Opinion
A97A0098.
DECIDED MARCH 6, 1997.
Armed robbery, etc. Fulton Superior Court. Before Judge Tusan.
J. Robert Joiner, for appellant. Lewis R. Slaton, District Attorney, Jamie L. Mack, John C. Culp, Assistant District Attorneys, for appellee.
David Leeks appeals his convictions for armed robbery and aggravated assault, crimes he committed at the age of 16. His challenges to the sufficiency of the evidence and to the superior court's jurisdiction over his aggravated assault charge are without merit. However, because the trial court failed to analyze his peremptory strike of a white juror under the standard set forth in Purkett v. Elem, 514 U.S. 765 ( 115 SC 1769, 131 L.Ed.2d 834) (1995), we reverse his conviction for a new trial.
1. Leeks contends the evidence was not sufficient to support the conviction under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979). The evidence is viewed with all reasonable inferences drawn, and all issues of weight and credibility resolved, in favor of the verdict. Id. at 319; Patterson v. State, 181 Ga. App. 68, 69 (2) ( 351 S.E.2d 503) (1986). We do not address his allegations concerning the weight of the evidence, as those are properly directed to the trial court alone. Stinson v. State, 185 Ga. App. 543, 544 ( 364 S.E.2d 910) (1988). The appellate court does not have the same discretion as does the trial court in approving a verdict. Only in the absence of evidence to support the verdict may the appellate court set aside a verdict approved by the trial court. OCGA § 5-5-21; Gledhill v. Brown, 44 Ga. App. 670 ( 162 S.E. 824) (1932).
The evidence allowed the jury to determine that on December 12, 1994, Leeks and another individual entered without permission an apartment occupied by the victim. Leeks' companion demanded money from the victim, and Leeks pulled a gun and threatened to shoot the victim. The victim and Leeks' accomplice began fighting, after which Leeks shot the victim in the wrist. The victim testified that personal property including his wallet containing $40, as well as his car keys, were taken from him by Leeks' associate. This evidence, construed in a light most favorable to the verdict, more than sufficiently supports the conclusion that Leeks either directly committed or was a party to the crimes of aggravated assault and armed robbery. Jackson v. Virginia, supra; see OCGA § 16-2-20 (parties to a crime).
2. In his second enumeration, Leeks contends that because he was a juvenile at the time of these offenses, the superior court lacked jurisdiction to convict him of aggravated assault. Although Leeks acknowledges the superior court's jurisdiction over a juvenile charged with armed robbery pursuant to OCGA § 15-11-5 (b) (2) (A), he claims the superior court's jurisdiction does not extend to the aggravated assault charge because this offense is not one of the felonies designated in that statute. The Supreme Court rejected this same argument in Reynolds v. State, 266 Ga. 235, 236 (2) ( 466 S.E.2d 218) (1996), in which it held the superior court's jurisdiction over felonies designated in OCGA § 15-11-5 (b) (2) (A) extends to offenses committed as "part of the same criminal transaction as the two greater offenses." As the aggravated assault in this case was committed as part of the same criminal transaction as the greater offense of armed robbery, this enumeration of error is without merit.
3. The trial court erred, however, in upholding the State's challenge to Leeks' peremptory strike of juror number 4, a white male. Leeks is black. "To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory [or gender-biased] manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of . . . discrimination; the burden of production shifts to the proponent of the strike to give a race [and gender] neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent." (Footnotes omitted.) Chandler v. State, 266 Ga. 509, 510 (2) ( 467 S.E.2d 562) (1996).
The State challenged Leeks' use of peremptory strikes against ten whites, and the trial court accepted as race and gender neutral each explanation Leeks' attorney gave for nine of those strikes. Therefore, we need not determine whether the State made a prima facie case of discrimination, as that issue is moot. See Lewis v. State, 262 Ga. 679, 680 (2) ( 424 S.E.2d 626) (1993) (once trial court requires proponent of strike to give neutral explanations, preliminary issue of prima facie case becomes moot).
With regard to juror number 4, Leeks' attorney explained that his co-counsel had seen juror number 1, a white female real estate agent, give a business card to juror number 4 and stated he believed "they were possibly having a business-type connection there, and I didn't want them on the jury together. We accepted [juror number 1] and didn't care for the other." The trial court ruled, "The court does not accept the explanation for juror number 4" and placed this juror back on the panel.
The explanation Leeks' attorney gave for striking juror number 4 was, on its face, neutral as to both race and gender. The explanation expressed concern that a potential business relationship among two jurors might influence the jurors' ability to deliberate impartially. After Leeks' attorney offered this race and gender neutral explanation, the trial court was bound to accept the explanation. See Chandler, supra and Purkett, supra. "[T]he proponent of the strike is not required to enunciate an explanation that is persuasive, or even plausible," and the trial court therefore erred in rejecting Leeks' attorney's explanation. (Punctuation omitted.) Jackson v. State, 265 Ga. 897, 898 (2) ( 463 S.E.2d 699) (1995), citing Purkett, supra.
As Presiding Judge Pope noted in his special concurrence to Parker v. State, 219 Ga. App. 361, 364 ( 464 S.E.2d 910) (1995), it appears Purkett partially overruled Batson v. Kentucky, 476 U.S. 79, 88, n. 20 ( 106 SC 1712, 90 L.Ed.2d 69) (1986), which required explanations for peremptory challenges to be clear, reasonably specific, and related to the case at hand.
The trial court may have determined, prematurely, that the attorney's explanation was pretextual. In fact, it appears the trial court may have questioned the credibility of the explanation Leeks gave for striking juror number 4. But as the supreme court stated in Jackson, "[a]ssuming the trial court recognized [Leeks'] explanation as being facially race [and gender] neutral, but refused to accept it as race [and gender] neutral because it concluded that the explanation was pretextual, the court misapplied Batson jurisprudence. Only after the opponent of a strike establishes a prima facie case of racial [or gender] discrimination (step one), and the proponent thereof tenders a race [or gender] neutral explanation (step two), should the trial court evaluate the persuasiveness of the justification for exercising the strike and determine whether the opponent of the strike has carried his burden of proving purposeful discrimination (step three)." (Punctuation omitted.) Id. at 899.
As the Jackson court held, the Purkett analysis requires the trial court to accept the given explanation so long as it is not itself discriminatory. Id. at 899. A trial court may not simply reject the explanation on grounds that it is not credible or that it is whimsical. Rather, it must accept the explanation if it is facially neutral, then determine whether the challenger can carry his burden of showing the given explanation is merely pretext for discrimination. Id. "Essentially, the trial court prematurely evaluated the persuasiveness of [Leeks'] explanation, thereby impermissibly placing the ultimate burden of persuasion upon the proponent of the strike." Id.; see also Cooper v. State, 220 Ga. App. 531, 533 ( 469 S.E.2d 790) (1996). As in Jackson, we must therefore find the trial court's ruling clearly erroneous. In this regard, see also Malone v. State, 225 Ga. App. 315 (___ S.E.2d ___) (1997); O'Neal v. State, 226 Ga. App. 224 (___ S.E.2d ___) (1997). Because the court's ruling "forced [Leeks] to trial with an illegally constituted jury," this case is reversed for a new trial. Jackson, supra at 900; Cooper, supra at 533.
Judgment reversed. Pope, P.J., and Johnson, J., concur.