Thomas v. State

430 S.E.2d 768, 208 Ga. App. 367, 93 Fulton County D. Rep. 719, 1993 Ga. App. LEXIS 490

Opinions

McMurray, Presiding Judge.

Defendant was tried before a jury and convicted on two counts of armed robbery, two counts of violating Georgia’s Firearms and Weapons Act and one count of aggravated assault. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in failing to grant his motion to assemble another jury panel, arguing that the State exercised six peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69).

Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41. Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779); Shaw v. State, 201 Ga. App. 438, 439 (1) (411 SE2d 534). In the case sub judice, voir dire was not taken down, but the State’s attorney stated that he used eight of his ten peremptory strikes to exclude prospective black jurors; that he used two peremptory strikes to exclude prospective black alternate jurors; that the panel comprised twenty-seven white persons and twenty-seven black persons; that a white female and a black male were struck for cause and that the jury was comprised of six white jurors, six black jurors and two black alternate jurors.¹ The State’s attorney then explained the use of each of his peremptory strikes. These recollections do not provide a basis for appellate review as “[c]olloquies between court and counsel and argument of counsel, though included in the record, are not competent evidence of the facts observed therein, and do not suffice to make a proper record of facts required to establish a prima facie case of discrimination. National Assn. &c. People v. Pye, 96 Ga. App. 685, 686 (101 SE2d 609) (1957); Johns v. State, 166 Ga. App. 656, 657 (305 SE2d 405) (1983).” Shaw v. State, 201 Ga. App. 438, 439 (1), 440, supra. Consequently, since there is no amendment or supplement to the record to reflect the necessary facts pursuant to OCGA § 5-6-41 (f) or (g) and since there is no stipulation in the record as to facts pursuant to OCGA § 5-6-41 (i), defendant has not carried the burden to show by the record the facts necessary to prove a claim of racial discrimination. Shaw v. State, 201 Ga. App. 438, 439 (1), 440, supra. However, to the extent possible, we address defendant’s contention that the State’s reason for excluding panel member 11 (i.e., uncomfortable judging others) was arbitrary and that the State’s explanations for excluding panel members 8, 12, 20, 38 and 44 (i.e., unstable employment or no employment) are unbelievable because unemployed white panel members were not excluded by the State.

The record contains no stipulation pursuant to OCGA § 5-6-41 (i) supporting defendant’s claim that the State did not strike unemployed white panel members. Further, there is no amendment or supplement to the record pursuant to OCGA § 5-6-41 (f) or (g) reflecting the racial identity or employment status of any panel member. Nonetheless, the defendant (and apparently the dissent) relies on a document entitled, “Juror Biographical Data,” to support defendant’s claim that the State did not exclude unemployed whites from the panel. This reliance is misplaced. First, the “Juror Biographical Data” sheet does not list race.² Second, a party may not rely on allegations that are unsupported by evidence at trial or by the official record as supplemented pursuant to OCGA § 5-6-41. Daniel v. State, 170 Ga. App. 795 (3) (318 SE2d 218).

“The duty of deciding whether the defendant established intentional discrimination lies in the trial court. [Cit.] A trial court’s finding of purposeful discrimination is a finding of fact which must be given deference by an appellate court. Ordinarily, great deference should be given to such a finding since it ‘largely will turn on evaluation of credibility.’ [Cit.] ‘Thus, we may only reverse the trial judge’s determination that the prosecution’s peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous. [Cits.]’ [Cit.]” McCormick v. State, 184 Ga. App. 687, 688 (362 SE2d 472). See Gamble v. State, 257 Ga. 325, 326 (5), 327 (357 SE2d 792). In the case sub judice, the State’s attorney explained that he excluded panel member 8 because “he was unemployed and not in school at this particular time.” The State’s attorney explained that he struck panel member 12 because “she was unemployed [and because she was] seventy-three years old [and] demonstrated hearing problems.” The State’s attorney explained that he struck panel members 20 and 38 because these panel members had unstable work histories, i.e., they could not hold a job. The State’s attorney explained that he struck panel member 44, an alternate juror, because she “was unemployed, had been employed for about a year prior to that, claims she did private duty nursing but there is nothing in her educational data, that would be eleven years in school, to indicate that any of that was in any way skilled or such that would offset her irregular unsteady employment history.” The State’s attorney explained that he excluded panel member 11 because “she told defense counsel that she was not comfortable judging others due to her beliefs.” These explanations are concrete, tangible and race neutral. Davis v. State, supra. Further, there is nothing in the trial transcript or record indicating that the State’s explanations were not neutrally applied. Compare Ford v. State, 262 Ga. 558, 559 (3) (423 SE2d 245). Consequently, we find no abuse in the trial court’s finding that the State gave “adequate nonracial reasons for selection of the jury. ...”

2. Defendant contends the trial court erred in allowing the State to introduce similar transaction evidence before offering evidence concerning the charges contained in the indictment. However, defendant failed to raise this issue at trial. He therefore may not complain of it for the first time on appeal. Shearer v. State, 259 Ga. 51, 52 (6) (376 SE2d 194).

Judgment affirmed.

Birdsong, P. J., concurs. Pope, C. J., Andrews and Johnson, JJ., concur specially. Beasley, Cooper and Blackburn, JJ., dissent.

Footnotes

1

The State’s attorney also pointed out that defense counsel used 18 of 21 strikes to exclude prospective white jurors. Defense counsel did not challenge this statement. However, he responded that “we can select who we want to select without answering to anyone at this point.” This is not an accurate assessment. “[T]he U. S. Supreme Court made it clear in Georgia v. McCollum, 505 U. S.__(112 SC 2348, 120 LE2d 33) (1992), that defendants have no more right to discriminate racially in the exercise of their peremptory challenges than prosecutors. . . .” Davis v. State, 263 Ga. 5, 7 (10), fn. 3 (426 SE2d 844).

2

The “Juror Biographical Data” sheet lists 54 names and includes spaces for identification of address, occupation, employment, date of birth, home and business telephone numbers, county residence, years of education, prior jury service and marital status.