*1 prohibits United States Constitution a criminal defendant exer- cising peremptory purposeful, racially his or her strikes discrimi- natory prima manner. The Court if concluded makes a discrimination, facie racial will showing the defendant be racially explanations to articulate neutral for the exercise of or her his Id., at peremptory strikes. 2359. vacate judgment
We therefore of this court reverse the decision the trial court. The case is remanded proceedings court to in manner trial conduct consistent with Georgia v. supra. reversed. All the Justices concur. 17,
Decided March 1993. Malone, Attorney, Askew, Richard A. Steven W. Assis- tant District for
Maloy Jenkins, Maloy, Erickson, & W. Bruce Mary J. Moses, appellee.
S92A1217. STEWART v. THE STATE. Presiding Justice.
Hunt, Donald Stewart was murder and sentenced to imprisonment.1 life appeals, He alleging error trial court’s ineffective assistance of ar- gument part state. affirm. find following authorized to facts: Stewart and victim, Day, Inez became involved in spring an affair
1989. Eventually, attempted to end the affair. The vic- tim, however, began demanding spend more time her; home, with she up threatened to at where he lived children, his wife and telephoned two A his home at all hours. death, few her before the victim told the defendant that she was pregnant with his child. morning death, Day’s the victim’s Stewart drove to
apartment there, her a work. ride to Finding that she was not August The homicide occurred on 1991. Stewart was found February 27, 1992, imprisonment. on and sentenced to life His motion for was filed new trial 9, 1992, April 24, 1992, on amended on June denied on 1992. The defendant appeal July 7, filed appeal his notice of in this Court on June was docketed on argued September 23, Day walking found toward back toward his own home and drove prop- An ensued. Stewart and drove his house. owned; car to ar- erty parked two continued victim, him leave according told must gue. child, marry her family, that he had to and take care their *2 again. point, At some lost he see his son would never hand; picked up pipe, he then a Day with his control struck realized that placed against he her neck. When Stewart which dead, body barrel, property in left on put her a which he was later, accompanied by family a Two owned friend. wife, attorney voluntarily to the district and confessed the went crime. in to light a most favorable reviewing
1. After the evidence a conclude that rational trier of fact guilt, determination guilty the crime for which was could have found defendant Virginia, v. a reasonable doubt. Jackson 443 U. S. beyond 560) (1979). (99 307 assis
2. The that he received ineffective defendant maintains defender, only a public brief con tance of counsel because him, police. him make statement to the To sultation with allowed to a for ineffective assistance a secure a reversal conviction performance deficient must show that counsel’s was defendant v. performance prejudiced the defense. Strickland that the deficient (104 (1984); Washington, LE2d 80 466 687 State, 257) (1988). v. agree Baggett 735 SE2d Ga. circumstances, findings given court’s all with the trial considered, and that defendant’s counsel’s choice was tactical and clearly as to be ineffective. Since the strategy was not so erroneous attorney, public already confessed to district defendant had testified, felt, that the confession would be might defender have as the obvious it helpful to his client because would remorse of the defendant.
Further, defendant’s confession to dis- given the fact that the all of elements of the the de- attorney established trict to has to defender’s decision fendant failed establish prejudiced the statement so the defense to affect allow 734) (1988). State, Wadley the trial. Ga. failing argues the trial court erred defendant improperly injected for mistrial after the state grant motion closing The record shows argument. of race into its issue attorney, closing argument, urged in his prosecuting That concerns race their decision. remark allow to be factor is, However, a statement argue that such perhaps, irrelevant. process deny the defendant due inflammatory prejudicial as to If heeds the common sense. go against logic of law is to attorney, prosecuting words of the does that which is process with due of law.2 consistent argues the trial charge court’s jury regarding choices that it over-
emphasized precluded malice murder and murder and properly considering option (1992), we held that precision charge cases where the evidence would authorize a conviction for either murder or vol- untary manslaughter, a sequential and that such cases voluntary manslaughter only quiring the if it has sidered and found the defendant not felony of malice murder and appropriate. murder is not “sequential” charge full eliminates considera- because,
tion of if it concludes fel- occurred, ony it would not then on to consider evidence or passion authorize a Instead, verdict for should instruct so as to ensure considera- *3 of charges tion for both forms of homicide.
