McGlohon v. State , 228 Ga. App. 726 ( 1997 )

492 S.E.2d 715 (1997) 228 Ga. App. 726

McGLOHON
v.
The STATE.

No. A97A0924.

Court of Appeals of Georgia.

October 3, 1997.

Zipperer & Lorberbaum, Alex L. Zipperer, Eric R. Gotwalt, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.

BIRDSONG, Presiding Judge.

Joel M. McGlohon appeals his convictions of aggravated assault and aggravated battery. He contends the trial court erred by setting aside two of his peremptory jury strikes and reseating two jurors previously challenged, and by failing to charge on the lesser included offense of battery in violation of OCGA § 16-5-23.1. McGlohon also contends his trial defense counsel was ineffective for failing to request a charge on this lesser included offense.

McGlohon, covered in blood, was apprehended by police who were responding to cries for help from a woman who had been physically attacked. Both McGlohon and the woman testified that they had been engaged in an extramarital affair and that one of them decided to break it off. The woman testified that it was her decision, but McGlohon testified that it was his. In any event, the woman testified that as she walked McGlohon to his car, he suddenly attacked her, stabbing her with a knife and hitting her. She testified that after she was knocked to the ground, McGlohon continued his attack by hitting her in the face while she was still on the ground. Medical personnel testified that she received serious injuries to her face and that she continues to suffer nerve damage. Held:

1. The transcript shows that after McGlohon exercised his peremptory challenges, the State invoked State v. Mayweather, 262 Ga. 727, 425 S.E.2d 659 to challenge McGlohon's challenge of several potential women jurors, and after considering McGlohon's explanation, the trial court overruled the challenges as to two jurors. McGlohon alleges that the trial court erred by disallowing these peremptory challenges.

"In J.E.B. v. Alabama, 511 U.S. [127], 143-146, 114 S.Ct. 1419, 1429-1430, 128 L.Ed.2d 89 (1994), the United States Supreme Court advanced its holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to prevent litigants from exercising peremptory jury strikes based upon gender. The Equal Protection Clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender as well as race. See Tedder v. State, 265 Ga. 900, 901(2), 463 S.E.2d 697 (1995); Jackson v. State, 220 Ga.App. 98, 469 S.E.2d 264 (1996)." Herrin v. State, 221 Ga.App. 356, 357, 471 S.E.2d 297. The same standards used for reviewing claims of race discrimination are used for gender discrimination claims. Id. Batson requires a three-step process for evaluating these claims: After a prima facie showing that the challenges were used on the basis of gender, the party exercising the challenge must then articulate a gender neutral explanation for the challenge, and then the trial court must determine whether the party alleging the discrimination proved purposeful discrimination. Kelly v. State, 209 Ga.App. 789, 790(1), 434 S.E.2d 743. In this case, McGlohon used all of his 13 strikes against female potential jurors. Therefore, the trial court properly required his counsel to explain the basis for his strikes.

In responding, McGlohon's burden was to show that his peremptory strikes were gender neutral, related to the case to be tried, and clear and reasonably specific. See Berry v. State, 263 Ga. 493, 494, 435 S.E.2d 433. Further a defendant may strike "from mistake, or from ignorance, or from idiosyncrasy" (Gamble v. State, 257 Ga. 325, 326(2), 357 S.E.2d 792), and he may strike for all sorts of consequential or inconsequential reasons, but he may not strike on the basis of gender. When the proponent of the strike offers a purported gender-neutral explanation, there is no requirement "to enunciate ``an explanation that is persuasive, or even plausible.'" Jackson v. State, 265 Ga. 897, 898, 463 S.E.2d 699. A neutral explanation is one based on something other than the gender of the juror, and if discriminatory intent is not inherent in the explanation, the reason offered will be deemed gender neutral. Id. At the final stage of a Batson inquiry, the ultimate burden of persuasion regarding motivation rests with, and never shifts from, the opponent of the strike. Id. at 899, 463 S.E.2d 699. At the final stage, "``implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.'" Id.

