Weems v. State

416 S.E.2d 84, 262 Ga. 101, 92 Fulton County D. Rep. 8, 1992 Ga. LEXIS 248

Opinions

Weltner, Presiding Justice.

Glen Weems shot and killed Terrell Weaver with a handgun and shot Jairus Sims, Nikita Welch, and Roshane Favors. He was convicted of felony murder and three counts of aggravated assault. He was sentenced to life imprisonment and a term of years.¹

1. Considered in the light most favorable to the verdict, the evidence was that on November 12, 1989, Weems was involved in a dispute over drugs, and that he later sought revenge by firing several shots from a pistol at a group of people outside an Atlanta residence as he drove by the group in his vehicle. Weems’ handgun killed seven-year-old Weaver, and wounded two-year-old Welch, ten-year-old Favors, and seventeen-year-old Sims. We find that a rational trier of fact could have found beyond a reasonable doubt that Weems was guilty of the felony murder and the three aggravated assaults. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. (a) Weems’ first enumeration of error is that the state violated Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), by exercising its peremptory strikes in a discriminatory manner.

Twenty-five of the original sixty jury panel members (42 percent) were black. After 4 jurors were excused for cause, 22 (39 percent) of the remaining 56 members of the panel from which the trial jury was selected, were black. The state exercised all ten of its peremptory strikes against black jurors. Of the twelve members of the trial jury, seven jurors (58 percent) were black.

The trial court heard explanations relative to striking black jurors, but did not make a finding as to whether the strikes were racially neutral. Rather, the trial court found that a prima facie case had not been made because (as we understand it) the percentage of blacks on the jury was greater than the percentage of blacks in the array.

(b) The action of the trial court would be consistent with the “determinative” aspects of Batson.2 However, following Batson and our interpretation of it in Aldridge v. State, 258 Ga. 75 (365 SE2d 111) (1988),³ there have been two developments that cast some question upon the prima facie requirement.

(i) The first is the holding in Edmonson v. Leesville Concrete Co., 500 U. S. __ (111 SC 2077, 114 LE2d 660) (1991), which indicates that a juror has a right not to be excluded (whether or not the strike was “determinative”) on a racial basis by a racially motivated strike.

[I]n a civil trial, exclusion on account of race violates a prospective juror’s equal protection rights. [Id., slip opinion at 4578.]

(ii) Second, in Tharpe v. State, 262 Ga. 110 (416 SE2d 78) (1992) we stated:

It can be argued that explanations by the state as to the striking of black jurors — who allegedly make minor mistakes on the jury questionnaire; or show signs of immaturity; or demonstrate certain aspects of eye contact — reflect certain stereotypical attitudes as to particular groups. Any such explanations should be given additional scrutiny by the trial court before they are found acceptable. [Id., slip opinion at p. 112.]

3. Because of these two developments⁴ and of the prosecution’s strikes, we remand the case so that the trial court may apply the “additional scrutiny” aspect of Tharpe in making a finding as to whether the strikes were racially neutral.

4. We have considered Weems’ other claims of error. There was no error in the trial of the case that warrants a new trial, or other substantive relief.

Judgment affirmed and case remanded for hearing.

All the Justices concur, except Benham and Sears-Collins, JJ., who concur specially; Bell and Fletcher, JJ., who dissent as to Divisions 2 and 3, and to the remand.

Footnotes

1

The crimes were committed on November 12, 1989, and Weems was indicted on April 10, 1990. On August 31, 1990, a jury returned the guilty verdict, and on November 19, 1990, he was sentenced. A motion for new trial was filed on November 30,1990. The court reporter certified the trial transcript on October 3, 1990. On May 17, 1991, the trial court denied Weems’ motion for new trial, and on June 12,1991, he filed his appeal. The clerk of the trial court certified the record on July 24, 1991, and on July 26, 1991, the appeal was docketed in this Court. The appeal was orally argued on October 15, 1991.

2

In Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987), we stated:

A defendant’s prima facie showing of discrimination may be rebutted by proof “either that discriminatory purpose was not involved or that such purpose did not have a determinative [discriminatory] effect. [Cits.]” Duren v. Missouri, 439 U. S. 357, 368 (fn. 26) (99 SC 664, 58 LE2d 579) (1979). [Id. at 326.]

3

There we stated:

The question then is whether this statistical data impacts upon the raising of the inference necessary to dictate a prima facie case of discrimination. We recognize the use of the phrase “other relevant circumstances” in Batson appears in a sentence dealing with an inference of racial motive. However, we also note that this inference is one which must lead to the result of discrimination. The result of the striking process in this case is interesting. ... [A] net increase in the percentage of black persons occurred in both the jury of twelve and the alternates upon completion of the exercise of the peremptory strikes by each party.

Deciding cases through the use of raw numbers carries with it inherent dangers and possibilities of illogical or unjust results. We do not believe the U. S. Supreme Court intended to lead the courts into this kind of hazard.... [T]he larger question is whether [the state’s use of its strikes] led to a prima facie case of discrimination. Viewing the resulting composition of the jury as an “other relevant circumstance,” we cannot hold that it does. [Id. at 79.]

4

Additionally, in State v. McCollum, 261 Ga. 473 (405 SE2d 688) (1991) we declined (by a vote of 4-3) to impose upon the defendant an obligation to cast racially neutral strikes. Subsequently, certiorari was granted in the United States Supreme Court in this case, 112 SC 370 (1991), and argument has been heard. The matter is now awaiting disposition.