The
to cure
not present
seeks
is
in the case
before us. An
of
jury
examination
the record reveals that
quested
concerning
further
instructions
from the court
verdict alter-
1)
specifically
natives and
asked the court
what constitutes
serious
2)
provocation;
is a
what
reasonable interval for the voice of reason to
3)
return; and
questions, dealing
what constitutes menace. Such
they
possibility
passion,
do
of
or
indicate that
jury
indeed considered
The verdict of
was, therefore,
product
adequate
of
consideration
white;
Objecting
prosecutor’s statement,
is
the victim was black.
Stew
lawyer argued:
art’s
rights
It
is a violation of Mr. Stewart’s constitutional
under the 5th and 14th
law,
Amendments of the United States Constitution and under the
also
viola-
jury
arguing
tion
of
Batson issue as it relates to
selection and also
covers
injecting
prosecution
clearly prohibited
injecting
race. The
is
under Batson from
using
race and
move for a mistrial on that basis.
(v.
appeal,
Kentucky,
Stewart makes no Batson
concur; Benham, sent. Justice, dissenting. Sears-Collins, majority opinion. with Division not at all content am improper sequential gave deliberation, requested After some
in its main instructions. pos- and the voluntary manslaughter concerning further instructions recharged The trial court then alternatives. sible verdict murder, fashion, sequential in an again involuntary manslaughter. voluntary manslaughter, and conviction, affirmatively con- Stewart’s To affirm voluntary manslaughter questions about cludes that product “the felony murder was the verdict of any rather than charges for both forms homicide sideration of (Empha- by sequential charge.” emphasis communicated simply p. 897. Such an affirmative supplied.) Majority sis this Court. by the record before supported is not concerning instructions jury’s request for further Although the some con- that verdict manslaughter gave indicates that concerning ver- sideration, instructions request for verdicts it about the was confused alternatives indicates dict returned It thus consider. should violated recharge, which following the court’s jury room 463) (1992) 261 Ga. the rule it of the ne- relieved sequential charge decided that consideration. any further cessity giving possibility record thus shows equally as adequate consideration is at least voluntary manslaughter *4 reason, this and because possibility that it did. For likely as the room, sanctity it is untena- verdict jury reached its affirmatively jury’s conclude for the ble murder consideration of and. amounts truth, voluntary manslaughter. majority’s pro- deliberative speculation more than about nothing cess. jury in recharge that the this case not alter the fact That the was itself does a verdict of consider evidence which authorize
did on to
Moreover, questions if anything, voluntary about man- slaughter appeal. demonstrate the need reverse Those questions voluntary the jury indicate had found some evidence of Thus, proper charge man- jury’s full slaughter was critical to insure the consideration of a volun- tary manslaughter verdict. rely ultimately sequen-
Because it adequately tial and thus did not properly manslaughter, because we should not affirm a speculation conviction of murder based on the mere it- self charge, cured a critical defect This dissent. Edge, ought forthrightly apply Court rule we established in supra, require, when the circumstances as in the case.
I am authorized to state that Justice and Judge Eugene Benham join Gadsden this dissent. February Decided denied
Reconsideration Mears, Mary Erickson for Wilson, Robert Clegg, E. Thomas S. Barbara Conroy, Attorneys, B. Bowers, Attorney Assistant District Michael J. General, Benjamin Woolf, Attorney General, ap- A. Assistant pellee. THE
S92A1307. LAND v. STATE.
(426 SE2d Justice. Benham, (OCGA Appellant was inciting convicted of to riot 16-11-31 § (a)), and challenges now constitutionality conviction and the the statute.1 presented appellant, evidence that dressed the cere- pointed
monial garb knight Klan, hood of of the Ku Klux stood of a apartment building middle street front of an residents, housing Hispanic pointing his finger Hispanics gath- County ered there. Hall law enforcement responding officers “fight in progress” appellant’s lips call saw moving while he was ges- (a) provides: OCGA 16-11-31 § person engages A counsels, urges, who intent to riot does act or in conduct which riot, place or advises others to aat time and under circumstances produce present danger riot, inciting a clear and of a the offense of commits to riot.