Malone v. State, 484 S.E.2d 6 (Ga. Ct. App. 1997). · Go Syfert
Malone v. State, 484 S.E.2d 6 (Ga. Ct. App. 1997). Cases Citing This Book View Copy Cite
“at this second step of the inquiry, the issue is the facial validity of the attorney's explanation”
56 citation events (16 in the last 25 years) across 1 distinct court.
Strongest positive: Thomas v. State (gactapp, 2009-07-16)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 17 distinct citers.
discussed Cited as authority (quoted) Thomas v. State (2×) also: Cited "see"
Ga. Ct. App. · 2009 · signal: accord · quote attribution · 1 verbatim quote · confidence high
at this second step of the inquiry, the issue is the facial validity of the attorney's explanation
discussed Cited as authority (rule) Moon v. State (2×)
Ga. Ct. App. · 2006 · confidence medium
J., and Smith, P. J., concur. 1 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). 2 Evans v. State, 183 Ga. App. 436, 439 (3) ( 359 SE2d 174 ) (1987). 3 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992). 4 Chandler v. State, 266 Ga. 509, 510 (2) ( 467 SE2d 562 ) (1996). 5 Id. 6 White v. State, 257 Ga. App. 723, 725 (2) ( 572 SE2d 70 ) (2002) and cits. 7 225 Ga. App. 315 ( 484 SE2d 6 ) (1997). 8 247 Ga. App. 767 ( 545 SE2d 332 ) (2001). 9 Supra, 225 Ga. App. at 316-317 (1) (citations and punctuation omitted; emphasis in original). 10 Id. at 318 (1) (citation and punctuation omitted; emphases in origi…
cited Cited as authority (rule) Flanagan v. State
Ga. Ct. App. · 2004 · confidence medium
Malone v. State, 225 Ga. App. 315, 317 (1) ( 484 SE2d 6 ) (1997).
discussed Cited as authority (rule) Clemons v. State
Ga. Ct. App. · 2002 · confidence medium
Bradley v. State, 252 Ga. App. 293 ( 556 SE2d 201 ) (2001). 2 Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). 3 State v. Stephens, 252 Ga. 181 ( 311 SE2d 823 ) (1984). 4 Davis v. State, 214 Ga. App. 36 ( 447 SE2d 68 ) (1994). 5 Stanford v. State, 251 Ga. App. 87 ( 553 SE2d 622 ) (2001). 6 Eaton v. State, 210 Ga. App. 273 (1) ( 435 SE2d 756 ) (1993). 7 Robertson v. State, 236 Ga. App. 68, 69-70 ( 510 SE2d 914 ) (1999). 8 Hockman v. State, 226 Ga. App. 521, 523 (1) ( 487 SE2d 102 ) (1997). 9 Brown v. State, 244 Ga. App. 440, 442 (1) ( 535 SE2d 785 ) (2000). 10 Edgerton v. Sta…
discussed Cited as authority (rule) Williams v. State
Ga. Ct. App. · 2001 · confidence medium
Pope, P. J., and Mikell, J., concur. 1 Georgia v. McCollum, 505 U. S. 42, 59 (112 SC 2348, 2359, 120 LE2d 33) (1992). 2 Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). 3 Purkett v. Elem, 514 U. S. 765, 766-769 (115 SC 1769, 1770-1771, 131 LE2d 834) (1995). 4 Mitchell v. State, 230 Ga. App. 149 ( 495 SE2d 626 ) (1998). 5 Smith v. State, 232 Ga. App. 458, 459 (1) ( 501 SE2d 622 ) (1998). 6 Gamble v. State, 257 Ga. 325, 326 (2) ( 357 SE2d 792 ) (1987). 7 Jones v. State, 240 Ga. App. 339, 342 (1) ( 523 SE2d 402 ) (1999). 8 Jackson v. State, 265 Ga. 897, 900 ( 463 SE2d 699 ) (199…
discussed Cited as authority (rule) McBride v. State
