Aggravated child molestation, etc. Bibb Superior Court. Before Judge Christian, Senior Judge.
Steven M. Harrison, for appellant.
K. David Cooke, Jr., District Attorney, Jason M. Wilbanks, Assistant District Attorney, for appellee.
BOGGS, Judge. Barnes, P. J., and Branch, J., concur.
A jury found Gregory Leon Jackson, Jr., guilty on one count of aggravated child molestation, three counts of child molestation, and one count of sexual battery (as a lesser included offense of child molestation). Following the denial of his second amended motion for new trial, Jackson appeals, citing multiple claims of error, including several grounds of ineffective assistance of trial counsel. For the following reasons, we affirm.
1. Jackson argues that the State used its peremptory strikes to remove prospective African-American jurors in a racially discriminatory manner. Jackson complains specifically about the State's striking of Juror #8 and Juror #20.
The United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (106 S.Ct. 1712, 90 L.Ed.2d 69) (1986),
established a three-step process for evaluating claims of racial discrimination in the use of peremptory strikes: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for [330 Ga.App. 109] the strike; and (3) the court must decide whether the opponent of the strike has proven [the proponent's] discriminatory intent. ... At Batson step two, the proponent of the strike need only articulate a facially race-neutral reason for the strike. Step two does not demand an explanation that is persuasive, or even plausible. At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.
(Citation and punctuation omitted.) Heard v. State, 295 Ga. 559, 566 (3) (761 S.E.2d 314) (2014). " We review the trial court's denial of the Batson motion under a clearly erroneous standard." (Citation omitted.) Johnson v. State, 266 Ga. 775, 777 (4) (470 S.E.2d 637) (1996).
Jackson established a prima facie showing of discrimination by demonstrating that the State used its strikes to remove five African-American members of the jury panel. He presents argument with regard to two of those removed. The State explained that it struck Juror #8 because " [h]e was single. He doesn't have any children. He's young. We didn't have a lot of information about him. ... And pretty much watching him, most of the time he was disinterested in what was going on and not paying attention. So we struck him for that." Jackson argues that because the State struck this juror based upon the prosecutor's observation, and the trial court made no findings regarding the juror's demeanor, there is nothing in the record to support the State's proffered reason for the strike. But the record reveals that the State also struck this juror because he had no children, and explained in striking another juror for the same reason that " since we're dealing with children here, we wanted somebody that had at least some kind of dealing with children." The Supreme Court of Georgia has held that this explanation is race-neutral, Smith v. State, 264 Ga. 449, 452 (3) (448 S.E.2d 179) (1994), and we must defer to the trial court's conclusion that the State overcame the prima facie case of discrimination. See Floyd v. State, 281 Ga.App. 72, 73-74 (635 S.E.2d 366) (2006).
Jackson also complains about the State's explanation for striking Juror #20:
[H]is wife was an OB/GYN, and since we don't have any specific evidence of any
injury in this case, I don't know what knowledge he would have with his wife, OB/GYN, so we struck him ... [w]e don't have any knowledge what he knows about OB/GYN from his wife and injuries from rape cases or [330 Ga.App. 110] child molestation cases, so we wanted to strike him because there's no injuries that we'd show in this one.
Jackson asserts that this explanation is vague and could be used to strike anyone. But the " basis for a peremptory strike need not make sense or be persuasive; it must only be race[-]neutral and free from discriminatory intent." (Citation and footnote omitted.) Hodge v. State, 287 Ga.App. 750, 751 (1) (652 S.E.2d 634) (2007) (trial court authorized to find prosecutor's explanation regarding juror's spouse's unemployment met race-neutral requirement). Because this explanation was not based upon the race of ...