Lead Opinion
Appellant Kasaem Toomer challenges his 2009 convictions for malice murder and other crimes in connection with the death of Justin Cox. We affirm.
The victim’s phone records showed 33 calls between the victim and Appellant’s cell phone in the two days before his death, leading the police to interview Appellant. The police spoke with him on October 11, 12, 15, and 17, 2007; he waived his Miranda rights in writing on each occasion. Video recordings of the first three interviews were admitted into evidence, along with statements Appellant handwrote on October 11 and 17.
In the October 11 interview and written statement, Appellant, after being shown a picture of the victim, denied ever having seen or heard of him until he saw a story about the victim’s death on the news. When confronted with the cell phone records, Appellant tried to cast suspicion on a man named “Kentrell,” whose last name he said he did not know. Appellant claimed that he let Kentrell borrow his cell phone for several hours on the night the victim was killed.
In the October 12 interview, Appellant claimed that he lent his cell phone to a different person that night — Kentea Jones, who had long been wanted for questioning by the Albany Police Department in connection with other crimes and was believed to be living somewhere in Florida. Appellant claimed that Jones said that he and an accomplice had attempted to rob a white man and beat him to death because he did not have any money. Appellant again denied knowing the victim, but then he said that he was with Jones when Jones got into the victim’s car on the night he was killed and that the victim had given him a ride a week earlier during which the victim propositioned Appellant for sex. Appellant insisted that he had told the police everything he knew about the incident and denied that he lied on October 11.
At that point, the officer questioning Appellant told him that she knew he was lying, said that he was under arrest for murder and making false statements, and left Appellant alone in the interview room. Appellant took a small bottle of cologne from his jacket pocket and drank it, lit his jacket on fire, and blocked the door. The police were able to enter the room a few minutes later and extinguished the small fire, which had damaged the floor. Appellant was placed in restraints, read his Miranda rights again, checked by medical personnel, and then transferred to jail. Before being transferred, Appellant admitted that he originally said something that was not true because he was shaken up but maintained that everything else he had told the police was the truth. Within days, the police confirmed with people who knew Jones that he had not been back to the Albany area for several months.
In the October 15 interview, Appellant continued for the first two hours to deny any involvement in the victim’s death, but then he changed his story. Appellant said that he had known the victim for two months before
On October 17, Appellant was brought from the jail to the police station at his family’s request. Appellant signed a waiver of his Miranda rights but declined to answer any questions. Instead, he wrote out a four-page statement claiming that the last time he saw the victim was when he accompanied Jones to a church parking lot to meet the victim on the night the victim was killed, and that Jones was the last person with the victim.
Appellant did not testify at trial. The defense conceded that Appellant argued with the victim, that Appellant punched the victim, and that the victim died as a result. The defense argued that Appellant was overwhelmed by emotion when he struck the victim, that he did not intend to kill the victim, and that he confirmed that the victim was not breathing before he and Williams threw the victim’s body into the river. The defense asked the jury to find Appellant guilty of voluntary manslaughter and to acquit him of malice murder and felony murder. The State argued that the victim was still alive when Appellant and Williams threw him into the water, but even if he was not, Appellant was guilty of malice murder and felony murder based on the aggravated assault for striking the victim in the head with his heavy ring and inflicting a fatal injury.
When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia,
2. Appellant contends that the trial court erred in rejecting his Batson claim that the prosecutor used three peremptory strikes to exclude prospective jurors solely because of their race, thereby violating his right to equal protection of the law. See generally Batson v. Kentucky,
(a) The analysis of a Batson challenge involves a three-step process:
(1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven [the proponent’s] discriminatory intent.
Thomas v. State,
The prosecutor told the court that he struck Juror 12 because “while he was in the courtroom at all times pretty much [he] kept his hand — his head in his hand and was not giving his full attention, either he was tired or disinterested.” The prosecutor said that he struck Juror 20 because of “her demeanor that she was also disinterested in — in the case. I mean, she just — just seemed disinterested.” The prosecutor said that he struck Juror 28 because, “[I]f I recall correctly ... I felt some pattern of sympathy ... in responding to [defense counsel’s] questions and just to my question I felt that it’s hard to articulate it was just a feeling that this particular juror . . . was perhaps more sympathetic to the defense.” The court then asked, “Well, what do you base that on? I mean, was it — some body motion . . . ?” The prosecutor replied, “[b]ody language.” The court said, “body language, facial expressions,” and the prosecutor said, ‘Tes, sir.” The court said, “Got to tell me what you’re basing it on,” and the prosecutor responded, “what the court just said. It was body language, facial expressions. And among the jurors that I could see it’s something that as a lawyer you just have to feel and that’s what I felt.”