Ga. Ct. App. · 2001 · confidence medium
See also Chandler, supra at 509-510 (2); Hinson v. State, 237 Ga. App. 366, 369-371 (3) ( 515 SE2d 203 ) (1999); Malone v. State, 225 Ga. App. 315, 318-319 (1) ( 484 SE2d 6 ) (1997). 18 (Citation omitted.) Id. at 318-319 . 19 See Hyman v. State, 272 Ga. 492, 494 (2) ( 531 SE2d 708 ) (2000); Curry, supra. 20 We reject as impractical the idea of remanding this case to the trial court for a determination on the issue of discriminatory intent, recognizing the difficulty of making such a factual determination based on a cold transcript of a jury selection two and a half years ago.
discussed Cited as authority (rule) Collins v. State
Ga. Ct. App. · 1999 · confidence medium
See Barnes v. State, 269 Ga. at 349 (6); Chandler v. State, 266 Ga. 509, 510 (2) ( 467 SE2d 562 ) (1996); Malone v. State, 225 Ga. App. 315, 318 (1) ( 484 SE2d 6 ) (1997); Williams v. State, 236 Ga. App. 190 (1) ( 511 SE2d 561 ) (1999). 1 Nevertheless, case-relatedness, or lack thereof, continues to be a consideration in the trial court’s determination of whether a proffered explanation is race-neutral.
discussed Cited as authority (rule) Curry v. State (2×)
Ga. Ct. App. · 1999 · confidence medium
(Footnotes omitted.) Id. “[T]he burden of persuading the trial court that the strikes were racially motivated rests with, and never shifts *514 from, the opponent of the strike.” Malone v. State, 225 Ga. App. 315, 318 (1) ( 484 SE2d 6 ) (1997).
discussed Cited as authority (rule) Smith v. State
Ga. Ct. App. · 1998 · confidence medium
Banke concur. 1 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). 2 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992). 3 (Footnotes omitted.) Chandler v. State, 266 Ga. 509, 510 (2) ( 467 SE2d 562 ) (1996). 4 (Emphasis in original.) Malone v. State, 225 Ga. App. 315, 316-317 (1) ( 484 SE2d 6 ) (1997). 5 Id. at 318 . 6 Id. at 317 . 7 Id. 8 See Turner v. State, 267 Ga. 149, 151 (2) ( 476 SE2d 252 ) (1996). 9 Id. 10 Chandler, supra at 510 . 11 265 Ga. 897, 899 (2) ( 463 SE2d 699 ) (1995). 12 226 Ga. App. 230 ( 486 SE2d 48 ) (1997). 13 226 Ga. App. 743 ( 487 SE2d 653 ) (1997).
discussed Cited as authority (rule) Wilburn v. State
Ga. Ct. App. · 1998 · confidence medium
Jordan, Assistant District Attorneys, for appellee. (c) A trial court is not required to first hear “rebuttal” of the explanations from the opponent of the strike as part of and prior to its step 3 determination as has been held in Gilbert v. State, 226 Ga. App. 230, 232 ( 486 SE2d 48 ) (1997). (d) A trial court is not required to accept any reason as long as it is race-neutral on its face, as has been found in Malone v. State, 225 Ga. App. 315, 317-319 ( 484 SE2d 6 ) (1997), and Leeks, supra at 229 ; cf. McKenzie v. State, 227 Ga. App. 778 ( 490 SE2d 522 ) (1997). (e) The record is not re…
cited Cited as authority (rule) Smith v. State
Ga. Ct. App. · 1997 · confidence medium
Malone v. State, 225 Ga. App. 315, 319 ( 484 SE2d 6 ) (1997).
