Mallory v. State

*633 Benham, Justice,

concurring.

While I agree completely with the majority’s judgment of reversal and with the reasoning leading to that judgment, my conviction that there was another reversible error at trial which should be addressed by this court compels me to write separately. That error occurred when the trial court accepted the prosecution’s explanation for peremptory strikes used to exclude four black members of the venire. 3

However, before addressing the state’s explanations of its use of peremptory strikes, there is a procedural issue which desperately needs to be addressed. In many cases coming to this court with a Bat- son 4 issue, including this case, no ruling is made by the trial court as to whether a prima facie case has been established under Batson. Nevertheless, the side whose peremptory strikes have been called into question is then encouraged to place its explanations on the record in the event it is determined at a later date that a prima facie case has been established.

The failure of a trial court to rule on the threshold issue of the establishment of a prima facie case under Batson can have serious consequences for the parties: the lack of a ruling may unintentionally minimize the importance of the issue and thereby either unnecessarily chill the enthusiasm and pursuit of the party raising the issue, or inadvertently lull into a sense of complacency the party against whom the allegation has been made and prevent a vigorous defense from being put forth. The better policy would be for the trial court to make a ruling on the prima facie issue before entertaining explanations and then, whether it finds a prima facie case was made or not, to allow explanations so that the record can be perfected. State v. Jones, 293 S. C. 54 ( 358 SE2d 701 ) (1987).

An unmistakable theme of inclusiveness as to jury service runs throughout Batson and its progeny, and in keeping with that theme, the trial courts are required to evaluate rigorously the explanations given for the exercise of suspect strikes. When it appears that the trial court has failed to analyze and has accepted at face value the explanations given, the appellate courts will undertake an independent analysis of the explanations to determine if they in fact comport with the Batson requirements of neutrality, relevancy, legitimacy and specificity.

In Gamble v. State, 257 Ga. 325 (5) ( 357 SE2d 792 ) (1987), this court discussed at some length the process of evaluating the prosecution’s explanations for the use of peremptory challenges:

*634 The proscription laid down in Batson is that a prosecutor may not strike a black juror solely because of his race, nor may he strike on the basis of an assumption which arises “solely from the jurors’ race,” nor may he strike “to exclude . . . veniremen from the petit jury on account of their race.” [Cit.]

The trial court’s findings are, of course, entitled to “great deference,” [cit.], and will be affirmed unless clearly erroneous.

However, “ ‘[r]ubber stamp’ approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson’s commitment to ‘ensure that no citizen is disqualified from jury service because of his race.’ ” [Cits.]

In order to rebut a prima facie case of racial discrimination in the exercise of peremptories, the prosecutor must explain each peremptory challenge of a black prospective juror. The explanation “need not rise to the level justifying exercise of a challenge for cause,” but it must be “neutral,” “related to the case to be tried,” and a “ ‘clear and reasonably specific,’ explanation of his ‘legitimate reasons’ for exercising the challenges.” [Cit.]

The explanation offered for striking each black juror 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.

A court charged with the duty of determining whether the prosecutor has rebutted a prima facie case may be less troubled by one relatively weak explanation for striking a black juror when all the remaining explanations are persuasive than where several of the prosecutor’s proffered justifications are questionable. Similarly, a weak prima facie case may be rebutted more readily than a strong one.

While this court should and does give deference to the trial court’s determination regarding the state’s exercise of peremptory strikes against members of a particular class, as in Gamble , we are not required to give such determination absolute deference.

My special concurrence in Hayes v. State, 261 Ga. 439 ( 405 SE2d 660 ) (1991), pointed out the need to “usher in an era of ungrudging acceptance of the basic tenet of Batson, that is, that the integrity of the jury selection process, and thereby the entire justice system, is enhanced greatly when fitness for jury service is not determined by *635 race.” It is the pursuit of this goal that compels me, while giving due deference to the trial court’s determination, to make a rigorous examination of the explanations given by the state for its exercise of peremptory strikes, especially when those strikes appear to fall disproportionately heavily on a particular class.

