.W.2d 479 (Mo. banc 1997). "At the third stage, it becomes the function of the trial court to assess the `genuineness' of the [striker's] explanations and the credibility of the [striker] in offering that explanation. It is at the third stage of the analysis, then, that the trial court might find that explanations provided by a prosecutor are pretextual. As the dissent in Purkett explains, Purkett stands for the proposition that `(a) trial court must accept (the) [race-]neutral explanation unless a separate "step three" inquiry leads to the conclusion that the peremptory challenge was racially motivated.'" (Citations and punctuation omitted.) People v. Nunn, 652 N.E.2d 1146, 1150 (Ill.App. 1 Dist. 1995). Accordingly, the third step cannot be "collapsed" into the second step by the trial court; such "collapse" occurs only in the appellate arena when the appeals court "prematurely" evaluates the striker's step-two explanations (as did the Eighth Circuit Court of Appeals in Purkett), rather than deferring to the step-three determination of the trial court as to the explanations.
For example, the trial court's disbelief of the explanations, together with elements of the prima facie case; the trial court's knowledge of the community in relation to the explanations offered; or the trial court's knowledge of the one utilizing the strike in relation to the explanations offered. See, St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 SC 2742, 125 L.Ed.2d 407 (1993); Hernandez v. New York, 500 U.S. 352, 365, 111 SC 1859, 114 L.Ed.2d 395 (1991); Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 914 (11th Cir. 1994).
2. Keeping these principles in mind in this case, the reason articulated by the State for striking Ms. Collins was race-neutral. Further, the prosecutor's race-neutral explanation was clear, certain, and drew on his own and the trial court's knowledge of the community in relation to the specific facts the juror provided on voir dire. Such is completely permissible and provided a sufficient basis for the trial court to overrule the defense Batson motion. Hernandez v. New York, supra at 365.
Moreover, the Supreme Court's decision in Walton v. State, 267 Ga. 713 ( 482 S.E.2d 330) (1997), upon which the dissent relies for a contrary result, does not support the dissent's position.
In Walton, the Supreme Court reversed because the juror on voir dire did not supply the "connection" that she was related to defense attorney, C.B. King. The juror stated only that she was related to "a defense attorney." The juror's relationship, with King was supplied later by the D.A.; yet, it was this connection/relationship with King that the D.A. offered as his basis for striking the juror. Thus, whether such relationship/connection in fact existed was not on the record from the juror's own statement so as to support the prosecutor's strike. The Supreme Court did not reverse in Walton because the record failed to provide a factual basis to support the prosecutor's antipathy toward King. After all, a striker's reasons may be "silly or superstitious." Purkett, supra. The Court reversed in Walton because the juror's connection to King was not established factually so as to support striking her based on that connection.
The other reason the prosecutor gave for striking the juror, i.e., hostile views regarding a "dual system of justice," was not merely "unsupported" by the record as opined by the dissent; in fact, the record contradicted the prosecutor's reason because it showed that "the venireperson specifically disclaimed that position for herself." Walton, supra at 719.
Here, however, the juror on voir dire provided her connection/relationship to the specific church, Hill Chapel Church, which connection the D.A. stated was his basis for striking her. Thus, the relationship/connection is on the record from the juror's own statement so as to support the prosecutor's strike. Under Walton, the factual basis for the prosecutor's reluctance to put a member of Hill Chapel on the jury need not be on the record for our consideration on appellate review. Again, a striker's reasons may be silly or superstitious; it is the trial court's evaluation thereof that controls based upon a myriad of factors, including knowledge of the community. Id. Under Walton, what needs to be on the record is the factual connection between Hill Chapel and the juror so as to support striking her based on that connection. It is on the record in this case, and thus Walton is inapplicable.
Here, the State had no burden beyond articulating a reason for striking Ms. Collins which was race-neutral and, to the trial court, clear and reasonably specific. The trial court found that the State did so in this case. Burton has not shown that the trial court's credibility determination was clearly erroneous. Accordingly, I concur in the majority's judgment affirming Burton's conviction.
The prosecutor based his peremptory challenge of Ms. Collins on her membership in a church whose members protested the way the police were doing their jobs. The trial court found the reason race neutral and ultimately concluded that Burton failed to meet his burden of showing purposeful discrimination. Upon considering the matter with great deference to the trial court's decision, the majority concluded that the decision was not clearly erroneous. Notwithstanding the apparent racial neutrality of the proffered reason, and also with great deference to the trial court, I disagree with the majority that the record supports the court's ultimate conclusion that Burton failed to meet his burden. Accordingly, for reasons which follow, I dissent from the majority's opinion and conclude that Burton is entitled to a new trial.
