FIFTH DIVISION
MCFADDEN, P. J.,
GOBEIL and PINSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
May 2, 2022
In the Court of Appeals of Georgia
A22A0567. JOHNSON v. THE STATE.
MCFADDEN, Presiding Judge.
After a jury trial, Derek Alexander Johnson was convicted of and sentenced
for1 several crimes in connection with a fatal shooting during a drug sale: voluntary
manslaughter, criminal attempt to sell marijuana, and possession of a firearm by a
convicted felon. On appeal, Johnson argues that the trial court erred in seating four
jurors after the state challenged Johnson’s exercise of peremptory strikes. But
contrary to his argument, the record shows that the trial court conducted the proper
analysis and did not err in that ruling. Johnson also argues that the trial court
1
Johnson was also convicted of felony murder, but the trial court merged that
conviction into the voluntary manslaughter conviction for sentencing purposes, so the
felony murder conviction is a nullity. See Nazario v. State, 293 Ga. 480 (746 SE2d
109) (2013).
improperly commented on the evidence while questioning two trial witnesses, but he
did not object to the trial court’s questions and he has not shown plain error. So we
affirm.
1. Ruling on peremptory strikes.
After the state challenged Johnson’s exercise of peremptory strikes as
discriminatory based upon either race or gender, the trial court reseated four jurors.
Johnson argues this decision was error. He contends that the trial court did not
properly evaluate the state’s challenge but instead combined steps of the applicable
analysis, thereby impermissibly shifting the burden of persuasion to him and failing
to determine if the state had proved discrimination. But as detailed below, the record
shows otherwise.
“[I]t is unconstitutional for a prosecutor or defense counsel to exercise a
peremptory challenge to a prospective juror because of the juror’s race or gender.”
Robinson v. State, 278 Ga. 134, 135 (1) (598 SE2d 466) (2004). In Batson v.
Kentucky, 476 U. S. 79, 89-98 (III) (106 SCt 1712, 90 LE2d 69) (1986), the United
States Supreme Court set out a framework for evaluating whether a prosecutor’s
peremptory strikes were racially discriminatory, and that framework has been
extended to strikes that discriminate as to gender and to strikes made by defense
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counsel. See J. E. B. v. Alabama, 511 U. S. 127, 145-146 (V) (144 SCt 1419, 128
LE2d 89) (1994); Georgia v. McCollum, 505 U. S. 42, 59 (IV) (112 SCt 2348, 120
LE2d 33) (1992). Under that analytical framework,
the trial court must engage in a three-step process to determine if the
defendant’s peremptory challenges were used in a racially
discriminatory manner [or a manner that discriminated due to gender].
The opponent of a peremptory challenge must make a prima facie
showing of racial [or gender] discrimination; the burden of production
shifts to the proponent of the strike to give a race-neutral [or gender-
neutral] reason for the strike; the trial court then decides whether the
opponent of the strike has proven discriminatory intent. Although the
burden of production shifts to the defendant if the [s]tate makes a prima
facie case, the ultimate burden of persuasion as to discriminatory intent
rests with — and never shifts from — the [s]tate.
Edwards v. State, 301 Ga. 822, 825 (2) (804 SE2d 404) (2017) (citations omitted).
The record shows that, in step one of this analysis, the state argued that the
composition of the jury by race and gender did not resemble the composition of the
group of prospective jurors, and the trial court found the state had made a prima facie
case of racial and gender discrimination. Johnson did not challenge that finding at the
time.
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On appeal, he argues only that the state failed to perfect the record with regard
to whether there was a prima facie case of discrimination. To the extent this argument
concerns the appellate record it has no merit, because it is Johnson’s burden, as the
appellant, to show error affirmatively by the appellate record. See Arnold v. State, 198
Ga. App. 514, 516 (3) (402 SE2d 312) (1991). The decisions Johnson cites in support
of this argument do not hold otherwise. Instead, those decisions are procedurally
inapposite, because the appellants in those cases were the persons challenging the
exercise of peremptory strikes and, as such, their burden of showing error by the
appellate record included establishing a prima facie case of discrimination. See, e. g.,
Shaw v. State, 201 Ga. App. 438, 439-440 (1) (411 SE2d 534) (1991). But in any
event, “[s]tep one of the inquiry is moot in the present case because [Johnson]
tendered his purportedly race- [and gender-]neutral explanations for the peremptory
strikes.” Harrison v. State, 257 Ga. App. 718 (572 SE2d 4) (2002).
The record shows that the trial court then moved to step two, stating that “the
burden shifts to the defendant to explain the striking[.]” This statement, in context,
refers to Johnson’s burden of production and does not support Johnson’s argument
that the trial court improperly imposed upon him a burden of persuasion. See
Edwards, 301 Ga. at 825-826 (2) (a trial court’s reference to the “burden” of the
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proponent of peremptory strikes must be considered in context to determine if the trial
court conducted the proper inquiry into the strikes).
