Orr v. State

Deen, Presiding Judge.

Appellant Orr and a co-defendant were found by police officers in a wooded area less than 100 feet from a house where a burglar alarm had sounded only minutes earlier. Nothing appeared to be missing from the house, but the front door had been kicked in and the rooms ransacked.

The co-defendant admitted that he and Orr had burglarized the house; Orr, however, denied that he had had any part in the affair *379and essentially averred (although in several mutually inconsistent statements) that he had merely happened to accompany the co-defendant to the area but had himself been en route to a nearby hardware store, and also that he was taking some gold chains to pawn. No chains were found in his possession.

A Floyd County jury found Orr guilty, and, after denial of his motion for new trial, he was granted an out-of-time appeal. He enumerates as error (1) the prosecution’s impermissibly striking black jurors on the basis of race alone; (2) the finding of “guilty” on the sole basis of co-defendant’s testimony; and (3) the court’s failure to declare a mistrial when a juror stated that her own verdict had been “not guilty.” Held:

1. The record shows that of the forty-two potential jurors impaneled for voir dire, three were black. One of these three was selected as a juror, and two were struck by the State. When challenged on the ground of the holding in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), the prosecutor stated that he had struck one venireman because of her similarity in age to the 24-year-old black defendant and the other because she had a criminal record. The trial court determined that, even with the aid of the legal presumption favoring a finding of discrimination in the exercise of peremptory challenges, the defendant had produced no evidence of racial discrimination beyond the bare fact that two blacks had been struck; and that he had therefore failed to carry his burden of proving that there had been purposeful discrimination against the defendant through manipulation of the venire. Batson, supra at 1722, 1723. Moreover, the record reveals that defense counsel did not cross-examine the prosecuting attorney. Batson, supra; Powell v. State, 187 Ga. App. 878 (372 SE2d 234) (1988). This enumeration is without merit.

2. Appellant’s allegation concerning the impropriety of basing a conviction solely on the testimony of a co-defendant is also without merit. The trial transcript reveals that the conviction was based upon an abundance of evidence other than that provided by the co-defendant. The testimony of investigating officers and of the owner of the burglarized house was consistent with the findings at the scene of the crime, and the testimony of each of these witnesses was also consistent with the testimony of the others, as well as with that of the co-defendant. Moreover, Orr’s own testimony was filled with inconsistencies as to why he was where he was when discovered by investigating officers, and where he had been previously. Additionally, as noted supra, the gold chains he was ostensibly en route to pawn were never found; nor did he offer a satisfactory explanation for why he had “changed his mind” and “returned to” the scene of the burglary.

3. Appellant’s third assignment of error does not accurately represent the situation to which it refers. During the routine polling of *380the jury which followed publication of the verdict, one juror replied “No” to the question, “Was that your verdict?” The court ordered the jurors back to the jury room, but the juror who had said “No” interrupted to say, “But we changed, I mean, we’ve — we’ve gone through it so many times.” The court then asked, “Well, the question to you is this, was the verdict that was published your verdict?” The juror replied, “That was, yes, sir.” The court then asked, “Is that now your verdict?”, and the juror answered “Yes,” whereupon the court made a few explanatory remarks to those present in the courtroom and resumed normal proceedings. This enumeration is patently without merit.

Judgment affirmed.

Carley and Sognier, JJ., concur specially.