Although I do not disagree with the majority's rendition of what occurred during voir dire, I note that the only question and response concerning Ms. Collins, the church, the activities of its members and her association with the church is as follows: "[ASSISTANT DISTRICT ATTORNEY]: Are you a member of any social or religious organizations? MS. COLLINS: Yes, I belong to Hill Chapel Baptist Church." Based solely on this response, the Assistant District Attorney struck Ms. Collins. He explained to the court: "Ms. Collins says she goes to Hill Chapel Church. Hill Chapel is one of the churches that were organizing protests about the way the police and the DA's Office were handling the Edward Wright shooting. I don't want anybody that goes to a church that thinks it's their business how the police and the DA's office conduct their business to the extent that they'll organize a protest about it on the jury. That's a religious organization, but, yet, they will protest the way the police are doing their jobs. I don't want anybody on the jury that's a member of that church [sic]."
Although in past decisions we have focused primarily on whether a trial judge is authorized to accept a reason as race neutral, we must remain cognizant of the additional requirements that the reason be case-related, clear and reasonably specific. See Greene v. State, 266 Ga. 439, 442 (5) ( 469 S.E.2d 129) (1996), rev'd on other grounds, 519 U.S. 145 ( 117 SC 578, 136 L.Ed.2d 507) (1996); Walton v. State, 267 Ga. 713, 718 (5) ( 482 S.E.2d 330) (1997). And, of equal importance, we must keep in mind that a proffered reason can meet these requirements only if it is supported by the record. See id. at 719.
In Walton, the State struck a potential African American juror upon finding that she "`made the statement that she felt like there was a dual system of justice . . . against black people who are tried by the courts in this country. . . .'" Id. at 718. The Assistant District Attorney also recalled that the potential juror was either acquainted with or had a cousin who was acquainted with a local attorney whom the Assistant District Attorney characterized as a litigator who usually made race a prominent defense in his cases. Based on the juror's purported statement and acquaintance with the attorney, the Assistant District Attorney concluded that the juror "`might, if on this jury, try to even up for past wrongs and straighten the system out by letting these defendants go. . . .'" Id. at 719. In response to questioning by the court, the Assistant District Attorney explained that "he was not striking the woman on account of her race, but `because of [the attorney she knew] and his appeals.'" Id. Based on these reasons, the trial court overruled the defendant's Batson challenge.
On appeal, the Supreme Court found that the proffered reason "cannot fairly be said to be `case-related, clear and reasonably specific,' [cit.], because it is not supported by the record. All the venireperson said was that she had a cousin in Georgia who was a lawyer. The rest of the lawyer's connections were supplied by counsel for the State and the defense." Id. As for the juror's belief in a dual system of justice, the Court found that this also was supplied by counsel and not supported by the juror's responses during voir dire. Id. Under these circumstances, the Court concluded that "neither of the reasons given for striking that particular venireperson meet[s] the requirement in Greene, supra, that they be `race-neutral, case-related, clear and reasonably specific.'" Id. at 720.
The reason proffered by the State in this case suffers from the same infirmity as those addressed in Walton; they are simply not supported by the record. See id. Rather, like the reasons advanced in Walton, they depend exclusively on information supplied by counsel for the State. See id. All Ms. Collins said was that she belonged to Hill Chapel Baptist Church. There was no evidence concerning the extent of her relationship with the church, including whether she actively participated in church activities. Furthermore, although one might reasonably infer that she believed in the fundamental religious tenets of the church, there is no evidence that the juror even knew of the purported protests, much less that she attended them or subscribed to the political beliefs of the protesting church members. Of similar concern, there was no evidence establishing whether a majority of the church members protested or whether only a small faction of congregants held the belief and participated in the protest.
More is required of a party justifying a peremptory strike than was exhibited by the State in this case. In light of the State's purported concerns with Ms. Collins' response that she `belonged' to the church, it is disconcerting that "the prosecutor failed meaningfully to question [her] to elicit answers that might support his suspicions or provide some objective basis for excusal rather than mere speculation." Ford v. State, 262 Ga. 558, 560, n. 2 (3) ( 423 S.E.2d 245) (1992). In light of the fact that the prosecutor merely ascribed to the potential juror political beliefs supporting his strike without any evidence that she actually held those beliefs, I believe the trial court clearly erred in overruling Burton's Batson challenge. Consequently, Burton is entitled to a new trial. See Walton, supra.
I am authorized to state that McMurray, P.J., and Beasley, J. join in this dissent.