Lingo v. State

437 S.E.2d 463, 263 Ga. 664

• Court: Supreme Court of Georgia
• Decided: December 3, 1993
• Docket: S93A0957
• Status: Published

Opinions

Hunt, Presiding Justice.

Rodney Dwayne Lingo was convicted of murder, theft by taking of a motor vehicle, and armed robbery. He was indicted for but found not guilty of rape. The state unsuccessfully sought a death sentence. Lingo received a life sentence for murder, a consecutive life sentence for armed robbery, and a consecutive 20-year sentence for theft by taking.¹

At the time the victim, Tracy Plank, was killed, Lingo was living with a friend or acquaintance of the victim, Teresa Cooper. The evidence showed that on the evening of November 4, 1985, the victim and Lingo left the home of a mutual friend together in the victim’s car. Several hours later, Lingo was seen driving the victim’s car alone. The next day, Lingo was seen wearing the victim’s jacket and trying to sell parts of the victim’s car. The victim’s body was found in a roadside wooded area about five days later. She had been shot twice in the head with a gun belonging to Lingo. In statements given to the police, Lingo claims that another friend, who was riding around with him and the victim, was the one who actually shot the victim. In subsequent statements, Lingo implicates two other, different people with pulling the trigger.

1. In his first enumeration of error, Lingo, who is black, contests the trial court’s ruling that the reasons given by the prosecutor for the exercise of his peremptory strikes were adequate under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), and its progeny.² We find that notwithstanding the prima facie inference of racial discrimination, the record supports the trial court’s findings that the prosecutor’s reasons for his strikes were racially neutral, and shows that the prosecutor was able to overcome the prima facie case.

(a) The venire was made up of 50 qualified jurors, and the petit jury was selected from the first 47 jurors called. Of those 47 jurors, 34 were white and 13 were black. The state exercised its ten peremptory strikes against the first ten black venire members called. After the state had exhausted its peremptory strikes, two black jurors were added to the petit jury by the defense. The state then used its only peremptory strike for alternate jurors on the first black potential alternate juror to be called. The record does not indicate the race of the three qualified jurors who remained after the jury was empaneled. Therefore, at least thirteen and no more than sixteen of the fifty qualified jurors were black (26 percent to 32 percent), and two of the twelve jurors who served were black (16.7 percent). The prosecutor exercised 100 percent of his peremptory strikes to exclude black jurors and did not accept any of the black jurors called before he exhausted his strikes.

“[T]his ‘overwhelming’ ‘pattern’ of strikes establishes a prima facie inference of racial discrimination.” (Citations and punctuation omitted.) Ford v. State, 262 Ga. 558, 559 (423 SE2d 245) (1992). See also Gamble v. State, 257 Ga. 325, 327 (357 SE2d 792) (1987) and Williams v. State, 262 Ga. 732 (426 SE2d 348) (1993). To overcome this inference of discrimination,³ the prosecutor mus.t present “concrete, tangible, race-neutral and neutrally-applied” reasons for the strikes exercised against black venire members. Ford, 262 Ga. at 560. The greater the disparity between the percentage of black jurors in the venire and the percentage of strikes exercised by the state against black jurors, the more likely it becomes that racial bias underlies the exercise of the peremptory challenges, and the greater the scrutiny the trial court must apply to the prosecutor’s proffered explanations “to ensure that we honor Batson’s command to eliminate racial discrimination from the exercise of peremptory challenges.” Id. at 560-561. The prosecutor in this case exercised 100 percent of his strikes against black jurors, while black jurors made up no more than 32 percent of the qualified venire. Where such a considerable disparity exists the prosecutor’s explanations for his peremptory challenges must be “strong enough to overcome the [defendant’s] prima facie case.” Id. at 559.

(b) Thus, we must review the prosecutor’s stated reasons for his strikes to determine whether they overcame the defendant’s prima facie case of discrimination. In so doing, we must give the trial court’s factual findings “great deference.” Batson, supra, 106 SC at 724. See also Gamble v. State, supra at 327 (5); Isom v. State, 261 Ga. 596, 598 (2) (408 SE2d 701) (1991). We may only disregard those findings if they are clearly erroneous. Gamble v. State, supra at 327 (5). Of course, we may still disagree with the trial court’s conclusions based on those findings and where there is a strong prima facie case, as here, we must carefully scrutinize those conclusions. We review each of the prosecutor’s strikes as follows:

(1) The prosecutor gave as his reasons in support of his first strike, which was against a black woman, the fact that the woman was “indecisive” about the death penalty, and preferred a life sentence, and that she had a hearing problem. The trial court concurred in the prosecutor’s statements regarding the juror’s testimony on voir dire, and found the prosecutor’s reasons to be race-neutral.