(b) Appellant does not dispute that these explanations are facially race-neutral. See Rakestrau v. State,
However, the language from Parker quoted in Veasey, and the suggestion in some of our cases that Batson step two requires an explanation that is not only race-neutral but also “case-related” and “specific,” are not correct statements of the law. To the contrary, both the United States Supreme Court and this Court have squarely held that a peremptory strike based upon a juror’s demeanor during voir dire maybe race-neutral at Batson step two. See Snyder v. Louisiana,
does not demand an explanation that is persuasive, or even plausible. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”
Purkett v. Elem,
Thus, to carry the burden of production at step two, the proponent of the strike need not offer an explanation that is “concrete,” “tangible,” or “specific.” The explanation need not even be “case-related.” The explanation for the strike only needs to be facially race-neutral. See Purkett,
We emphasize, however, that case-relatedness, specificity, and similar considerations remain relevant to a Batson challenge. If the proponent of the strike carries its burden by providing a race-neutral explanation for the peremptory strike, the trial court must advance to step three of the Batson analysis and decide whether the opponent of the strike has proven the proponent’s discriminatory intent in light of “all the circumstances that bear upon the issue of racial animosity.” Snyder,
Like our concurring colleague, we look to our State’s trial judges to ferret out and eliminate invidious discrimination in the jury selection process. But they should do so using the well-defined framework set forth in Batson, Purkett, and the similar decisions of this Court. If trial judges instead were given undefined “flexibility’ to “shape and mold the law to fit the particular situation,” Concurring Op. at 63, the result would be unequal and essentially unreviewable legal standards applied in various courtrooms across Georgia. That would not advance our shared goal of ensuring that “race and gender [have] no place in the administration of justice.” Id.
(c) With respect to Juror 28, Appellant offers an additional argument in support of his claim that the State failed to carry its burden of production at step two of the Batson analysis. As recounted above, the prosecutor had some difficulty explaining why he struck Juror 28. The prosecutor said that he detected a “pattern of sympathy” in Juror 28’s responses to defense counsel, giving him “just a feeling” that was “hard to articulate” that the juror “was perhaps more sympathetic to the defense.” The trial court then asked the prosecutor if his conclusion about Juror 28’s sympathies was based on her ££body language, facial expressions,” and the prosecutor responded, ££Yes, sir . . . what the court just said. It was body language, facial expressions. And among the jurors that I could see it’s something that as a lawyer you
In Walton, the prosecutor initially offered two reasons for a peremptory strike. See
Two Justices agreed that Batson required reversal because at least one of the reasons the prosecutor gave was racially motivated, but they declined to join “all that is said in Division 5 of the majority opinion.”
The purpose of Batson step two is to uncover the actual thinking behind the proponent’s decision to strike a prospective juror, including any unconscious bias or stereotypes, so that the trial court can determine at step three whether the opponent of the strike has proven the proponent’s subjective discriminatory intent. Observing the proponent of the strike as he struggles to put his thoughts into words provides the court with information that may prove important in evaluating his credibility at step three of the analysis. Interrupting the proponent with the court’s suggestions of possible race-neutral explanations short-circuits this process, making it more likely that the proponent will provide pretextual reasons and thus less likely that invidious discrimination will be revealed and eliminated from the jury selection process. It is also unseemly for the trial court to “be perceived as providing the very rationale which the judge must then adjudicate as racially neutral or racially based.” Walton,
However, we agree with the Walton dissenters that the plurality erred in elevating this best practice to the level of a constitutional command. Nothing in Batson or its progeny suggests that an appellate court is prohibited from considering a proponent’s race-neutral explanation for a peremptory strike offered at Batson step two solely because the words used to articulate the explanation were first uttered by the trial court rather than the proponent. Under the plurality’s approach, if the proponent has a perfectly valid and credible race-neutral explanation for a peremptory strike but does not express it before the trial court does, that
(d) The trial court observed first-hand both the challenged jurors’ demeanor during voir dire and the prosecutor’s demeanor as he explained the reasons for the peremptory strikes before finding, at step three of the Batson analysis, that Appellant failed to carry his burden to prove discriminatory intent on the part of the prosecutor in striking Jurors 12,20, and 28. The prosecutor’s explanations may not be compelling, but the trial court’s ultimate finding is entitled to great deference on appeal, and Appellant has not demonstrated that it was clearly erroneous. See Blackshear v. State,
3. Appellant contends that the trial court abused its discretion in denying his repeated mistrial motions after the State played portions of his videotaped police interviews in which he admitted that he was on probation, had been arrested for fighting, and had been convicted of burglary. However, Appellant forfeited this claim by failing to object when the DVDs of the interviews were offered into evidence at trial, before they were played for the jury; indeed, his counsel stated affirmatively on the record that Appellant had no objection to their admission. Accordingly, Appellant is precluded from raising this claim on appeal. See Wilson v. State,
