Kelly v. State

434 S.E.2d 743, 209 Ga. App. 789, 1993 Ga. App. LEXIS 992
CourtCourt of Appeals of Georgia
DecidedJuly 14, 1993
DocketA93A0066
StatusPublished
Cited by22 cases

This text of 434 S.E.2d 743 (Kelly v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. State, 434 S.E.2d 743, 209 Ga. App. 789, 1993 Ga. App. LEXIS 992 (Ga. Ct. App. 1993).

Opinions

Beasley, Presiding Judge.

Barry Kelly was indicted on a charge of armed robbery, OCGA § 16-8-41 (a), in March 1991, and on separate charges of armed robbery and aggravated assault with intent to rob, OCGA § 16-5-21 (a) (1) in August 1991. The three charges were joined for trial over [790]*790Kelly’s objection, and a jury convicted him on all. His motion for new trial was denied.

The first armed robbery took place on January 26, 1991. A man entered a Wendy’s restaurant and directed the assistant manager to walk back to the office and open the safe. He was joined by a second man holding a gun at his side who assisted in taking the money from the safe. At trial, the assistant manager identified Kelly as the second man.

The second incident occurred two days later. Two men were loading computer equipment into a car in a garage when a gunman appeared and, after learning the men had no billfolds, demanded the car keys. When this request was refused, the robber struck the owner of the car. When a second man then approached the car the victims surrendered the keys, but before the two robbers drove away in the stolen car, the same victim was hit again from behind. Three days after this robbery, the owner of the car identified Kelly from a photographic lineup.

Approximately two weeks later, Kelly was apprehended when a policeman responding to a call to assist a motorist found him attempting to change the tire of a car. Kelly claimed to have borrowed the car, but when the officer checked on both Kelly and the tag, he learned there was a felony warrant outstanding for Kelly for the armed robbery in which the car was taken on January 28.

1. Kelly, who is black, contends the trial court erred in denying his challenge, based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), to the State’s use of its peremptory strikes. Batson directs a three-step process for' evaluating a claim of racial discrimination in the State’s use of peremptory jury strikes: (1) the defendant must make a prima facie showing that the prosecution has exercised its peremptory challenges on the basis of race; (2) the burden then shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question; and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

(a) The trial court found that Kelly had failed to make a prima facie showing of discrimination under Batson. Out of an abundance of caution, however, he continued with the second and third steps of the evaluation. Twenty-five blacks were included in the fifty-four person venire, or forty-six percent. Four jurors were struck for cause, of whom one was black, leaving the percentage of blacks in the fifty-person venire at forty-eight percent. The jury impaneled, including the two alternates, included five blacks, or thirty-six percent. The prosecution exercised nine peremptory challenges, all against blacks. This was sufficient to create a prima facie inference of racial discrimination, Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987), and thus [791]*791the trial court’s determination that no prima facie showing had been made was erroneous. Id.

“However, ‘(o)nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. ([Cit.])’ ” Lewis v. State, 262 Ga. 679, 680 (424 SE2d 626) (1993).

(b) We turn, then, to the reasons given by the prosecutor for striking the nine jurors in question, to determine whether he made sufficient showing that the challenges did not involve discriminatory purpose. “The prosecutor’s explanations must be strong enough to overcome the prima facie case.” Ford v. State, 262 Ga. 558, 559 (2) (423 SE2d 245) (1992).

At the Batson hearing, the defense did not respond to three of the reasons given by the prosecutor, and on appeal the reasons given for striking those three jurors are not challenged. The reasons given for these strikes were not “suspect.” Compare Ford, supra at 559-560 (3). Rather, they demonstrate “the kind of concrete, tangible, race-neutral and neutrally-applied reasons that can overcome the strong prima facie case established ... in this case.” Id.

