Appellant Randy Killens was convicted of selling cocaine in violation of the Georgia Controlled Substances Act. We affirm.
1. Appellant maintains the evidence is insufficient to establish his guilt beyond a reasonable doubt.
The evidence adduced at trial authorized the jury to find that in August of 1985 Georgia Bureau of Investigation agents were engaged in an undercover narcotics operation in Waycross, Georgia. Agents were to make as many drug buys as possible within a short period of time, but were to wait to make arrests until the operation was completed so as to not reveal their cover. On the afternoon of August 21, Agents Robin Skinner and Ronnie Baldwin went to a local nightclub *718 to locate a disc jockey with whom Agent Baldwin had spoken earlier about purchasing cocaine. Agent Baldwin entered the club but could not find the disc jockey. Two black males who identified themselves as “Rickey” and “John” approached Agent Baldwin. “Rickey” was later identified as appellant Killens.
When the two asked Agent Baldwin why he was looking for the disc jockey, Agent Baldwin advised them he was hoping to complete a drug transaction. The two individuals indicated they could get him anything he wanted. The three then joined Agent Skinner outside and drove to nearby Oak Street where they pulled over. The two black males got out of the car, disappeared around a building, and returned some fifteen minutes later. Appellant handed Agent Skinner a quantity of cocaine and the other individual gave Agent Skinner a quantity of marijuana. Agent Skinner gave $50 to the second black male, who split it with appellant. The agents were with the two individuals for over an hour in broad daylight.
On December 4, 1985, agents involved in the operation returned to Waycross to make arrests. Driving along Oak Street, Agent Baldwin identified appellant and apprehended him. Appellant was transported to the Ware County Sheriffs Office where Agent Skinner positively identified him in a one-on-one show-up.
The evidence presented at trial taken in the light most favorable to the verdict was sufficient to allow a rational trier of fact to find appellant guilty of violating the Georgia Controlled Substances Act beyond a reasonable doubt.
Jackson v. Virginia,
2. Appellant contends the State’s use of its peremptory strikes to exclude members of his race from the petit jury denied him his federal and state rights to equal protection of the laws. Traditionally, peremptory challenges have required no justification.
Gamble v. State,
Under
Batson,
the initial burden is on the defendant to raise a prima facie showing of purposeful discrimination by the State.
Batson
outlined a three-step process by which a defendant makes such a showing. “[F]irst, [the defendant] must show that he is a member of a cognizable racial group, [cit.] and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact . . . that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’
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Avery v. Georgia,
If the defendant makes the requisite showing, the burden shifts to the State to come forward with a race-neutral explanation for the monochromatic result of its use of peremptory strikes. Batson, supra, 90 LE2d at 86. The explanation “need not rise to the level justifying exercise of a challenge for cause,” but it must be a “ ‘clear and reasonably specific’ ” race-neutral explanation, related to the case to be tried. Batson, supra, 90 LE2d at 88 and n. 20.
The trial judge listened to appellant’s objections outside of the presence of the jury. Appellant demonstrated the fact that he was black and that the State used its peremptory strikes to remove two black veniremen from the petit jury. The result was an all-white jury with only a black alternate. Further, appellant complained that white jurors were not struck when situated similarly to the two blacks that were challenged.
We may assume the trial court considered this as sufficient prima facie evidence of the State’s discriminatory intent as the judge then gave the prosecutor a chance to respond. The prosecutor explained that he excused juror Everette because she knew and attended the same church as appellant’s mother. Although some of the white veniremen knew other relatives of appellant, those were business, not social, religious relationships. The prosecutor believed a social, religious relationship was likely to create prejudice in the mind of juror Everette.
The prosecutor explained that juror Ross was excused because he failed to raise his hand during voir dire when the panel was asked whether they had any family member or close friend who had been arrested. The sheriff, who was present, indicated to the prosecutor that Mr. Ross’ son had been arrested on numerous occasions. Mr. Ross also indicated that he was on Social Security disability, and the prosecutor explained he did not like to accept jurors on disability. While appellant claims a white juror who was also on disability was not challenged, that juror had not failed to raise his hand during the voir dire as to the question of disability.
Although the prosecutor may not strike from assumptions based solely upon race, he “may strike from mistake, or from ignorance, or from idiosyncracy.” Gamble, supra at p. 326. Thus, the prosecutor’s explanations were sufficient to rebut the prima facie case in that they were clear and reasonably specific, related to the particular case, and, most importantly, race-neutral.
After hearing appellant’s response to these explanations, the trial
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court ruled that appellant had not carried his ultimate burden of proving discriminatory intent. The findings of the trial court are “entitled to appropriate deference by a reviewing court.”
Batson,
supra, 90 LE2d at 89, n. 21. These findings will not be disturbed unless clearly erroneous.
Gamble,
supra at p. 326;
Powell v. State,
3. The trial court’s refusal to suppress identification of the appellant at the one-on-one show-up, and later in court, is enumerated as error. “The evil to be avoided is the . . . misidentification of an accused. The holding of
Neil v. Biggers,
First, it is clear that Agent Baldwin’s pretrial identification was in no way tainted because the procedure was not suggestive. Agent Baldwin simply observed and identified appellant from the streets of Waycross.
We must turn then to the show-up identification by Agent Skinner. Although one-on-one show-ups have been sharply criticized, and are inherently suggestive
(Benton v. State,
In the present case, Agent Skinner spent a substantial amount of time with appellant, over an hour during the middle of the afternoon. Agent Skinner was not simply a casual observer. Her attention was focused on appellant, the person from whom she was buying the cocaine, and whom she would later have to identify. Agent Skinner was unequivocal in her identification of appellant at the show-up. Although four months had elapsed between the time of the crime and the time of the show-up, this was a necessary part of the undercover operation and not sufficient to taint the identification.
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In addition, both agents testified that their in-court identifications were based upon their recollection of appellant on the day of the purchase. Thus, Agent Skinner’s identification had an independent basis other than the show-up. Even were we to assume, arguendo, that the one-on-one show-up was tainted, the in-court identification was admissible since it had an independent basis other than the prior identification.
Code v. State,
4. Appellant contends that an alleged seizure of a defense witness, appellant’s brother Rickey, rendered his trial unfair. The record contains no evidence of a “seizure” as claimed by appellant. Moreover, appellant made no objection at the time of the alleged misconduct and waited until both sides had rested before he made a motion for mistrial.
“We reject this enumeration upon either of two grounds. By failing to make a timely objection, [appellant] has waived any objection that might have been made.
Burt v. State,
5. Appellant contends the trial court erred in denying his motion to reopen the case after all the evidence was closed. It was appellant’s intention to put his second brother, John, on the stand in order to show the strong resemblance between appellant and his two brothers. The trial court ruled that appellant’s counsel should have discovered the resemblance upon a reasonable investigation and presented it during trial. It is well settled that the reopening of the evidence is within the sound discretion of the trial court. That decision will not be disturbed absent an abuse of discretion.
Hurt v. State,
Judgment affirmed.