In this case, McGlohon's counsel explained his challenge of one of the jurors, "one reason, because they had no children. I know that's a reason. Another reason is because they just moved down here, they hadn't been down here too long.... I thought she was too old. I didn't like her being 70 years old." In regard to the other juror he stated, "I struck her, Mrs. Gross, because of the age difference between she [sic] and her husband. And she also has somebody in journalism and I don't particularly hanker for it. And she also works for Advantage Health Care over at Candler Hospital and she had some knowledge of nursing that we voir dired on."

A disparity in the ages of the prospective juror and the appellant can be a gender-neutral explanation which was related to the case being tried since the potential juror might consciously or unconsciously identify with the party/victim closer in age to the juror's own age. Strozier v. Clark, 206 Ga.App. 85, 87, 424 S.E.2d 368; Bess v. State, 187 Ga.App. 185, 186-187, 369 S.E.2d 784. Age, however, was only one of the reasons offered for this strike. McGlohon also asserted that he struck this woman because she just moved to the area when the record showed that she had lived in the area for 17 years, and McGlohon retained male jurors who had lived in the area for less time. In regard to the other strike that was reversed, McGlohon stated that he based his strike, in part, because she had a knowledge of nursing, but the record shows that McGlohon also retained a male juror who also had such knowledge. Here considering the number of McGlohon's strikes against women, the fact that McGlohon proffered a "laundry list" of reasons for almost every strike, only some of which were facially neutral, and the indication that counsel was engaging in post hoc rationalization, the trial court's decision was well supported by the record.

As a trial court's findings on a Batson issue are entitled to great deference and will be affirmed unless clearly erroneous (Higginbotham v. State, 207 Ga.App. 424, 426, 428 S.E.2d 592), we must affirm the trial court.

2. McGlohon also contends the trial court erred by refusing to charge on the lesser included offense of battery (OCGA § 16-5-23.1) on Counts 2 and 3. As the record shows that McGlohon did not request such a charge, we start from the proposition that "[a] trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge." Mosley v. State, 257 Ga. 382, 383(2), 359 S.E.2d 653. "It is not reversible error for the trial court to fail to give a request to charge that is not submitted in writing by the complaining party. Bullock v. State, 202 Ga.App. 65, 413 S.E.2d 219 (1991)." American Assn. of Cab Cos. v. Egeh, 205 Ga.App. 228, 231(5), 421 S.E.2d 741. Therefore, there was no error in failing to give these charges.

3. McGlohon also alleges that his defense counsel was ineffective because he did not request charges on the lesser included offense of battery on counts 2 and 3. "It is a well established rule that any allegation of a violation of the right to counsel should be made at the earliest practicable moment. See Smith v. State, 255 Ga. 654, 341 S.E.2d 5 (1986). Because an attorney cannot reasonably be expected to assert or argue his or her own ineffectiveness, claims of ineffective assistance of counsel are often properly raised for the first time in a habeas corpus petition. However, in Thompson v. State, 257 Ga. 386, 359 S.E.2d 664 (1987), we held that where new counsel appointed or retained after the trial amends the motion for new trial without raising the issue of ineffective assistance, the claim was waived. In Johnson v. State, 259 Ga. 428, 383 S.E.2d 115 (1989), we held that the claim may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel. The rule is consistent: New counsel must raise the ineffectiveness of previous counsel at the first possible stage of post-conviction review." White v. Kelso, 261 Ga. 32, 401 S.E.2d 733. As this record shows that McGlohon's appellate counsel were not appointed when there was an opportunity to raise this issue in the trial court, the case must be remanded to the trial court for consideration of this issue.

Judgment affirmed in part and remanded.

RUFFIN, J., concurs.

ELDRIDGE, J., concurs specially.

ELDRIDGE, Judge, concurring specially.

