DECIDED DECEMBER 4, 1995 RECONSIDERATION DENIED DECEMBER 18, 1995.
Murder. Wayne Superior Court. Before Judge Williams.
Howard, Carswell Bennett, Kenneth R. Carswell, for appellant (case no. S95A1453).
Zorn Caldwell, Jerry W. Caldwell, for appellant (case no. S95A1454).
Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Richard J. Warren, Assistant Attorney General, for appellee.
Appellants William Trice and Stephen Head were tried jointly before a jury. Trice was found guilty of malice murder and armed robbery, Head was found guilty of felony murder while in the commission of an armed robbery, and both were found guilty of burglary, aggravated battery, possession of a firearm while in the commission of a crime, and possession of a firearm by a convicted felon. The trial court entered judgments of conviction and sentences on the jury's guilty verdicts, including sentences of life imprisonment on the murder counts. Thereafter, separate motions for new trial were filed and, when those motions were denied, separate notices of appeal were filed. The two appeals are consolidated for disposition in this single opinion.
The crimes occurred on November 16, 1992 and the indictment was returned on February 9, 1994. The guilty verdicts were returned on March 24, 1994 and the judgments of conviction and sentences were entered on April 11, 1994. Trice's motion for new trial was filed on April 14, 1994, Head's motion for new trial was filed on April 20, 1994 and amended on April 7, 1995, and both motions were denied on May 18, 1995. Head's notice of appeal was filed on May 24, 1995, followed by Trice's on May 30, 1995. The cases were docketed in this Court on June 9, 1995 and were submitted for decision on July 31, 1995.
1. The State produced evidence showing that Trice and Head were walking towards the victim's store shortly before the crimes were committed. The victim was beaten with a gun, kicked and robbed, became paralyzed and died about 13 months later. The victim identified his attackers as two men of differing height and weight. Trice and Head fit this description and, immediately after the crimes, Trice was identified as leaving the scene in the company of another man of differing height and weight. Appellants then fled the State together, and Trice made an incriminating admission during a telephone call to Head's brother. Under this evidence, the only possible hypothesis other than the guilt of both Trice and Head is that another man replaced Head for a very short period of time and that, when the other participant left Trice's company, Head immediately rejoined Trice and fled with him. The jury was authorized to find that this hypothesis was unreasonable and that each appellant was guilty of the crimes charged beyond a reasonable doubt and to the exclusion of every reasonable hypothesis save that of guilt. Jackson v. Virginia, 443 U.S. 307 ( 99 S.C. 2781, 61 L.Ed.2d 560) (1979); Grace v. State, 262 Ga. 746, 748 (4) ( 425 S.E.2d 865) (1993); Brown v. State, 260 Ga. 153, 154 (1) ( 391 S.E.2d 108) (1990).
2. Both appellants urge that the State exercised its peremptory strikes along racial lines as prohibited by Batson v. Kentucky, 476 U.S. 79 ( 106 S.C. 1712, 90 L.Ed.2d 69) (1986). Three of the prospective jurors challenged by the prosecutor are black. The prosecutor stated reasons for his challenges, and the trial court found that each of those reasons was race-neutral. Thus, we pretermit the question of the existence of a prima facie case of racial discrimination and consider appellants' contention that the State's reasons for two of the strikes were not racially neutral. Batton v. State, 260 Ga. 127, 129 (2) ( 391 S.E.2d 914) (1990); Lee v. State, 258 Ga. 481, 482 (2) ( 371 S.E.2d 389) (1988).
The reason given for one strike was the prospective juror's employment by the Job Corps and the prosecutor's prior experience with lack of cooperation by Job Corps employees. The reasons given for the other strike were the prospective juror's unresponsiveness and sleeping in the jury box. The nature of a prospective juror's employment "is not a characteristic that is peculiar to any race." Purkett v. Elem, ___ U.S. ___ ( 115 S.C. 1769, 1771, 131 L.Ed.2d 834) (1995); Jackson v. State, 265 Ga. 897 (2) ( 463 S.E.2d 699) (1995) (employment with a bonding company). See also Higginbotham v. State, 207 Ga. App. 424, 426 (3) ( 428 S.E.2d 592) (1993) (employment as a pastor); Hillman v. State, 184 Ga. App. 712, 713 (1) ( 362 S.E.2d 417) (1987) (employment at Legal Services). Likewise, a strike based upon a prospective juror's lack of responsiveness during voir dire and sleeping is a race-neutral peremptory challenge. See Thompson v. State, 194 Ga. App. 163 (2) ( 390 S.E.2d 253) (1990) (unresponsive); Evans v. State, 183 Ga. App. 436, 440 (3) ( 359 S.E.2d 174) (1987) (unresponsive); Asbury v. Georgia World Congress Center, 212 Ga. App. 628, 629 (1) ( 442 S.E.2d 822) (1994) (sleeping). Therefore, the trial court did not err in finding that the reasons articulated by the prosecutor were race-neutral. Appellants failed to establish "that the reasons given by the State were merely pretexts for purposeful racial discrimination. [Cit.]" Henry v. State, 265 Ga. 732 (2) ( 462 S.E.2d 737 (1995) (citing Purkett v. Elem, supra).
3. The trial court did not abuse its discretion in denying Head's motion for severance. Smith v. State, 263 Ga. 224 (2) ( 430 S.E.2d 579) (1993); Harrell v. State, 253 Ga. 474, 475 (2) ( 321 S.E.2d 739) (1984).
Judgments affirmed. All the Justices concur.