(2) The prosecutor’s reasons for his second strike, against a black man, were that he was strongly opposed to the death penalty, and had a DUI conviction. The trial court agreed with the prosecutor’s account of this juror’s testimony, and found the reasons to be race-neutral.

(3) The prosecutor’s reasons for his third strike, against a black woman, were that she was hesitant about the death penalty, and initially stated she would not stand up and affirm a verdict of death and the death penalty, and that she was familiar with the case and a witness in the case. The trial court, in finding these reasons to be race-neutral, specifically concurred in the prosecutor’s account of this juror’s testimony.

(4) The prosecutor gave as his reasons for his fourth strike, against a black woman, the fact that she was opposed to the death penalty, and knew a witness in the case. The trial court found these reasons race-neutral, and specifically stated its recollection of the juror’s testimony as consistent with the prosecutor’s account.

(5) The prosecutor’s reason in support of his fifth strike, against a black man, was that the juror made it very clear he did not want to serve, that the prosecutor was concerned the juror would be preoccupied with his financial problems, and that the prosecutor had difficulty in getting the juror to respond or pay attention to his questions. The trial court found these reasons to be race-neutral, specifically recalling that the juror could not keep still during the voir dire, and, itself, questioning whether “from his demeanor” this juror was “competent to handle this type of situation.”

(6) The prosecutor’s reasons in support of his sixth strike, also against a black man, were that the juror was opposed to the death penalty, and was familiar with the defendant and with a witness. The trial court specifically recalled this juror’s testimony as consistent with the state’s account, and found the state had articulated race-neutral reasons for the strike.

(7) The prosecutor’s reasons in support of his seventh strike, against a black woman, were that she was very opposed to the death penalty, and that if she served, the prosecutor was concerned she would be preoccupied with a sick child at home. The trial court stated its recollection was consistent with the state’s explanation. Moreover, the trial court noted his recollection that the juror clearly did not want to be there, and someone had to be sent to get her for jury duty.

(8) The prosecutor’s reasons for his eighth strike, against a black man, were that he was initially hostile in his responses, and this juror and the prosecutor “got off on the wrong foot at the very start.” The prosecutor also gave as reasons the fact that the juror’s criminal justice degree might affect his objectivity, and that the juror had testified as a character witness on behalf of a defendant in a prior case. The trial court, in accepting the prosecutor’s reasons as race-neutral, specifically recalled this juror’s responses as belligerent.

(9) The prosecutor’s reasons for his ninth strike, against a black woman, were that she knew a witness in the case, could not give her sentence if polled, and that she had a conviction for shoplifting. The trial court found these reasons to be race-neutral.

(10) The prosecutor gave as his reason for his tenth strike, against a black man, that the juror had a prior conviction, and had indicated on the jury questionnaire that he had a “bad check problem.” The trial court found these reasons to be race-neutral.

(11) Finally, the prosecutor gave as his reasons for striking an alternate juror, a black woman, the fact that she was opposed to the death penalty, as well as the fact that she was a teacher and school was to start the following Monday. The trial court found these reasons to be race-neutral.

(c) The record supports the trial court’s findings that the reasons given by the prosecutor were not racially motivated, and demonstrates that the prosecutor was able to overcome the very strong prima facie inference of racial discrimination.

The dissent correctly cites Strozier v. Clark, 206 Ga. App. 85, 88 (424 SE2d 368) (1992), a recent Court of Appeals case, for the rule that where racially-neutral and neutrally-applied reasons are given for a strike, the simultaneous existence of any racially motivated explanation results in a Batson violation. However, the dissent would misapply this rule by creating a presumption that any reason for striking a black juror, not also used against a white juror — regardless of other reasons for striking a black juror — is, per se racially motivated. This is not what Batson or Strozier hold, or even imply.⁴ Rather, there is a Batson violation only where the prosecutor’s explanation is determined to be racially motivated. Where there are multiple reasons for striking a juror, white or black, it cannot be presumed that a reason applied to one juror, of one race, but not applied to another juror, of another race, is racially motivated.

