Kelly v. State , 209 Ga. App. 789 ( 1993 )

Pope, Chief Judge,

concurring specially.

I agree that the explanation offered by the prosecutor for the peremptory strike of the nurse who had retired because of disability was not suspect even though the juror stated there was nothing about his condition that would make it uncomfortable for him to sit through the trial. Despite the juror’s statement, since his condition made it impossible for him to work, I do not believe the prosecutor’s concerns about his stamina to sit on the jury were pretextual.

As to the juror who was struck because of an unstable work history, I do not believe the record shows purposeful discrimination. The dissenting opinion notes that several jurors who were not struck by the State were housewives or mothers who were not employed outside the home. In my opinion, it is not valid to compare a juror who is employed as a homemaker to one who is underemployed or who was previously employed but now unemployed. As further noted in the dissenting opinion, in addition to the juror who was struck for an unstable work history, four other jurors were not struck even though they responded that they were employed only part-time or had previously been employed but were currently unemployed. While these work histories might be comparable to that of the juror who was struck, the record does not show the race of these other jurors. Thus, the record is insufficient to support defendant’s argument that the prosecutor failed to offer a race-neutral reason for striking the juror in question. Accordingly, defendant has failed to carry his burden to prove the trial court erred. See Jefferson v. State, 206 Ga. App. 544 (6) (425 SE2d 915) (1992); Love v. State, 205 Ga. App. 27 (1) (421 SE2d 125) (1992).

I am authorized to state that Judge Andrews joins in this special concurrence.