Four other prospective jurors were struck for various “reasonable suspicions” articulated by the prosecutor regarding their impartiality. Two of them specifically expressed doubt that they could be impartial. Another’s father had been convicted of a crime and had been imprisoned. See Davis v. State, 263 Ga. 5 (10) (426 SE2d 844) (1993). One, a 19-year-old male, expressed his belief that law enforcement officials had not done what they could have done to investigate an armed robbery in which he had been the victim, and the prosecutor believed that attitude made him an unsuitable juror. “A reasonable suspicion about a prospective juror’s impartiality that falls short of justifying an excuse for cause might well justify the exercise of a peremptory strike.” Hall v. State, 261 Ga. 778, 780 (2) (a) (415 SE2d 158) (1991).

The prosecutor explained that he struck a nurse who had retired from his job in a hospital observation ward on disability because of doubts regarding his health, stamina, and ability to sit through a lengthy trial and observe the witnesses.

The prosecutor’s remaining strike was of a prospective juror who indicated he had worked at his present job for only four months. Prior to that he worked in catering for Eastern Airlines for about seven years. His wife was in art school. The explanation was that he was struck because of the prosecutor’s concern that he was not “a stable member of this community.” Defense counsel’s response at the Batson hearing that other prospective jurors had similar work histo[792]*792ries yet had not been stricken is not borne out by the record, which reveals only one such prospective juror who became a member of the petit jury. That member’s race is not shown. The record does not reflect the race of the jurors accepted by the State, but only that of the jurors specifically challenged by appellant. Some of the jurors described in the dissent may be black and were accepted by the State.

Standing alone, the prosecutor’s explanation has the appearance of one of those “reflect[ing] certain stereotypical attitudes as to particular groups,” Tharpe v. State, 262 Ga. 110, 112 (6) (416 SE2d 78) (1992), and therefore suspect, as urged by Kelly. See Thomas v. State, 208 Ga. App. 367 (430 SE2d 768) (1993), (Beasley, P. J., dissenting). However, it “must be evaluated in light of the explanations offered for the prosecutor’s other peremptory strikes, and, as well, in light of the strength of the prima facie case. The persuasiveness of a proffered explanation may be magnified or diminished by the persuasiveness of companion explanations, and by the strength of the prima facie case.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Myrick v. State
306 Ga. 894 (Supreme Court of Georgia, 2019)
Cody v. State
609 S.E.2d 320 (Supreme Court of Georgia, 2004)
Ware v. State
574 S.E.2d 898 (Court of Appeals of Georgia, 2002)
Odom v. State
526 S.E.2d 646 (Court of Appeals of Georgia, 1999)
Jones v. State
523 S.E.2d 402 (Court of Appeals of Georgia, 1999)
Sanders v. State
512 S.E.2d 678 (Court of Appeals of Georgia, 1999)
Kinney v. State
506 S.E.2d 441 (Court of Appeals of Georgia, 1998)
McGlohon v. State
492 S.E.2d 715 (Court of Appeals of Georgia, 1997)
Robert v. State
488 S.E.2d 105 (Court of Appeals of Georgia, 1997)
Walton v. State
480 S.E.2d 284 (Court of Appeals of Georgia, 1997)
Herrin v. State
471 S.E.2d 297 (Court of Appeals of Georgia, 1996)
Parker v. State
464 S.E.2d 910 (Court of Appeals of Georgia, 1995)
Teasley v. State
448 S.E.2d 904 (Court of Appeals of Georgia, 1994)
Dixon v. State
448 S.E.2d 40 (Court of Appeals of Georgia, 1994)
Rector v. State
444 S.E.2d 862 (Court of Appeals of Georgia, 1994)
Asbury v. Georgia World Congress Center
442 S.E.2d 822 (Court of Appeals of Georgia, 1994)
Shakim v. State
438 S.E.2d 673 (Court of Appeals of Georgia, 1993)
Chunn v. State
435 S.E.2d 728 (Court of Appeals of Georgia, 1993)
Kelly v. State
434 S.E.2d 743 (Court of Appeals of Georgia, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
434 S.E.2d 743, 209 Ga. App. 789, 1993 Ga. App. LEXIS 992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-gactapp-1993.