Of course we are required, in a strong prima facie case such as here, to carefully examine the prosecutor’s remaining reasons, to determine if there is an underlying racial motive. And, where a reason is given against a black juror, not also used against a white juror, the reason is particularly suspect. Ford, supra at 559. However, we are not authorized to create an inference of discrimination where none is apparent, and where none has been found by the trial court, to whose findings we must give great deference. Compare Ford, supra at 559, where the prosecutor’s explanations for his strikes were almost, as the defendant contended, “fanciful.” Compare also fn. 4, supra, regarding Strozier, and the cases cited therein. While we are required to carefully review the record in a case involving a Batson challenge, especially where a strong prima facie case is made, we are still required to give the trial court’s findings “great deference,” and we are not authorized to ignore them. See Division 1 (b), supra. Here, the trial court’s findings are not clearly erroneous.

The dissent not only would entirely bypass the trial court’s findings, but would create a new rule to the effect that, notwithstanding a valid reason for a strike against a black juror, any additional reason applied against a black juror, not also applied against a white juror is, ipso facto, racially motivated. This would be a radical departure from Batson and Strozier, and would create an almost impossible dilemma for prosecutors (or, indeed, for lawyers for any party in a civil or criminal case, since Batson applies in those instances as well).⁵ Further, the dissent would have this court act as a de novo forum for Batson review.

For the foregoing reasons, we find no error in the denial of Lingo’s challenges based on Batson v. Kentucky, supra.

2. We find no merit to Lingo’s remaining enumerations of error.

Judgment affirmed.

All the Justices concur, except Benham and Sears-Collins, JJ., who dissent.

1 The crimes were committed on November 4, 1985. Lingo was indicted on June 16, 1986. The trial was held in Houston County Superior Court on August 21-26,1986, and Lingo was sentenced on August 26, 1986. Lingo filed a motion for new trial on September 25, 1986. The court reporter certified the trial transcript on October 6, 1990, and certified the voir dire transcript on August 24, 1991. A hearing was held on the motion for new trial on July 15, 1992, and the motion was denied on November 19, 1992. A notice of appeal was filed on December 17, 1992, and the appeal was docketed in this Court on March 29, 1998. Oral arguments were heard on June 23, 1993.

2 This case was tried just a few months after the United States Supreme Court’s decision in Batson and prior to any decisions of this court. Nevertheless, the trial court required the state to explain each of its peremptory strikes in response to the defendant’s Batson challenges.

3 We do not, by affirming this conviction mean, in any way, to minimize the weight of such an inference under these circumstances.

4 The purpose of Batson, and the holding the dissent cites from Strozier v. Clark, is to preclude the use of peremptory strikes for racially motivated reasons. To that end, Strozier (citing two cases from Texas, and one from South Carolina) states that a racially motivated explanation for striking a juror will invalidate the entire jury selection, even though a racially-neutral explanation is also given. In essence, Strozier stands for the proposition that where it can be determined that the racially-neutral explanation is, in fact, pretextual since there is a racially motivated reason that can be independently determined, the jury selection process is invalid under Batson. Strozier does not hold that where one racially-neutral reason is given for striking a juror, any additional reason, not also used against a juror of another race, is per se racially motivated. The cases cited by Strozier illustrate that there must be some indication that the “additional reason” is, in fact, racially motivated. In Moore v. State, 811 SW2d 197 (Tex. App. 1991), the prosecutor stated that she struck one juror, in part, because that juror was a member of a minority club. Of course, this was not a racially-neutral reason, notwithstanding that the prosecutor also gave, as a reason for striking this juror, that the juror was hesitant to impose a life sentence. In State v. Tomlin, 384 SE2d 707 (S.C. 1989) the prosecutor gave the racially-neutral reason for striking a juror as the fact that the juror was unemployed, but also stated that the juror “shucked and jived.” In McKinney v. State, 761 SW2d 549 (Tex. App. 1988) the prosecutor admitted that race was a factor in striking the juror in question. In Strozier itself, the prosecutor, in addition to stating the apparently neutral reason of the juror’s age as his reason for striking her, also gave his completely unsupported opinion that the juror was dishonest in her answer to questions, an opinion he stated was based on an experience the prosecutor had previously, with other jurors, in an unrelated case. Thus, in Strozier, as well as the cases cited in its support, it is apparent that the “additional reasons,” in themselves, were racially motivated and, accordingly, rendered the selection process invalid under Batson.

5 It is often stated that a trial lawyer does not “select” a jury so much as eliminate as jurors those whom he thinks will be worse for his side. The fact that a black juror is adamantly opposed to the death penalty and knows a witness in the case, and that those two reasons are given by the prosecutor for striking that juror, does not mean (as the dissent would hold) that the- prosecutor’s strike is racially motivated because he did not also strike a white juror who knows a witness but has no problem imposing the death penalty. The dissent would require the prosecutor to go only with his “best shot” in support of any strike, notwithstanding the fact that additional reasons make the particular juror a worse prospect than other jurors.