Because this is a relatively new area of the law for trial judges, this court should undertake to provide the trial courts with some analytical framework for evaluating the explanations offered for the exercise of suspect peremptory strikes. Therefore, in determining whether the state has articulated some legitimate, non-discriminatory reason for its exercise of peremptory strikes, the trial court should be mindful of the circumstances which gave rise to the Batson decision, and should take into consideration many factors, including but not limited to the following: (1) susceptibility of the particular case to racial influences; (2) statements made during voir dire; (3) race of victim and primary witnesses; (4) the prosecutor’s demeanor; (5) patterns, if any, of discrimination by the prosecutor’s office [lack of a pattern alone should not exempt the explanation from rigorous scrutiny]; and (6) the method of questioning and treatment of similarly situated jurors of a different race. State v. Butler, 731 SW2d 265, 269 (Mo. App. 1987). See also Ex parte Branch, 526 S2d 609, 623 (Ala. 1987), and State v. Slappy, 522 S2d 18 (Fla. 1988). In addition, when viewing the explanations offered in defense of the suspect strikes, I find instructive the suggestion in Horton v. Zant, _ F2d _ (11th Cir. 1991) (Case No. 90-8522, decided September 3, 1991, slip op. p. 22) that

in evaluating [the] rebuttal it is appropriate to keep in mind that “testimony from the alleged discriminators should be viewed with a great deal of judicial scrutiny.” [Cit.]

Looking first at the explanations offered for other strikes, it should be noted that the trial court appropriately rejected the explanations the prosecution gave for striking two black prospective jurors. The weakness of those explanations reduces the persuasiveness of the explanations offered for the four strikes at issue. Gamble, supra.

Two reasons were given for exercising a peremptory challenge to remove juror Miller. The first was that she “most likely” had discussed Mallory with co-workers who were his patients. The record reveals, however, no evidence that Miller had engaged in a conversation with the co-workers at question, only that she heard someone mention being a patient of Mallory’s. In Gamble , this court held that the fact that a juror stated that he knew the district attorney did not support an inference that the witness had been involved in a child support case and would be biased against the district attorney. Simi *636 larly, Miller’s testimony that she heard others say that appellant was their doctor did not raise the inference that Miller had discussed appellant with those co-workers and was, therefore, not impartial. The second reason for striking Miller was that she looked at the defendant’s table “as if for feedback for her response” and that she smiled at defense counsel as she left the courtroom. Since the voir dire record did not preserve facial expressions or gestures, and the trial court refused to permit defense counsel to either question the prosecutor or present other evidence on the issue, there is no support in the record for the State’s bald assertion concerning the juror’s conduct.

Juror Gary, a nurse, was stricken from the jury because she worked in the “medical profession” and might be sympathetic toward appellant because he is a doctor. However, the record showed that several white prospective jurors were not excluded for their connections to the medical profession: one is an administrator of a nursing home; another is a billing clerk at a hospital; another is a pathology laboratory assistant and an emergency medical technician, married to a physician’s secretary; and another is a social worker with regular substantial contact with the medical and mental health communities, married to a clinical psychologist.

The explanation for striking juror Killen from the jury was that he had been convicted of two misdemeanor offenses and that he stated that law enforcement people were not inclined to tell the truth. One of those convictions was a 1967 DUI conviction; three white jurors who were accepted by the State had DUI convictions in 1979, 1981, and 1986. Killen’s remark concerning the credibility of law enforcement personnel was misstated by the prosecutor: Killen actually stated that he did not hold the opinion that law enforcement officers are more inclined to tell the truth than anyone else, a position shared during voir dire by several white jurors who were not peremptorily challenged.

Juror Lester was challenged on the ground that he knew someone who attended Shiloh Baptist Church and had, therefore, been exposed to the preaching of a minister who was active in raising funds for the defense. That explanation is as far-fetched as the similar explanation found suspect in Gamble , that one of the jurors lived near a church whose minister held views on the case different than those of the prosecutor.

Here, as was the case in Gamble ,

[s]everal of the proffered explanations were suspect. In some instances, similarly situated white jurors were not challenged. Other reasons were not related to the case on trial. Some jurors were excluded on questionable premises. [Id. at 329-330.]

*637 Decided November 1, 1991.

Martin Brothers, John R. Martin, Carl A. Bryant, for appellant.

Edward D. Lukemire, District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, for appellee.

Applying the standards enunciated in Gamble to the explanations offered in the present case for the peremptory challenges used to remove four black jurors should yield the same result reached in Gamble , a new trial. I would, therefore, reverse the conviction on that ground.

The trial court did reject the explanations offered for the use of peremptory strikes against two black jurors.

Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).