4. Appellant asserts that he received ineffective assistance of trial counsel. To prevail on this claim, he must show that his counsel’s performance was professionally deficient and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been more favorable to him. See Strickland v. Washington,
Appellant points to five instances of allegedly deficient performance by his trial counsel. However, in examining an ineffectiveness claim, we need not address both components of the Strickland test if the defendant made an insufficient showing on one. See Watkins v. State,
The first three alleged errors relate to the admission of the bad character evidence discussed in Division 3 above. The passing references in the police interviews to Appellant’s probation status, his prior arrest for fighting, and his burglary conviction were buried in four long interview videotapes that were played during the testimony of three different witnesses. On the other hand, the evidence of Appellant’s guilt was strong. After several hours of obvious lies and feeble attempts to throw the police off his trail, including by falsely implicating other individuals in the murder who he knew were not involved in any way, Appellant admitted punching the victim in the head, knocking him unconscious, and then dumping him in the river, admissions that were corroborated by physical evidence. Moreover, the court gave the jury a sua sponte cautionary instruction, and the prosecution did not mention the disputed evidence in closing argument. Thus, Appellant failed to show a reasonable probability that, but for
The remaining two instances of allegedly deficient performance by trial counsel relate to the medical examiner’s testimony about the theory of “dry drowning,” which Appellant dismisses as junk science. Even if we were to accept Appellant’s characterization of the theory, we could not conclude that counsel’s alleged errors with respect to this testimony had an effect on the jury’s verdict. In closing argument, the State emphasized to the jury that it need not find that the victim drowned to convict him of malice murder and felony murder in light of the defense’s concession that Appellant struck the victim in the head and knocked him unconscious before putting him in the water, because it was undisputed that these acts led directly to the victim’s death. The defense at trial was not focused on the cause of death, but on Appellant’s claim that he was overwhelmed by emotion and did not intend to kill the victim when he punched him. Thus, Appellant failed to show a reasonable probability that, but for the alleged errors related to the expert testimony, the verdict would have been more favorable to him.
Finally, even if trial counsel erred in all five of the ways Appellant alleges, Appellant has not demonstrated a reasonable probability that the cumulative effect of the alleged errors affected the outcome of the proceeding. See Schofield v. Holsey,
Judgment affirmed.
Notes
The crimes occurred in the late night hours of October 3, 2007, and during later interviews with police. On December 19, 2007, Appellant and Robert Lee Williams were indicted in Dougherty County for malice murder, theft by taking, and giving false statements. Appellant was also charged with felony murder based on aggravated assault, aggravated assault, and first degree arson (for setting a fire in a police station interview room), and Williams was also charged with concealing the death of another. Appellant pled guilty to the arson charge before trial, and on May 11-14, 2009, Appellant was tried separately from Williams and convicted of the remaining charges against him. Appellant’s felony murder conviction was vacated by operation of law, and his aggravated assault conviction merged into his malice murder conviction. The trial court sentenced Appellant to time served for making false statements, life in prison for malice murder, and a total of eight years consecutive for theft by taking and first degree arson. On June 12,2009, Appellant filed a motion for new trial, which he amended three times in July 2011. The trial court held an evidentiary hearing on July 21, 2011, and denied the motion on January 6, 2012. Appellant timely appealed, and the case was docketed in this Court for the April 2012 term and submitted for decision on the briefs.
There were 30 prospective jurors —13 African-American persons and 17 white persons - and each party was allowed nine peremptory strikes. The defense used all nine of its strikes, including three against African-Americans, and the State used eight of its strikes, including five against African-Americans. As a result, the trial jury had four African-American jurors and eight white jurors. Appellant objected to four of the State’s peremptory strikes but later waived one of those objections. The State argued at trial that Appellant failed to make a prima facie showing of racial discrimination at Batson step one. The trial court did not rule on that issue, however, instead proceeding directly to Batson step two by requesting that the prosecutor explain his reasons for the challenged strikes, and the State does not raise this issue on appeal. Accordingly, we assume without deciding that Appellant made the required prima facie showing of racial discrimination.
The concurring opinion argues that we should depart from Purkett by applying the Georgia Constitution’s equal protection guarantee differently than the equal protection clause in the Fourteenth Amendment to the United States Constitution, citing a case in which Justice Carley’s concurring opinion acknowledged this Court’s authority to do that. See Stephens v. State,
Concurrence Opinion
concurring specially.
