Defendant appeals his conviction of the offense of theft by taking (of a motor vehicle which exceeded $100 in value). Held:
1. Defendant contends that the jury panel was prejudiced by information that one of the prospective jurors was an attorney and had previously represented the defendant. Following the selection of a jury, defendant moved for a mistrial based on the statements made in the presence of all prospective jurors by the attorney/prospective juror. There is no transcript of the voir dire included in the record before us. However, from the colloquy between the trial court and counsel, it appears that the attorney/prospective juror stated that he was an attorney and had represented defendant. We do not view this initial response as having placed defendant’s character in issue.
Yarber v. State,
Although the attorney/prospective juror spoke individually to one or two jurors concerning the fact that he had represented defendant, he did not state whether the representation involved a civil or criminal matter. The jurors to whom the attorney/prospective juror spoke were not among the 12 chosen to hear the case, nor did the jurors to whom the attorney/prospective juror spoke have any opportunity to communicate in that regard with the 12 jurors chosen to hear the case. This enumeration of error is without merit.
2. In his second enumeration of error defendant contends that the trial court “erred in not striking a new jury panel after Defendant objected to the fact that all of the jurors were white and that there were no black jurors on the panel. This was particularly prejudicial since defense counsel was black.” (Tangentially, we note that the record fails to indicate the race of defendant’s trial counsel. The parties have responded to this court’s inquiry as to this issue with a stipulation that defendant’s trial counsel “is Spanish in his national origin.” However, we have assumed that defendant’s trial counsel is a member of a recognized racial minority.) Defendant argues that, “[ajlthough in the instant case the Defendant was white, the defense attorney was a minority and this may have adversely influenced the jury.”
The equal protection clause of the United States Constitution guarantees a criminal defendant that the State will not exclude members of his race from the jury on account of race or on the assumption that members of his race will be unable to impartially consider the State’s case. See
Batson v. Kentucky,
476 U. S._(106 SC 1712, 90 LE2d 69);
Swain v. Alabama,
Judgment affirmed.