discussed Cited as authority (rule) Pickett v. State
Ga. Ct. App. · 1997 · confidence medium
The strikes Pickett exercised with respect to juror nos. 2, 6 and 16 were not, on their face, racially discriminatory. 2 In other words, “[n]one of the rationales proffered by defense counsel was based on a characteristic or stereotype peculiar to any race. [Cit.]” Malone v. State, 225 Ga. App. 315, 317 ( 484 SE2d 6 ) (1997).
discussed Cited "see" Malone v. State (2×)
Ga. Ct. App. · 1999 · signal: see · confidence high
See Malone v. State, 225 Ga. App. 315 ( 484 SE2d 6 ) (1997).
discussed Cited "see" Burton v. State (2×)
Ga. Ct. App. · 1998 · signal: see · confidence high
See Malone v. State, 225 Ga. App. 315, 317 ( 484 SE2d 6 ) (1997) and Smith v. State, supra, reversing the trial court although “it is fairly easy to understand why the trial court found some of the reasons given for the peremptory strikes to be unpersuasive.” To my mind, it is extremely important to realize that the great majority of states have struggled in the “aftermath” of Purkett .
discussed Cited "see" Gilbert v. State (2×)
Ga. Ct. App. · 1997 · signal: see · confidence high
See Malone *232 v. State, 225 Ga. App. 315 ( 484 SE2d 6 ) (1997) (reversing a conviction where reasons given for strikes were race-neutral); O’Neal v. State, supra (jurors’ employment status, marital status, and hostile attitudes are race-neutral reasons for strikes); Leeks v. State, 226 Ga. App. 227 ( 483 SE2d 691 ) (1997) (potential business relationship between prospective jurors a race-neutral reason to strike). 2 In O’Neal v. State, supra, we noted that the trial court had likely combined steps two and three of the Chandler analysis and disapproved such combination.
discussed Cited "see" O'NEAL v. State (2×)
Ga. Ct. App. · 1997 · signal: see · confidence high
See Malone v. State, 225 Ga. App. 315 ( 484 SE2d 6 ) (1997); Cooper v. State, 220 Ga. App. 531, 533 ( 469 SE2d 790 ) (1996).
discussed Cited "see, e.g." Hinson v. State (2×)
Ga. Ct. App. · 1999 · signal: see, e.g. · confidence low
See, e.g., Malone v. State, 225 Ga. App. 315 ( 484 SE2d 6 ) (1997); O’Neal v. State, 226 Ga. App. 224 ( 482 SE2d 478 ) (1997); Leeks v. State, 226 Ga. App. 227 ( 483 SE2d 691 ) (1997); Gilbert v. State, 226 Ga. App. 230 ( 486 SE2d 48 ) (1997); Pickett v. State, 226 Ga. App. 743 ( 487 SE2d 653 ) (1997); Smith v. State, 229 Ga. App. 765 ( 494 SE2d 757 ) (1997); Smith v. State, 232 Ga. App. 458 ( 501 SE2d 622 ) (1998).
Malone
v.
the State; Smith v. the State
A96A1654, A96A1655.
Court of Appeals of Georgia.
Feb 18, 1997.
484 S.E.2d 6
Brownlow & Schaefer, Ira B. Brownlow, Jr., for Malone., Michael R. Hauptman, for Smith., J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, Michael J. Bowers, Attorney General, Nancy B. All-strom, Assistant Attorney General, for appellee.
Johnson, McMurray, Sorrells.
Cited by 22 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 87%
Citer courts: Court of Appeals of Georgia (1)
Johnson, Judge.

