Avery v. State , 174 Ga. App. 116 ( 1985 )

Pope, Judge.

Lacey Avery, Jr. was convicted of burglary and sentenced to serve fifteen years. He now appeals enumerating three errors.

1. In his first two enumerations of error Avery contends he was denied due process of law under both the Federal and State Constitutions because the State was allowed to use its peremptory strikes to exclude blacks from the petit jury. This argument has been decided adversely to Avery in Jordan v. State, 235 Ga. 732 (1) (222 SE2d 23) (1975). We are not persuaded that the holding of Taylor v. Louisiana, 419 U. S. 522 (95 SC 692, 42 LE2d 690) (1975), alters the holding in Jordan. In Jordan, the Supreme Court followed the holding of Swain v. Alabama, 380 U. S. 202 (85 SC 824, 13 LE2d 759) (1965). The Supreme Court of Illinois in People v. Williams, 97 Ill.2d 252 (454 NE2d 220) (1983), was faced with a challenge identical to that presented here. Like Georgia, Illinois followed the rule in Swain. “We consider that the authority of Swain was not lessened because of the recognition of a sixth amendment fair-cross-section requirement in Taylor v. Louisiana, [supra]. The court in Taylor held that it is fundamental to the sixth amendment right to a jury trial that the selection of a petit jury be from a representative cross section of the community. The issue, as the court put it, was, ‘whether the presence of a fair cross section of the community on venires, panels, or lists from which petit juries are drawn is essential to the fulfillment of the Sixth Amendment’s guarantee of an impartial jury trial in criminal prosecutions.’ [Cit.]

“There was no retreat in the Taylor opinion from the view that it is an essential part of our system of trial by an impartial jury that both sides be allowed in particular cases to exercise peremptory challenges on any ground they select. It appears that the complaint addressed in Taylor is the systematic exclusion of a group from the jury system, not from any particular jury. This is in harmony with the suggestion in Swain that the systematic exclusion of blacks by peremptory challenges in case after case regardless of the particular circumstances involved would raise a constitutional issue. [Cit.] Moreover, the limited character of the Taylor holding is clear from the following statement, which appears at the conclusion of the opinion: ‘It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition (citation); but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.’ [Cit.]” People v. Williams, supra at 278-79 (454 NE2d, supra at 232). We find the analysis in Williams persuasive. The enumerations are without merit.

2. Nor do we find merit in Avery’s contention that the trial court erred in allowing the State to introduce into evidence a photograph during cross-examination of Avery. The photograph was used to impeach Avery’s claim that he suffered no cuts at the time of the burglary. Without question, the State could have waited until after questioning Avery and introduced the photograph into evidence on rebuttal. See Walker v. Walker, 14 Ga. 242 (5) (1853). However, the order of proof is within the discretion of the trial court and will not be disturbed absent abuse. Brown v. State, 140 Ga. App. 198 (1) (230 SE2d 349) (1976). We find no abuse.

Judgment affirmed. Banke, C. J., concurs.

Benham, J., concurs specially.