At this point, the record shows that Johnson offered race- and gender-neutral
explanations for the strikes. Johnson was “not required to enunciate an explanation
that is persuasive, or even plausible. Rather, a neutral explanation means an
explanation based on something other than the race [or gender] of the juror. Unless
a discriminatory intent is inherent in the proponent’s explanation, the reason offered
will be deemed race [or gender] neutral.” Jackson v. State, 265 Ga. 897, 898 (2) (463
SE2d 699) (1995) (citations and punctuation omitted). Johnson’s explanations for
striking the four jurors at issue satisfied this minimum requirement. Among other
things, he noted that one had law enforcement experience and was a crime victim, one
was a business owner and a crime victim, one was “a member of the country club
crowd” whom Johnson’s counsel thought would be “more law and order than the
general citizenry,” and one was an IT worker. These explanations were based on
something other than the jurors’ race or gender and were not inherently
discriminatory.
The record shows that after Johnson’s counsel offered race- and gender-neutral
explanations for his strikes, the trial court asked the prosecutor if he wanted “to argue
5
that – the issues?” By doing so, the trial court “implicitly indicat[ed] that [he] was
moving to step three [of the analysis].” Edwards, 301 Ga. at 825 (2). See also
Coleman v. State, 301 Ga. 720, 724 (4) (804 SE2d 24) (2017). The prosecutor then
argued to the trial court that the reasons given by Johnson’s counsel for seven of the
eight strikes were pretextual (including the four strikes at issue here), and Johnson’s
counsel interjected arguments for why the strikes were not pretextual. Ultimately, the
trial court found that four of the challenged strikes were “an improper strike” and
reseated those jurors over Johnson’s objection. The trial court found that the other
challenged strikes were proper.
We agree with Johnson that the record could be clearer. But “[w]e conclude .
. . from the context and the entirety of the discussion that the trial court properly
engaged in . . . step[ ] three [of the] analysis.” Dunn v. State, 304 Ga. 647, 651 (2)
(821 SE2d 354) (2018). Nothing in the record suggests that the trial court prematurely
ended the analysis at step two by rejecting Johnson’s explanations as not race- or
gender-neutral. Compare Jackson, 265 Ga. at 898-899 (2) (trial court erred by
prematurely evaluating the persuasiveness of the defendant’s explanations as part of
the trial court’s decision that the explanations were not race-neutral); Harrison, 257
Ga. App. at 719 (same). To the contrary, the trial court moved into step three by
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inviting the state to argue whether Johnson’s proffered explanations were pretextual
and by hearing both sides’ positions on that issue. See Edwards, 301 Ga. at 825 (2);
Coleman, 301 Ga. at 724 (4). Because “the trial court heard and considered the
[s]tate’s response [to Johnson’s explanations before he] found [race and] gender
discrimination[, t]he trial court did not end [his] analysis at step two [and he] did not
shift the burden of persuasion to [Johnson].” Tessmer v. State, 273 Ga. 220, 225 (5)
(539 SE2d 816) (2000).
Where, as here,
all three steps of the . . . analysis are completed and an explanation for
the exercise of a peremptory strike is given, the trial court must
ultimately decide the credibility of such explanation, and because the
third step of the . . . procedure mandates that the trial court act as the
trier of fact, the trial court’s findings are to be given great deference and
are to be affirmed unless clearly erroneous.
Dunn, 304 Ga. at 652 (2) (citation and punctuation omitted). In Georgia the clearly-
erroneous standard is equivalent to the any-evidence standard. Morrell v. State, 313
Ga. 247, 251 (__ SE2d __) (2022). Johnson does not argue that the trial court’s
exercise of discretion in this regard was erroneous; instead, he argues that the trial
court “failed to determine” whether the state had proved discriminatory intent.
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But contrary to Johnson’s position, the trial court was not required to make
express findings on that point. A trial court’s finding of pretext may be implicit, see
Daniels v. State, 306 Ga. 559, 565-566 (2) (832 SE2d 372) (2019), and the “proffer
of a pretextual explanation naturally gives rise to an inference of discriminatory
intent.” Toomer v. State, 292 Ga. 49, 55 (2) (b) (734 SE2d 333) (2012) (citation and
punctuation omitted). See also Coleman, 301 Ga. at 723-724 (4) (holding that the trial
court is not required to make an express finding as to whether purposeful
discrimination in a jury strike was shown). So although the trial court did not clearly
express his findings on the point, “the record indicates that the trial court in fact
assessed the totality of the circumstances and found . . . discriminatory intent in
[Johnson’s] use of peremptory strikes [against the four reseated jurors], thereby
completing the Batson inquiry. . . . We discern no clear error in this ruling.” Coleman,
301 Ga. at 724 (4) (footnote omitted), citing Wilburn v. State, 230 Ga. App. 619, 623
(2) (497 SE2d 380) (1998) (physical precedent) (“[A]lthough a clearer record would
allow us to rely less on implication and more on the actual findings of the trial court,
based on this unclear record we cannot conclude that the trial court clearly erred in
reseating the stricken jurors.”) (emphasis in original).
