*1 S96A1639. WALTONv. THE STATE.
Benham, Chief Justice. Terry Appellant Walton and three others were indicted for the Stanley just p.m. Jones, murder who was shot 11:00 before while parking seated in his Columbus, automobile in the lot nursing employed home which his wife.1One co-indictee testified for exchange charge against in State a reduction him from voluntary manslaughter. Appellant murder Walton and the two remaining co-indictees, Williams, Marvin and Terrence were tried together. guilty Walton murder, and Terrence Williams were found acquitted. Appellant and Marvin Williams was Walton contends the evidence was insufficient to him murder, convict of malice admitting erred into evidence a custodial and the erroneously racially-based peremptory trial court lenges let stand chal- exercised the State. presented
1. The State several witnesses who testified that co- very angry day defendant Terrence Williams was with the victim the paid Jones was killed because the victim had not Williams supplied Complaining crack cocaine Williams had him. that the vic- him, tim friends, had robbed Williams enlisted aid of several including punish co-indictees, his three to find Jones and him. Wil- Bonner, liams told Walton and Ernest co-indictee agreed plead guilty charge exchange to a reduced for his testi- mony, Appellant that he wanted Jones killed. told Bonner that Wil- enough money liams did not he, to have Jones and killed paid drugs. group Walton, did not wish to be was unsuccessful in its initial efforts to find Jones and returned to Williams’ residence Bonner, Williams, where and Walton 9 mm Black cleaned Talon bul- supplied by pawnshop lets A Williams. owner testified that he had Ruger pistol sold mm a 9 semi-automatic and 9 mm Black Talon learning nursing shells to Williams. After Jones would be night provide transportation home that wife, Williams nursing parking drove Bonner and Walton to the home lot. The trio parked pas- appellant, to the left car and victim’s the back seat 14, 1993. The crime on occurred March A warrant for arrest was on issued 30, Michigan August 18, March and he was arrested in on 1993. He waived extradition and charged returned to in October where he and his co-indictees mal were with possession during ice murder of a firearm the commission of a crime in an indictment 23, 1993. July 18, 1994, returned July November The trial commenced and culminated on guilty the return of verdicts and one co-indictee on the murder charge. Appellant imprisonment days later, timely was sentenced to life five filed a trial, nearly later, years May motion for new which was amended two 1996. The 20, 1996, appeal following day. motion denied June and a notice of filed July 9, case was docketed in this Court on and submitted for oral decision without argument. through
senger the driver’s side car, fired three shots Williams’ fatally wounding him. The trio fled the scene car, of Jones’ window immediately. Talon bullets were recovered Three 9mm Black days gave later, Williams Bonner $800 Two three the victim. Michigan. Detroit, went to Bonner and day *2 police 30, March arrest himself in to Williams turned August 1993, In Bonner was the trio were issued. warrants Chicago, police investigating traffic acci- Illinois, arrested outstanding murder he discovered the was involved dent which shortly arrested in Detroit after him. Walton was warrant Bonner’s arrest. When the man, chronicling informed of Bonner’s statement trigger- naming appellant as the homicide, it, what led to and “basically appellant pronounced . . . correct.” the statement presented authorize a rational trier of was sufficient to The evidence fact murder and crime. Jackson beyond appellant guilty of malice to a reasonable doubt find during possession firearm the commission of a of a Virginia, 2781, SC (1979). appellant Detroit, after arrest in was trans
2. Two months his Michigan Georgia by ported detectives, via two from car Columbus rights pre appellant of his as the threesome one of whom advised being approximately pared After on the road two to leave Detroit. appellant hours, if he wished to make a one of detectives asked testimony According at the Jackson- to the detectives’ statement. opportunity, inquired hearing, appellant declined the Denno given by anyone told the detec else had statement. When whether tive appellant said. The had, that Bonner asked what Bonner had telling appellant Bonner’s detective summarized Walton, Bonner, and Williams had discussed had said that Bonner killing the victim as he in his car Jones and that Walton had shot sat nursing parking appel finished, in the lant commented that Bonner’s home lot. When detective “basically
statement was correct.” The right appellant had not asserted his coun detective testified rights being prior after the detective his their sel informed departure Michigan, he from but admitted “had idea” attorney Michigan appellant law had asked for enforcement hearing Appellant that, also at the and stated authorities. testified Michigan, attorney custody requested he had while Moore), (George Michigan lous), (Sgt. agent Nacopo John Georgia an FBI officer appellant’s It rec one of the detectives. was also and of rights him of his that the detective had advised ollection Michigan presence detective, and the other officer appellant He he had invoked his to counsel. said reit and that during position ride, asked him when, the car the detective erated his say, anything him if he had and that the detective had asked if he Appellant any making to hear Bonner wanted what had said. denied upon hearing summary comment of Bonner’s statement. court ruled that comment on the substance appellant
of Bonner’s statement admissible because had been rights, voluntarily them, informed had his Miranda had waived freely voluntarily given the statement. The trial court also rulings: rights made alternative might had waived by initiating have earlier exercised further conversation with “responded detectives, the without ... or volunteered being questioned. appeal, appellant . . .”On contends it was testimony concerning car-trip error admit his statement it the result of a conversation initiated the Columbus detectives after had invoked his constitutional to have counsel present during interrogation. custodial
Appellant’s requires assertion us to examine the Jackson-Denno testimony ruling through pro and the trial court’s thereon the lenses Supreme Arizona, vided the U. S. Court in Edwards v. S.U. 378) (1981), progeny. Edwards, SC LE2d and its “relatively imposed rigid require 484-485, S. at 451 U. the court (Arizona Roberson, ment” 486 U. S. 704) (1988)) suspect “expressed LE2d when held who has *3 police only through subject to deal desire with counsel is not to fur interrogation by ther the authorities until has counsel been made to him, available nication, unless the accused himself initiates further commu
exchanges,
police”
knowingly
conversation
intelligently
right previously
waives the
invoked. See also Wil
306) (1994).