Helen Malone and Dr. Theodore Smith were tried jointly and convicted of Medicaid fraud for seeking reimbursement for psychotherapy services which had not been rendered. Malone appeals in Case No. A96A1654, and Smith appeals in Case No. A96A1655. Because the appellants raise similar enumerations of error, their appeals have been consolidated.

1. Of the eleven peremptory challenges defense counsel made on Malone’s and Smith’s behalf, ten were used against white and one against Asian-American veniremen. None of the defendants’ peremptory strikes was exercised against the African-American veniremen. The state opposed the strikes under Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992), claiming that they were used with the intent of eliminating white people from the jury. The trial court found that a prima facie case of racial discrimination had been made and then stated: “I will make him justify his strikes. If I don’t think it’s right, they will not be struck.” Defense counsel explained the strikes, but the trial court ruled that the reasons given were not race-neutral and placed five of the jurors back on the jury.

In separate briefs, Smith and Malone argue that the trial court erred in finding that the explanations defense counsel offered were not race-neutral. Smith argues further that in considering the state’s motion, the trial court erroneously merged the second and third steps of the test set forth in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), thereby placing the burden of persuasion on the proponent of the strikes. We agree with both contentions. For the reasons set out below, we reverse and remand the cases for a new trial.

“In McCollum, the United States Supreme Court extended its decision in Batson v. Kentucky and held that the equal protection clause prohibits a criminal defendant from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges. To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.” (Footnotes omitted; emphasis supplied.) Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

As noted above, after determining that a prima facie case of discrimination had been established, the trial court properly required[*316] defense counsel to explain their peremptory strikes. Defense counsel explained the five strikes at issue as follows:

Dr. Smith’s attorney explained that he struck juror no. 2 because of her age and the fact that she listed her name using “Mrs.” and her husband’s first name. Malone’s attorney added that juror no. 2 had been exposed to publicity in the case. The trial judge responded that “75 percent of them or more” had been exposed to publicity, that his own wife uses his name, and that neither reason would be accepted.

Smith’s attorney explained that he struck juror no. 8 because he did not trust her. He said she was not credible because she claimed to have studied nuclear engineering at Georgia Tech, but works at Office Depot, and that she crossed her arms and looked away when answering questions. Malone’s attorney added that he did not like the fact that the juror had a business background and therefore may be predisposed to agree with the state. The court stated that it could not accept the explanations.

Smith’s attorney could not recall why juror no. 11 was struck, while Malone’s attorney noted that he looks at the type of work a person does and that she was a data processor. The trial judge stated that he could not accept this explanation, either.

Smith’s attorney struck juror no. 13 because she worked as a manager for the federal reserve bank and she stated that she thought the government did a good job most of the time. He noted that the defense’s theory of the case was that “the government screwed up,” and that it would be hard to convince this juror of that point. The court remarked that an African-American juror who worked for the federal government was not struck. Smith’s attorney responded that the African-American juror was not struck because she was not in a supervisory position. The trial court recalled that this African-American juror was also a supervisor, but the defense attorney’s assertion that the employee was not a supervisor is corroborated by the transcript. The court stated that the difference between the two jurors was their race and rejected the explanation.

Smith’s attorney explained that he struck juror no. 18 because he said “something about North Druid Hills. And I made a note that I did not like whatever he said about it.” Malone’s attorney added that the juror had been exposed to publicity about the case and “seemed to me not to keep an open mind.” The court ruled that the juror would be placed back on the jury.

At the end of this colloquy, the trial court expressly ruled that the defendants’ strikes were not race-neutral. All five jurors were then reseated on the jury, thereby completing the jury of twelve.

In articulating a race-neutral explanation for striking a juror, the proponent of the strike is not required to enunciate a plausible or persuasive explanation, just one that is clear, reasonably specific and[*317] that does not deny equal protection. Jackson v. State, 265 Ga. 897, 898-899 (2) (463 SE2d 699) (1995). “At this second step of the inquiry, the issue is the facial validity of the [attorney’s] explanation. Unless a discriminatory intent is inherent in the [attorney’s] explanation, the reason offered will be deemed race neutral. Hernandez [v. New York], 500 [U. S. 352, 360 (111 SC 1859, 114 LE2d 395) (1991)]; [cit.].” (Punctuation omitted; emphasis supplied.) Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834, 839 [2]) (1995).

In Jackson v. State, supra, defense counsel explained that he struck a white juror because she worked in her husband’s bonding company. The trial court refused to accept the explanation as being race-neutral. Defense counsel added that his client “jumped bond” and that the juror might be biased against the defendant. The Supreme Court of Georgia reversed Jackson’s conviction and ordered a new trial, holding that the trial court should have accepted the explanation as race-neutral and then decided whether the reason given was persuasive and whether the opponent of the strike had established discriminatory intent. Id. at 899.