I concur in the majority's judgment. I write to clarify the standard of review with regard to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in Division 1. Much has been written regarding Batson and Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), analysis since 1995 when the Supreme Court of Georgia authored Jackson v. State, 265 Ga. 897, 463 S.E.2d 699 (1995), the case upon which the majority relies in its analysis of a trial court's step three inquiry into the proffered explanations for the use of peremptory strikes.

Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), which Jackson discussed in detail, has come to be seen in relation to its purpose, which was an explanation of appellate court procedure when reviewing Batson/McCollum challenges on appeal; Purkett was not a directive for the trial court in its handling of a Batson/McCollum step three inquiry at the trial level. Purkett, supra at 769-770, 115 S.Ct. at 1771-1772, 131 L.Ed.2d at 840; Gardner v. State, 225 Ga. App. 427, 430, 483 S.E.2d 912 (1997). Thus, while Purkett held that "a legitimate reason is not a reason that makes sense" to the appellate court and that there is no requirement to "enunciate an explanation that is persuasive or even plausible" to an appellate court, such holding was never meant to apply to a trial court. Purkett, supra at 769, 115 S.Ct. at 1771, 131 L.Ed.2d at 840; Gardner, supra at 430-433, 483 S.E.2d 912. A legitimate reason is one that does makes sense to the trial court and is plausible or persuasive to a trial court, whose duty it remains to determine that the proffered reason passes muster as "neutral, related to the case, clear and reasonably specific" based upon a myriad of factors to which an appellate court may not be privy through the record alone. Purkett, supra at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839-840; Batson, supra; Gardner, supra at 429-431, 434, 483 S.E.2d 912; see also Russell v. State, 267 Ga. 865, 867, 485 S.E.2d 717 (1997); Turner v. State, 267 Ga. 149, 476 S.E.2d 252 (1996); Greene v. State, 266 Ga. 439, 443(5), 469 S.E.2d 129 (1996); Tedder v. State, 265 Ga. 900, 901, 463 S.E.2d 697 (1995). Purkett in no way required a trial court in step three to accept explanations that are unpersuasive or implausible simply because they are neutral on their face, and such a requirement would fly in the face of the trial court's constitutional duty under Batson. Gardner, supra at 431, 483 S.E.2d 912; see also McKenzie v. State, 227 Ga.App. 778, 490 S.E.2d 522 (1997).

Further, the step three procedure of Batson/McCollum analysis on the trial court level has not been "collapsed" when the trial judge makes a decision regarding the plausibility of the striker's explanations without hearing further from the challenger/opponent of the strikes. "Once the explanation for the strikes has been proffered, the inquiry is properly framed for the trial court's determination." (Punctuation omitted.) Gardner, supra at 429, 483 S.E.2d 912, citing Greene, supra at 443, 469 S.E.2d 129; Turner, supra; McKenzie, supra; Jones v. State, 226 Ga. App. 428, 487 S.E.2d 62 (1997); Herrin v. State, 221 Ga.App. 356, 471 S.E.2d 297 (1996). There is no obligation in step three for a trial court to formally "deem" explanations gender or race neutral simply because the explanations may be neutral on their face. Regardless of their neutral aspect, if the striker's explanations appear implausible or unpersuasive to the trial court, the trial court may so find immediately following the proffered explanations and based upon the totality of the circumstances. McKenzie, supra; Scott v. State, 225 Ga.App. 729, 730, 484 S.E.2d 780 (1997); Gardner, supra at 428-429, 483 S.E.2d 912.

In addition, although "the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike," in step three the trial court may determine that such burden of persuasion is satisfied by the strength of the challenger/opponent's prima facie showing under step one. McKenzie, supra; Gardner, supra at 438, 483 S.E.2d 912 (use of all ten strikes to remove white jurors "was very persuasive indeed"); see also Lingo v. State, 263 Ga. 664, 665(1)(a), 437 S.E.2d 463 (1993) (trial court determines whether otherwise neutral explanations are "strong enough to overcome the prima facie case"); accord Ford v. State, 262 Ga. 558, 423 S.E.2d 245 (1992).