State,
son v.
264
287
Furthermore,
Ga.
SE2d
an
right
present during
accused
has invoked his
to have counsel
interrogation
right
custodial
does
not make valid
of that
waiver
responding
police-initiated
interrogation
to further
custodial
if
even
preceded by
again advising
that conversation
officer
is
him of his
(1) (385
rights.
Brady
supra.
Edwards,
State,
See also
v.
In the case at three the car one all displayed willingness of the detectives first a and desire to talk about investigation by inquiring appellant wished to make charges lodged against Compare statement about the v. him. Guimond (386 158) (1989) Snipes State, State, Ga. 752 SE2d v. (2) (373 48) (1988) (where App. 366 Ga. ated the conversation was one of fact or SE2d the issue of initi who
credibility). light In testimony, uncontradicted we must that the conclude trial court appellant erroneous when it ruled that initiated the conversa tion. inquiry determination, however,
4. That does end the against because the trial court also found that the statement used product “interrogation.” was not the v. Rhode Island 297) (1980), Innis, 291, 446 U. S. 300-301 Supreme “interrogation” pre- Court defined the which must be warnings “express questioning [of person ceded Miranda as the custody] equivalent. [t]hat is, or its functional . . . . . words (other part police normally or actions dant than those atten- custody) police arrest that the should know reasona- likely bly incriminating response suspect. to elicit an from the . . .” police surely “[t]he note, however, The court went on to cannot be held accountable for the unforeseeable results of words their “interrogation” . . .” Id. at actions. applicable 301. The Innis definition of is presenting question to cases an Edwards since warnings implemented by application Miranda “are corollary” supra, Edwards Roberson, discussed above. Arizona v. U. S. at incriminating
If,
bar,
in the case at
had made an
state
response
query
ment in
to the detective’s
whether he wished to make
prophylactic
precluded
rule of Edwards would have
Vaughn State,
the State’s use of the
statement. See
Bonner’s given by response detectives, but of the to a one appellant’s answer to the detective’s unsolicited comment on was appellant’s questioning. previously held that an We have line of by question posed response the an answer to a to officer’s accused’s accused 258 Ga. officer’s Delay interrogation. product is not the of custodial 806) (1988). (c) (367 (3) a law enforcement SE2d While summary implicating accused deemed to evidence an was interrogation” admit officer law enforcement “custodial when be officer, another within the evidence for ted that had summarized get to to make an accused, in an effort the accused earshot summary response overhearing incriminating to statement (4) (424 (1992)), (Cottingham App. State, 206 Ga. in the intent made the detective involved such admission of case at bar. was Although car-trip conversation between began question put improper to the detective with an against was not in detective, the used statement question posed by response express to the detective or words or likely to elicit an the detective should have known were actions (3) App. incriminating response. Turner See 512) (1991). Metheny Compare State, 197 Ga. (b) (400 25) (1990). We cannot find erroneous implicit appellant’s statement was an trial court’s determination responding appel unforeseeable result of the officer’s action Consequently, questioning. court, trial conclude, we as did the lant’s against appellant product of was not the cus that the statement used todial interrogation properly and was admitted. court erred We turn to assertion that trial next exercising peremptory ruled that State’s reasons persons from the venire were which removed three black
strikes reasonably specific. race-neutral, case-related, Greene v. clear and State, venireperson. need in this than one We look no farther matter Attorney potential juror, Speaking of District Assistant (ADA) she felt like noted that she had “made statement system people justice . . . black there was dual who country. in this . . .” The ADA also recalled tried the courts venireperson acquainted with, or had cousin was was recently-deceased attorney acquainted King, in the area. with, B.C. litigation King’s practice in which ADA as one summarized Mr. J., prohibits police-initiated (Carley, dissenting). inter- it is clear Edwards Because regard rogation counsel accused after the invocation of the without invoking the extent that it questioned to counsel we overrule White to before otherwise. holds usually brought up prominently, argued jury, “race was appeal jurors’ [ ] was . . . his main defense to black own — thought “[he] . . .” race. The ADA stated that cousin King thought knew C. B. one time and her statement that she system justice system there was a dual there could be a justice might, jury, try up past . . . that she if on this even wrongs straighten system by letting out these defendants go. racially questioned . . .” When the whether that rationale was *6 explained striking