2. Trial court’s comments on the evidence.
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Johnson argues that his conviction must be reversed because the trial court
made two comments on the evidence that expressed or intimated the trial court’s
opinion on what had or had not been proved, in violation of OCGA § 17-8-57.
Because Johnson did not object to the comments, we will review the claimed error
only for “plain error which affects substantive rights of the parties.” OCGA § 17-8-57
(b). This is so even though the trial occurred before OCGA § 17-8-57 (b)’s effective
date. See Roberts v. State, 305 Ga. 257, 263 (4) n. 4 (824 SE2d 326) (2019) (plain
error review established in OCGA § 17-8-57 (b) applies retroactively).
The challenged comments occurred during the testimony of two state’s
witnesses who described telephone conversations they had with Johnson in which he
discussed the shooting. Johnson argues that questions posed to the witnesses by the
trial court improperly implied that the trial court believed the telephone conversations
about which the witnesses testified had in fact occurred.
In the first instance the trial court asked a question to clarify an exchange
between the witness and the prosecutor:
[The Prosecutor]: The defendant told you after he took – after [the
victim] took the marijuana from his lap, that [the victim] attempted to
run away and he hit him? Isn’t that what defendant told you?
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[The Witness]: Yes.
The Court: Who hit him?
The Witness: I guess [Johnson] hit him with his hands.
The Court: No, no. I’m not asking you to guess, but I want to know who
the defendant said – who hit whom? [Johnson] hit [the victim], or [the
victim] hit [Johnson]?
The Witness: To be honest, I don’t remember like which way it went. I
just remember something being said that – I’m not sure.
The Court: All right.
In the second instance the trial court asked several questions at the end of the
witness’s direct examination, including the following questions related to the
witness’s earlier testimony about Johnson’s depiction of the shooting:
The Court: When you talked with Mr. Johnson on the phone, and he told
you about this event that you testified to.
The Witness: Yes, sir.
The Court: Did he say if anybody else was with him in the car?
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The Witness: Yes, sir. He said his home boy.
The Court: Do you know who that is?
The Witness: No, sir.
The trial court’s questions to these witnesses were not improper. A “trial court
may propound a clarifying question in order to develop the truth of a case without
violating OCGA § 17-8-57. The extent of such questioning is a matter of the trial
court’s discretion, as long as the questioning does not intimate an opinion as to what
has or has not been proved or as to the guilt of the accused.” State v. Nickerson, 324
Ga. App. 576, 578-579 (1) (749 SE2d 768) (2013) (citation omitted). The transcript
of the questions in this case indicates that, taken in context, the questions “were
interposed to develop the truth and to clarify the witnesses’ testimony[.]” Id. at 580
(1). The questions “were entirely objective, did not suggest any particular answer to
the witness[es], and related to the events [about which the witnesses had just
testified].” Curry v. State, 283 Ga. 99, 102 (4) (657 SE2d 218) (2008). While the
questions referred to portions of that testimony, the questions did not imply that the
trial court did — or did not — believe those witnesses were telling the truth about
having spoken to Johnson. Compare Alexander v. State, 294 Ga. 345, 348 (3) (751
11
SE2d 408) (2013) (finding no violation of OCGA § 17-8-57 when the trial court
posed questions “for the purpose of clarifying [a] witness’ testimony concerning her
prior statement and did not express or intimate an opinion regarding the credibility
of the evidence being offered”) with State v. Anderson, 287 Ga. 159, 160-161 (1)
(695 SE2d 26) (2010) (finding that the trial court’s questioning of a witness was an
expression of opinion that venue had been proven in violation of OCGA § 17-8-57
when the trial court, after asking a witness about the location of a store at which a
fraudulent credit card transaction allegedly occurred, stated “I just wanted to make
sure”).
For these reasons, “we conclude that the trial court’s questions fell within the
court’s discretion to ask questions to develop the truth of the case.” Curry, 285 Ga.
at 102 (2). “Because there was no error, there was per force no plain error warranting
reversal.” Crenshaw v. State, 341 Ga. App. 406, 409 (801 SE2d 92) (2017).
Judgment affirmed. Gobeil and Pinson, JJ., concur.
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Derek Alexander Johnson v. State
Combined Opinion