Thomas Antonio Brown was tried by a Richmond County jury and convicted of the murder of Bon Joshwa Albright, as well as four counts of aggravated assault and five counts of possession of a firearm during the commission of a crime. Following the denial of his motion for new trial, Brown appeals, contending that the evidence is insufficient to sustain his convictions, that the court below erred when it denied his Batson
1. Viewed in the light most favorable to the prosecution, the evidence shows that shots were fired as Brown was walking in the Harrisburg neighborhood of Augusta on July 27, 2006. Someone told Brown that Pernell (“P. J.”) Graham had fired the shots and had fired them at Brown, and Brown reported the incident to a police officer. Brown then went home, where he was overheard talking on the telephone, saying that he was “going to kill those n****** for shooting at him,” and that he wanted to be picked up by “the Intrepid.” Soon thereafter, Mark Dewayne Graham and Damien Jacquez Hawes arrived in a Dodge Intrepid and picked up Brown.
Mark Graham, Hawes, and Brown drove to the home of a relative of P. J. Graham. There, they found at least five people on the front porch, including P. J. and Albright. As the Intrepid drove past the home, Brown asked from the back seat whether P. J. had shot at him. When P. J. replied that he had not, Brown said, “one of you punk a** n****** sIrot at me.” The Intrepid continued past the home, and Brown was overheard telling Mark Graham, “yeah, that’s P.J.” Witnesses then saw the Intrepid turn around and approach the home for a second time. As the Intrepid again drove past the home, Mark Graham fired a single shot from a .380-caliber handgun. The shot struck Albright, who was standing next to P.J., and Albright was killed.
On appeal, Brown claims that no evidence shows that he was a party to the firing of the fatal shot. We disagree. A person is a party to a crime if he “[intentionally advises, encourages, hires, counsels, or procures
2. After the jury was selected, Brown objected that the State had used its peremptory strikes to unconstitutionally strike four black prospective jurors on the basis of their race. See Batson,
As we have explained before, when one party objects that another has unconstitutionally discriminated on the basis of race in its use of peremptory strikes, the objecting party bears the burden of making out a prima facie case of purposeful discrimination. Blackshear v. State,
[e]ven though circumstantial evidence of invidious intent may include proof of disproportionate impact, numbers alone may not establish a disproportionate exercise of strikes sufficient to raise a prima facie inference that the strikes were exercised with discriminatory intent.
Livingston v. State,
In this case, the State apparently used only five of its nine allotted peremptory strikes, and it used four of those strikes (44 percent of its allotted strikes) to strike black jurors. Yet, black jurors represented 50 percent of the venire and 58 percent of the selected jury. Viewed in this context, the mere fact that the State used four strikes to strike black jurors is not enough, we think, to raise an inference of purposeful discrimination. See Horton v. State,
3. Finally, Brown contends that the court below erred when it sustained an objection to the closing argument of his lawyer. In closing, his lawyer made several comments about “gangs,” and he seemed to say that Brown was a “[m] ember of a gang.”
The record confirms the finding of the court below that no evidence pointed to gang activity. Brown notes that his lawyer asked the medical examiner on cross-examination whether he saw any gang-related marks upon the body of the victim, but the medical examiner replied that he observed no such marks. Brown also notes that the initial investigator who responded to the shooting was principally assigned to investigate gang activity, but the investigator explained at trial that he was en route to another incident when he overheard a radio dispatch about the shooting, and he decided to respond because he was nearby. The testimony of neither the medical examiner nor the initial investigator connected this case with gang activity. And in any event, it does not appear from the record that the State ever
Judgment affirmed.
Notes
Batson v. Kentucky,
The events that form the basis for the convictions occurred on July 27, 2006. Brown was indicted on August 22, 2006 and charged with one count of malice murder, one count of felony murder, five counts of aggravated assault, and six counts of possession of a firearm during the commission of a crime. Prior to trial, one count of aggravated assault and one count of possession of a firearm during the commission of a crime were dismissed as nolle prosequi. The trial on the remaining counts commenced on May 22,2007, and the jury returned its verdict on May 24, 2007, finding Brown guilty on all the remaining counts. The felony murder conviction was vacated by operation of law, see Malcolm v. State,
Compare Rose v. State,
We have observed before that, among other things, “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” Mitchell,
Brown also argues that the State unconstitutionally struck one Hispanic juror on the basis of his ethnicity, but we know nothing about how many Hispanic jurors were in the venire or the selected jury. Nor does Brown point to any other evidence of discriminatory purpose. Without more, that the State struck a single Hispanic juror is insufficient as a matter of law to make out a prima facie case of purposeful discrimination, and we need not consider that strike further.
The lawyer said, “Antonio. Member of a gang.” It is unclear from the transcript whether the lawyer was, in fact, arguing that Brown was a gang member, was suggesting that the prosecution or its witnesses considered Brown a gang member, or perhaps was sarcastically mocking the idea that Brown was a gang member.
Brown also contends on appeal that the court below improperly sustained an objection to his lawyer arguing that the State had made out Brown to be an “animal.” Although the State complained about the repeated references by Brown’s lawyer to “animals” when it objected to the final reference to a “gang,” it does not appear from the transcript that the court sustained any objection with respect to the use of the term “animals.” In any event, sustaining such an objection would not have been an abuse of discretion, inasmuch as the State never argued that Brown was an “animal.”