neutral, ADA the he was not the woman King appeals.” race, on account of her but of C. “because B. and his venireperson’s the When former trial court observed that the cousin was a president Georgia of Association of Criminal Defense Lawyers, responded the ADA that he had borne fact in that mind “as King system justice. [and] as C. well B. the dual of .” . . given venireperson’s ADA, reason connection with lawyer King, venireperson’s
a who C. B. that knew and belief that system justice, fairly there was a dual of cannot be said to be “case- reasonably specific,” supported related, id., clear and because it is not venireperson All record. was that a said she had cousin in lawyer. lawyer’s who was a of the rest connections were supplied for the counsel State and the defense. to the As belief in a system justice, appel- of the record one shows counsel for of pointed venireperson lant’s co-defendants out to the that another expressed venireperson specifically belief, such a position disclaimed that for herself. appeal support peremp-
The other
in
reason asserted on
of the
tory
venireperson
venireperson’s
strike of that
is that
cousin was
president
Lawyers.
a
of Association of Criminal Defense
transcript
However, it is clear from the
that that rationale for the
ADA,
exercise of the
did
duty
strike
not emanate from the
but from the
judge.
proponent
ADA,
It
strike,
was the
of the
as
of the
challenged peremptory
articulate
for
the reasons
the exercise of a
(476
(2)
252) (1996).
strike. Turner v.
Carley, agree majority opinion join 1-4. I with the as Divisions given racially majority one motivated reason that there was at least venireperson peremptory support discussed in strike Kentucky, majority opinion that, therefore, Batson v. the U. S. 79 69) (1986) requires 1712, 90 LE2d reversal and join grant However, I in all that is said Divi- trial. cannot of new majority opinion. Instead, I that reversal is 5 of the believe sion (5) holding required Clark, of Strozier v. under dissenters, I Unlike the do not believe implicitly disap- contrary, Lingo expressly approved proved To the Strozier Strozier. racially-neutral neutrally- establishing “the rule where *7 given applied any strike, simultaneous existence of reasons are for a racially explanation in a violation.” motivated results Batson Lingo supra Thus, I overrule State, do not think we can v. overruling Lingo. Lingo Strozier, Under without also Strozier requiring error this case reversal. there Batson joins special Sears in this I am authorized state Justice concurrence. dissenting. Justice,
Hunstein, concerning majority opinion except I in the for Division 5 concur juror. disqualification prospective of a majority it that the trial court erred when ruled concludes exercising peremptory reasons for a strike which State’s woman, were race- # a venire
removed Juror black reasonably specific. case-related, Greene v. neutral, clear and See (5) (469 129) (1996). I State, would conclude that pur- failed to establish court’s determination clearly Lingo poseful discrimination erroneous. 664, 666 prosecutor gave multiple reasons for exercise chal- attorney-cousin lenges against had shared a # Juror 17: because (an attorney prosecution King legal practice character- C. B. injecting cases); ized as notorious for when race as an issue in his questioned by defendants, counsel for one of the # Juror 17 had expressed system justice; some reservations about a dual lawyer-cousin # 17’s because Juror had served as President Lawyers Criminal Defense Association. peremptory Although we must insure strikes are not exer- racially-motivated presence potentially cised for reasons, the of one racially-motivated explanation jury does not tarnish selection under 69) (1986) Kentucky, Batson v. gives multiple justifying those situations where counsel reasons peremptory challenge against particular venireperson exercise of a a racially-neutral explanation striking and those reasons include a for juror pretext removing the racially-discriminatory which is not itself a for for the Lingo supra
reason. at 668-669. In Lingo Appeals’ holding v. State, we examined Court of in Strozier 368) (1992) (holding Clark, that the jury process racially- selection is invalidated under Batson when a explanation striking venireperson accompanies motivated for racially-neutral explanation venireperson) for removal given removing concluded that where simultaneous reasons a can be juror, jury process only selection is invalidated “where racially-neutral explanation pretex- fact, determined that the is, in racially indepen- tual since there is a motivated reason that can be dently supra determined . . . .” fn. 4. Accord- ingly, competing explanations while the existence of for the exercise peremptory challenge greater scrutiny by aof calls the trial insure that Batson’s mandate eliminate racial discrimination is injection upheld, racially-motivated explanation mere into the jury process procedure selection not so does infect the as to render unavoidable the reversal of case.4