Similarly, in Chandler v. State, supra, the Supreme Court of Georgia reversed a conviction and ordered a new trial where the trial court erroneously failed to accept defense counsel’s explanation as race-neutral. When the state in that case raised a McCollum objection, defense counsel explained that he struck two white jurors because they were in managerial positions and had authoritarian personalities. He claimed that jury surveys and mock trials had shown he should avoid authoritarian figures when selecting jurors. Chandler at 509. The Supreme Court held that Chandler had articulated a race-neutral reason for striking the jurors, one that was not based on either race or sex and that, even under our deferential standard of review, the trial court’s finding was clearly erroneous and resulted in an illegally constituted jury. Id. at 510.

In the instant case, it is fairly easy to understand why the trial court found some of the reasons given for the peremptory strikes to be unpersuasive. However, when considered in light of the controlling authorities cited above, one has no choice but to conclude the explanations given were facially valid and evidenced no discriminatory intent, i.e., were race-neutral. None of the rationales proffered by defense counsel was based on a characteristic or stereotype peculiar to any race. Turner v. State, 267 Ga. 149, 152 (476 SE2d 252) (1996). Therefore, the trial court’s finding that the explanations were not race-neutral was clearly erroneous.

The state’s argument that the explanations were properly rejected because defense counsel did not show that the explanations were case-related is without merit. We note that the question of whether the reasons given for the strikes must be related to the spe[*318] ciñes of the case is, as Presiding Judge Pope wrote in a special concurrence in Parker v. State, 219 Ga. App. 361, 364-365 (464 SE2d 910) (1995), “in a state of flux” in the aftermath of Purkett, supra, where the U. S. Supreme Court did not require the race-neutral reason, i.e., that the juror had long hair and facial hair, to be related to the case. See also Chandler, supra. Nonetheless, because counsel in the instant case did give case-related reasons for striking juror nos. 8 and 13, this argument must fail in any event.

Whether the explanations should be believed and accepted as non-discriminatory is a different question from whether the explanations are race-neutral. Indeed, “[i]t is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Citations and punctuation omitted; emphasis in original and supplied.) Purkett, supra.

It is possible that the trial court in this case understood counsel’s explanations to be race-neutral on their face, but did not accept them because it believed the reasons to be pretextual. If we are correct in our assumption, the trial court prematurely evaluated the persuasiveness of defense counsel’s reasons for exercising the strikes and placed the ultimate burden of persuasion upon the proponent of the strikes when, under the controlling authorities, it is absolutely clear that the ultimate burden of persuasion rests with the opponent of the strikes. Jackson, supra at 899 (2). Because the trial court forced Malone and Smith to be tried by an illegally constituted jury, a new trial is demanded. See id. at 899-900 (2); Chandler, supra at 510.

We note that we do not reach this result very easily. We realize the difficulty trial judges face in creating a record which unequivocally shows that they considered each step of the three-part analysis separately. Indeed, there may be a natural tendency to consider the last two steps together, and decide at the moment the explanation is given whether it is silly, plausible, persuasive or pretextual. However, it is absolutely clear that the burden of persuading the trial court that the strikes were racially motivated rests with, and never shifts from, the opponent of the strike. See Purkett, supra. By requiring judges to consider each of the three parts of the Batson analysis separately, we safeguard against the burden of persuasion being[*319] improperly shifted to the strike’s proponent. For example, in the cases under consideration here, the opponent of the strikes established a prima facie case of racial discrimination and the proponents offered race-neutral explanations for the strikes. Without question, some of the explanations offered for the strikes were weak and unpersuasive. But they were valid on their face, and that is what matters at this step of the inquiry. Where, as here, the trial court forces the strikes’ proponents to defend at step two explanations which were on their face race-neutral, it impermissibly transforms the opponent’s burden of proving purposeful discrimination into the proponents’ burden of disproving discrimination. This is precisely the type of error the three-step analysis is intended to guard against.

Decided February 18,1997 Reconsideration dismissed March 10,1997. Brownlow & Schaefer, Ira B. Brownlow, Jr., for Malone. Michael R. Hauptman, for Smith. J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, Michael J. Bowers, Attorney General, Nancy B. All-strom, Assistant Attorney General, for appellee.

2. Based on the foregoing, we do not reach the other enumerations of error asserted by appellants.

Judgments reversed and cases remanded for new trial.

McMurray, P. J, and Judge Marvin W. Sorrells concur.