Smith v. State

448 S.E.2d 179, 264 Ga. 449, 1994 Ga. LEXIS 762
Supreme Court of Georgia·Decided September 19, 1994·No. S94A0789·Published·Cited by 46 cases

Opinion

Carley, Justice.

Appellant was found guilty of murder and possession of a firearm during the commission of a felony. On appeal, the convictions were affirmed, but the case was remanded in order to permit the prosecutor to explain why nine black potential jurors had been peremptorily stricken and to allow the trial court to make findings under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Smith v. State, 263 Ga. 224, 226 (4) (430 SE2d 579) (1993). On remand, a hearing was conducted and the trial court found

that the explanation given by the [p]rosecutor for each of his peremptory challenges was racially neutral, legitimate, nondiscriminatory, related to the case tried and clear and reasonably specific. . . . [I]mproper racial motivation has not been demonstrated. . . .

It is from this order that appellant brings the instant appeal.

1. Appellant urges that a Batson violation exists because two black potential jurors were peremptorily stricken based, in part, upon their residence in public housing.

It is not undisputed that these two prospective jurors were peremptorily stricken simply because they were black residents of public housing. Compare Congdon v. State, 262 Ga. 683, 685 (424 SE2d 630) (1993) (wherein the prosecutor, in effect, conceded that “the venirepersons were struck for no reason other than that they were black citizens of Ringgold”). To the contrary, the prosecutor asserted that, without regard to the race of the two prospective jurors, he had elected to exercise peremptory strikes against them because they were [450] residents of a particular public housing project where gang activity was known to be most prevalent. The crimes with which appellant was charged were gang-related and the State’s case against appellant hinged upon the credibility of gang members. Thus, according to the prosecutor, he had determined that those prospective jurors, black or white, who lived in areas where gang activity was most prevalent were more likely to be prejudiced against the State’s witnesses who were gang members.

Therefore, entirely unlike Congdon v. State, supra at 685, there was no actual showing here that

[t]he State’s justification for the exercise of its peremptory challenges was the result of a stereotypical belief that all black . . . residents [of a particular neighborhood] were biased against the [State’s witnesses].

Instead, the actual showing was that the State’s justification for the exercise of its peremptory strikes was the result of a racially-neutral belief that all residents, black or white, of a particular neighborhood might be biased against the State’s witnesses. The prosecutor simply inferred that the two prospective jurors were more likely to have had direct exposure to gang activity than someone who did not live in their neighborhoods. “While this conclusion may or may not be empirically correct, we cannot say that it exhibits racially discriminatory intent as a matter of law.” United States v. Uwaezhoke, 995 F2d 388, 393 (II) (B) (3rd Cir. 1993).

Although the prosecutor’s asserted reason for exercising the peremptory strikes was racially neutral and not inherently discriminatory, it nevertheless has been recognized that basing the exercise of a peremptory strike upon the neighborhood wherein a prospective juror resides is “ ‘particularly problematic (raising) serious concerns about the potential for cloaking discriminatory motives in only marginally neutral justifications.’ [Cit.]” Congdon v. State, supra at 685.

The disproportionate impact of a prosecutor’s criteria for excluding black prospective jurors . . . does not compel a finding that the [S]tate’s motives were discriminatory. [Cit.] . . . Nonetheless, courts should be very wary of allowing gang membership to be an acceptable ground for striking jurors, particularly absent any gang involvement in the offense. This reasoning is particularly suspect when black defendants are being tried for an offense against a white victim.

Williams v. Chrans, 957 F2d 487, 490 (I) (7th Cir. 1992).

In this case, however, there was a direct connection between gang involvement and the offenses for which appellant was being tried and, [451] in addition, appellant, his co-defendant, the victim and the key witnesses are black. Moreover, here: There is no contention that the two black prospective jurors who were peremptorily stricken did not live in neighborhoods where gang activity is prevalent; There is no contention that whites who lived in neighborhoods where gang activity is prevalent were not peremptorily stricken; Five black jurors actually served on the jury and one of the alternate jurors was black; The State did not use all of its peremptory strikes. Having considered all of these factors,

[t]he trial judge in this case chose to believe the prosecutor’s race-neutral explanation for striking the two jurors in question, rejecting [appellant’s] assertion that the reasons were pretextual. [Under] Batson, . . . the trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal. . . .

Hernandez v. New York, 500 U. S. 352, 364 (111 SC 1859, 114 LE2d 395) (1991). Indeed, under Batson, a trial court’s finding must be affirmed “unless it is clearly erroneous.” Minor v. State, 264 Ga. 195, 197 (5) (442 SE2d 754) (1994).

The trial court’s findings cannot be held to be clearly erroneous and we must, therefore, affirm the trial court’s determination “that the State’s explanation was race[-]neutral, particularly where much of the evidence to be presented at trial involved gangs and gang activity.” People v. Williams, 625 NE2d 144, 150 (Ill. App. 1993). See also United States v. Uwaezhoke, supra; Williams v. Chrans, supra; People v. Johnson, 578 NE2d 1274, 1284-1287 (Ill. App. 1991).

2. Several black potential jurors were peremptorily stricken based, in part, upon the location of their residence in the same general area as appellant’s residence, the State’s witnesses’ residences, or the scene of the crime.

Other courts have found peremptory challenges race-neutral where the challenges were based on the potential juror’s residence or employment being near the defendant’s or witnesses’ residences, or near the scene of the crime.

People v. Johnson, supra at 1285. Included among such “other courts” is our own Court of Appeals. Higginbotham v. State, 207 Ga. App. 424, 425 (3) (428 SE2d 592) (1993). Compare Congdon v. State, supra (wherein black potential jurors were peremptorily stricken based upon suspected prejudice arising solely from the location of their residences near that of the victim in an unrelated criminal investigation).

[452] In the instant case,

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Smith v. State, 448 S.E.2d 179, 264 Ga. 449, 1994 Ga. LEXIS 762 (Ga. 1994).

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