While I agree with Divisions 1, 3 and 4 of the majority opinion, I can agree only in judgment as to Division 2.1 must write separately because I disagree with the majority’s disapproval of the following cases: Walton v. State,
A little background information may be helpful in considering the approach taken by this special concurrence. The legal journey to a destination in the law where race and gender are impermissible factors in determining whether a person is allowed to serve on a jury, and a litigant’s right to have a jury untainted by race and gender consideration, has been long and arduous. It has by no means been a short and uneventful journey. It has moved at a snail’s pace through treacherous paths with pitfalls, barriers and obstacles along every step of the way. The journey from Swain v. Alabama to Batson v. Kentucky has taken over twenty years. Swain v. Alabama,
I do not take issue with Batson, Purkett, and the line of cases cited by the majority; I acknowledge that as a state we must accept the United States Supreme Court’s determinations as to the United States Constitution as well as federal statutes and regulations. However, as the Supreme Court of Georgia, we are free to interpret the Georgia Constitution in a manner that acknowledges the federal floor, but nevertheless raises that floor to provide our citizens with greater rights. Stephens v. State,
The position taken by these states is not foreign to Georgia. In Parker v. State,
[W]e cannot condone the exclusion of the three prospective African-American jurors based almost entirely on their demean- or. The prosecution’s reasons for striking these African-American prospective jurors were not the kind of concrete, tangible, race-neutral, case-related and neutrally applied reasons sufficient to overcome Parker’s prima facie case.
This holding directly contradicts the Purkett decision, which permits a proponent to offer justifications for strikes that are not “persuasive, or even plausible” and still meet their burden under step two of the Batson test. Purkett, supra,
The reluctance of Georgia courts to accept “silly” and “superstitious” justifications suggests agreement with the dissent in Purkett, which states “ ‘[i]t would take little effort for prosecutors who are of such a mind to adopt rote “neutral explanations” which bear facial legitimacy but conceal a discriminatory motive.’ ” Purkett v. Elem, supra,
For over 25 years the decisions of this Court and our Court of Appeals have stood as a tool to help trial judges deal with all kinds of difficult and troubling issues, including those of race and gender. Trial judges need flexibility in using legal tools so that they may shape and mold the law to fit the particular situation. The majority opinion has given them an inflexible formalistic approach that elevates form over substance. There are times during the jury selection process that the trial court needs to be able to compress the process to get to the heart of the matter so that justice can be done not only to the parties, but also to the prospective jurors. Our trial judges are remarkably resourceful and are peculiarly equipped to get to the heart of matters. Often-times it is necessary to put substance over form to reach the right conclusion. Such an approach was evident years ago in my small north Georgia circuit, when I brought to the attention of the District Attorney and the judge that prospective jurors felt unappreciated when they were stricken during the peremptory challenge process for reasons of race and gender. It was at that moment that the trial judge turned to the District Attorney and said, “I know the law allows you to strike a juror for any reason, but I will not tolerate jurors being stricken because of race and gender.” The District Attorney responded by saying, “Judge, I agree with you and I will instruct my staff accordingly.” This conversation took place before Batson, Georgia v. McCollum,
To the credit of prospective jurors we sincerely believe that they enter upon the service in an environment that is free of discrimination based on race or gender. We offer them these words of support and comfort by an unknown poet:
You are your country’s keeper Your government is but you You are the woof of her fabric Whether she be strong or weak or true Yes you are your country’s keeper And yours forever the blame Whether she rises in her glory Or withers in her shame.
One size does not fit all. It is this flexibility that I seek to preserve for trial judges and lawyers throughout this state, and it is with respect for our use of the jury system that I pen this special concurrence.
It was the early 1950s when our neighbor, Rev. Moses Slocum, became the first black person to serve on a jury in our circuit. His service was a moment of celebration for our entire community. Rather than becoming angry as to the lack of service, we looked to a brighter day when more would be allowed to serve. We were mindful of the words of Omar Khayyám (1048-1131), a Persian polymath, renowned as a mathematician, astronomer, philosopher, and poet.
The moving finger writes and having writ moves on,
All your piety and all of your wit Can’t call it back to cancel a line of it.
Nor all of your tears wash a word of it.
It was on one of these many occasions that an African-American woman approached me as the president of the local har association. She said the following:
I dropped everything that I was doing just to come to court and serve on the jury. I was well-dressed, well-mannered, well-educated and respectful. It was my chance to finally become a part of the government of a country and state that I love and honor. I answered all of the questions posed to me, the same as the other white jurors. Yet the whites were accepted and I was rejected. I feel I have been subpoenaed to court to be made a fool of.
She then paused and said:
If I am not good enough to serve as a juror, then I am not good enough to cooperate with the administration of justice. In the future, if I see a crime committed I will not volunteer to be a witness. If I am asked to he a part of neighborhood watch I will refuse to do so. If I am asked to he a part of some community activity designed to support the court system I will decline the opportunity And if I am subpoenaed to come to court again to serve on a jury, I will refuse to do so.
I realized then that the damage done when legitimately qualified citizens are denied service goes beyond the denial of a fair trial to those who appear before the bar of justice. The damage is done to the very foundation of justice itself. It erodes respect for our legal process. It causes citizens not to cooperate with law enforcement and those who administer our system of justice. This damage can be long-term and deep-seated.