Hayes v. State

Benham, Justice,

concurring specially.

Applying the rule stated in Gamble v. State, 257 Ga. 325, 327 (357 SE2d 792) (1987), that “[t]he trial court’s findings are . . . entitled to ‘great deference,’ [cit.], and will be affirmed unless clearly erroneous,” I concur in the majority opinion’s holding “that no error was shown under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).” However, I believe it would also be appropriate to address the issue of whether a prima facie case of racially-motivated peremptory strikes was made. In order to address that issue properly, we should take this opportunity to do explicitly what the majority has done implicitly: disavow the mathematical approach taken in Aldridge v. State, 258 Ga. 75 (365 SE2d 111) (1988). Then we should establish a simple procedure for determining when a hearing must be *448held for the purpose of assessing the validity of the reasons behind the use of peremptory challenges. Lastly, we should encourage trial courts to apply strenuous analysis to the explanations offered for the exercise of suspect peremptory strikes.

1. In Aldridge, we approved the use by trial courts of a mathematical formula for determining whether a prima facie case has been made that racially motivated peremptory strikes were used. However, in approving the use of such a mathematical approach, this court expressed reservations by observing that “[d]eciding cases through the use of raw numbers carries with it inherent dangers and possibilities of illogical or unjust results.” Id. at 79. My real fear is that the use of mathematical formulae will cause us to miss the seemingly unmistakable point of Batson, which is that race is an inappropriate consideration in determining a person’s fitness for jury service. Though this court alluded to the dangers of a mathematical approach, it failed to fully identify the danger inherent in such an approach. In the case in chief, the trial court stated:

“The Court will take notice of the composition of the panel of Jurors. The Court will also take judicial notice of the fact that five of the fourteen Jurors selected in this case are black. That shows on its face and per se that there was no racial discrimination exercised by either party in this case. Consequently, the motion is overruled as Batson v. Kentucky would not be applicable in this matter.”

Although the trial court went on to receive explanations by the state concerning its use of peremptory strikes, its statement that Bat-son did not apply is clear evidence of the need for this court to disavow Aldridge because of its potential for breeding confusion as to the basic holding of Batson. We continue to see cases where consideration of the Batson issue ends with a recitation of the mathematical makeup of the community and the mathematical makeup of the jury panel selected. Such an approach is at variance with Batson and with this court’s decision in Gamble, supra. Allegiance to and respect for Batson and its progeny2 require that we disavow Aldridge’s mathematical approach because it impermissibly insulates suspect strikes from inquiry regarding racial motivation.

2. In the exercise of this court’s inherent supervisory authority over the administration of justice, we should provide a simple procedure for establishing on the record the facts to be used by the trial *449court in determining whether there has been purposeful discrimination in the use of peremptory challenges. Such a procedure was established in State v. Jones, 293 S.C. 54 (358 SE2d 701) (1987), and has been adopted in other states.3 Georgia should do likewise. Paraphrasing the rule stated in Jones so as to accommodate recent United States Supreme Court pronouncements in this area,4 we should adopt the following policy:

Decided July 3, 1991 — Reconsideration denied July 24, 1991. James Robert Sparks, L. Burton Finlayson, for appellant (case *450no. S91A0110).
*449Rather than deciding on a case by case basis whether a party is entitled to a hearing based upon a prima facie showing of purposeful discrimination, the better course to follow would be to hold a Batson hearing on any party’s request whenever the other party exercises peremptory challenges to remove members of a cognizable racial group from the venire. This bright line test would ensure consistency by removing any doubt about when a Batson hearing should be conducted. Further, this procedure would ensure a complete record for appellate review.

3. Reasons given for suspect peremptory strikes must be evaluated rigorously. As this court has cautioned,

“ ‘[R]ubber stamp’ approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson’s commitment to ‘ensure that no citizen is disqualified from jury service because of his race.’ Batson, 106 SC at 1723.” [Gamble, supra at 327, quoting from State v. Butler, 731 SW2d 265 (Mo. App. 1987).]

If we proceed in the fashion outlined above, we will usher in an era of ungrudging acceptance of the basic tenet of Batson, that is, that the integrity of the jury selection process, and thereby the entire justice system, is enhanced greatly when fitness for jury service is not determined by race.

*450Paul L. Howard, Jr., for appellant (case no. S91A0111). Lewis R. Slaton, District Attorney, Carl P. Greenberg, Assistant District Attorney, Michael J. Bowers, Attorney General, C. A. Benjamin Woolf, Mary H. Hines, for appellee.

Edmonson v. Leesville Concrete Co., 59 USLW 4574 (1991); Powers v. Ohio, 499 U. S. _ (111 SC 1364, 113 LE2d 411) (1991); Holland v. Illinois, 493 U. S. 474 (110 SC 803, 107 LE2d 905) (1990).

State v. Holloway, 209 Conn. 636 (553 A2d 166) (1989); State v. Moore, 109 N.M. 119 (782 P2d 91) (1989).

Powers, supra, made clear that the person complaining of discriminatory use of peremptory strikes need not be of the same racial group as the jurors being struck, and Edmonson, supra, by focusing on the rights of the jurors not to be subjected to racial discrimination in the jury selection process, expands the scope of Batson to include all parties to litigation.