Also, regardless of whether the reasons are neutral on their face, the trial court may determine that the burden of persuasion is satisfied by, inter alia: (1) the strength of the prima facie showing in step one, and the trial court's disbelief of the proffered neutral explanations in relation thereto; (2) the trial court's determination that the neutral explanations themselves are unpersuasive or implausible; (3) the trial court's consideration of similarly situated jurors who were left unchallenged; (4) the trial court's knowledge of the one utilizing the strike in relation to the neutral explanations given; and/or (5) the trial court's knowledge of the community in relation to the neutral explanations given. Gardner, supra at 429, 483 S.E.2d 912, citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991), St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 914 (11th Cir.1993); McKenzie, supra, citing Hernandez, supra; St. Mary's Honor Center, supra. "In the typical peremptory challenge inquiry, the decisive question will be whether counsel's [otherwise] race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the [striker's] state of mind based on demeanor and credibility lies ``peculiarly within a trial judge's province.'" (Emphasis supplied.) Hernandez, supra at 365, 111 S.Ct. at 1869; McKenzie, supra; Gardner, supra at 428, 483 S.E.2d 912; Scott, supra at 730; Taylor v. State, 219 Ga.App. 475, 465 S.E.2d 473 (1995).

Instructive, too, is our Supreme Court's recent decisions in Greene v. State, 268 Ga. 47, 485 S.E.2d 741 (1997), and its predecessor, Greene, supra at 440(2), 469 S.E.2d 129 ("Greene I"). Although the referenced portions of these opinions deal with jury challenges under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), in death penalty cases, the Supreme Court's thorough discussion of the necessity for deference to a trial court's determinations with regard to factual matters during jury selection applies no less completely to a trial court's step three determinations under Batson/McCollum —in fact, the language echoes that of Batson/McCollum case law: "On review, an appellate court should not substitute its findings for those of the trial court. The conclusion that a prospective juror is disqualified for bias is one that is based upon findings of demeanor and credibility which are peculiarly within the trial court's province and such findings are to be given deference by appellate courts." Greene I, supra at 441, 469 S.E.2d 129.

Clearly a trial record alone cannot provide a legitimate basis from which to substitute an appellate court opinion for a trial court's factual/credibility findings in step three; this has been recognized in numerous recent decisions wherein Batson/McCollum issues were raised. Jones, supra at 430, 487 S.E.2d 62 ("[t]he trial court, unlike this Court, had the opportunity to view [the] prospective jurors"); McKenzie, supra at 780-781 ("the trial judge ... alone has the opportunity to observe the witnesses' testimony and evaluate their credibility"); Scott, supra at 731(1), 484 S.E.2d 780 ("the trial court can visually and auditorially observe the demeanor of both prospective jurors and counsel"); Gardner, supra at 434, 483 S.E.2d 912 ("a trial court's credibility determination under Batson/McCollum will often go beyond the mere words that accompany the record before the appellate courts"); see also Greene I, supra at 440, 469 S.E.2d 129, citing Wainwright, supra at 426, 105 S.Ct. at 853 (deference must be paid the trial judge because it is the trial judge "who sees and hears the juror").

Obviously, the evolution of Batson/McCollum jurisprudence has been ongoing since the Supreme Court's decision in Jackson. Based thereon, I concur with the majority's judgment because I cannot say that the trial court was clearly erroneous in choosing to disbelieve appellant's explanations. Appellant has not demonstrated error in the trial court's factual/credibility determination that appellant's explanations failed to overcome the prima facie case. Greene I, supra at 442, 469 S.E.2d 129; Turner, supra at 151, 476 S.E.2d 252; McKenzie, supra; Scott, supra at 731, 484 S.E.2d 780; Jones, supra; Gardner, supra at 438, 483 S.E.2d 912; Herrin, supra at 357, 471 S.E.2d 297; see also Lingo, supra at 666, 437 S.E.2d 463.