Applying analysis case, the above to the record this would find no reversible error in the dismissal Juror # 17. One reason given by prosecutor striking relationship # Juror was her King. Standing juror’s King alone, with been goal connection to would inappropriate upon jury basis which to base selection. The progeny,
of Batson and its to eliminate racial discrimination jury by striking prospective juror selection, not furthered solely because of tenuous association with individual known for espousing positions pros- *8 However, controversial on racial issues. the gave striking ecutor two other for reasons Juror # 17: that she may system justice, believed there exist a dual and that her cousin Lingo State,'! reject position Because it is inconsistent with thus would the set forth any racially-motivated explanation automatically jury in Strozier v. Clark vitiates the process. selection Applying organization. president bar of criminal defense been racially- question facts, the the is whether to these State juror by striking prosecutor explanations given the the neutral racially-motivated independent pretext of a rationale for the were my system justice King. relationship reason, the As to with juror responding transcript the was reveals that review the (and attorneys prosecutor) by questioning the not one of the defense with another shared the same “concern” asked her whether she system justice juror prospective The for minorities.” “about a dual juror responded I trials felt had “seen or read about where that she just time. I take it not how I feel all of the was the case. That’s that case prosecutor transcript The also reveals that when case.” explain upon strikes,5 he stated believed the later called was system justice “thought or was a dual had said she there system.” the defense nor the have been a dual Neither there could trial prosecutor’s impression of # what Juror court indicated that the prosecu- been as the had said mischaracterized. Had facts # 17 have con- be, the statement Juror would tor believed them striking her, a race-neutral reason stituted [trial court] inquiry not “the is ultimate suspect, reason[s are] irrational, weak, or counsel’s telling the truth his or assertion whether counsel is that challenge [Cit.] not race-based.” is (Emphasis supplied.) 449, 454 Smith (1994). showing prosecutor deliber- There is no the record that response ately misinterpreted # in order to make a Juror 17’s may racially-neutral prosecutor pretextual. reason The fact that going been less while defense counsel were forward attentive prosecutor with their dire is acted voir irrelevant to whether subjective prosecutor It is intent of which racial animus. accuracy reviewing challenge, prose- issue Batson on voir cutor’s notes dire. strike, that Juror # 17 was other reason articulated for president criminal
related to who had been someone acknowledge undoubtedly association, defense race-neutral. relationship to the defense association was first that raised cousin’s affirmatively prosecutor judge; however, the the trial actively relationship endorsed to stated that he recollected group was a the trial cousin’s affiliation the defense Juror # 17. Under factor his decision to exercise a strike jurors questioned transcript prospective after Juror reveals 16 more were # 17. *9 prosecutor’s presume circumstances, we cannot these merely pretextual purely of the race-neutral reason was endorsement by the trial court. first mentioned because it was disposition reviewing motion, we the trial court’s Batson always whether a that the trial court’s decision bear in mind must procedures prosecutor’s result of neutral selection strikes were the prosecutor’s largely upon mind, state of an assessment of the rests peculiarly prov- credibility lies within demeanor and such great judge findings deference ince we must accord whose supra disregard only clearly 669; if erroneous. supra Accordingly, we are authorized Smith v. ambiguous presume record where the trial racial animus from an Contrary proceedings judge concluded otherwise. oversaw the explana- majority, racially-neutral there exist conclusion of State’s chal- for the exercise of the tions which served as basis clearly permissible lenges. these facts for the it was under Because relationship prosecutor # the basis of her to strike Juror lawyer-cousin impression of in a of his her belief and on the basis system justice, did not that the trial court would conclude excluding finding this offered the State err in that the reasons sufficiently prospective to withstand Bat- were race-neutral challenge. Finding case, I for reversal of this son other reason would affirm. joins Hines in this dissent.
I am to state that Justice authorized 17, 1997 Decided March April 3, 1997. denied Reconsideration appellant. Mason, J. William Margaret
Douglas Attorney, Pullen, L. Canfield, Lori C. District Attorneys, Attorney Bagley, Bowers, Michael J. E. Assistant District Attorney General, General, appellee. Smith, K. Senior Assistant Paula GEORGIA, OF INC. O COMPANY S96A1690. S ADVERTISING al. v. RUBIN et Presiding Justice. Fletcher, challenge persons who the con- case is whether issue this zoning stitutionality direct have a should ordinances