Clayton v. State

341 Ga.App. 193

797 S.E.2d 639

CLAYTON

v.The STATE.

Minor

v.The State.

A16A2147

A16A2148

Court of Appeals of Georgia.

February 17, 2017

Reconsideration Denied March 31, 2017

Raina Jeager Nadler, for Appellant in A16A2147.

Amelia Greeson Pray, D. Victor Reynolds, Marietta, for Appellee in A16A2147 and A16A2148.

Ashleigh Bartkus Merchant, Marietta, for Appellant in A16A2148.

Doyle, Chief Judge.

Duvalle Rene Minor and Robert Anthony Clayton were jointly indicted, tried, and convicted of armed robbery and criminal attempt to commit armed robbery. Following the denial of their motions for a new trial, they appealed their convictions to this Court, and in a consolidated opinion in Minor v. State (" Minor I "),¹ the Court affirmed the judgments of conviction but remanded the cases for a new hearing to determine whether the State violated Batson v. Kentucky² when it peremptorily struck Juror No. 31 from the venire.³ On remand, the trial court held a hearing and found that no Batson violation had occurred. In Case No. A16A2147, Clayton appeals that ruling, and in Case No. A16A2148, Minor does the same. We have consolidated the appeals for review, and for the reasons that follow, we reverse.

Relevant Facts

As noted in the earlier appeal, the voir dire was not transcribed, but the record reflects that the State exercised nine strikes, six against African-American people and three against white people, and the resulting jury was composed of two African-American jurors and nine white jurors. After defense counsel⁴ raised the Batson issue on this ground, the trial court "require[d] the State to articulate its reasons for the peremptory strikes, rendering moot the issue of whether [defense counsel] had established a prima facie case."⁵

The State gave as its reasons for striking Juror No. 31 as follows:

[The juror] has a conviction for theft by receiving. This is a theft-related case. [The juror] also has gold teeth. Now, that's not a definitive factor, but the fact of the matter is, in general, when I see jurors who have gold teeth that's—I just don't like that so I don't think that's race. If they were white and had gold teeth I would have the same reaction. But it's primarily the theft, the fact that he has a theft of a motorcycle, that charge.

Defense counsel then countered that the alleged theft charge was actually a misdemeanor criminal damage charge, and he began to challenge the State's proffered gold-teeth rationale when the trial court cut him off:

Defense counsel: Your Honor, I believe it was clear that it wasn't a theft ... He was charged with misdemeanor criminal damage. It wasn't a felony that was knocked down to a misdemeanor. It started as a misdemeanor, and I don't see the issue there. Regarding gold teeth—

Trial court: I'm not impressed by the gold[-]teeth argument. I'm not impressed by his gold[-]teeth argument.

Defense counsel: Neither am I, and neither was—I believe his name was David, on record. It was a case I tried with Mr. Knighton—

Trial court: Okay. Let's not go there. I said I'm not going to accept the [State's] gold[-]teeth argument .⁶ Do you want to talk me out of it?

Defense counsel: You say you're not impressed with it. I'm good with that.

Trial court: No, he was charged with a theft. This was an interesting jury, quite frankly. An interesting jury panel—and we do have some folks on there who have had some charges, because there just wasn't any way for everybody—to get everybody off. But I do find it to be race neutral. And the last strike was of a white female. So I deny the Batson [c]hallenge.

In Minor I , this Court held that the above colloquy showed that the trial court failed to allow defense counsel to fully articulate "that the prosecution's strike based on Juror No. 31's gold teeth arose from a racial stereotype," so the record was incomplete with respect to the requisite findings under Batson .⁷ Having so found, this Court:

remand[ed] the case in order to permit the defense to [fully explain its argument that the strike was racially discriminatory] and to allow the trial court to make findings under Batson . Should the trial court determine that the State did not fulfill its burden to provide racially-neutral reasons, a new trial is in order. Should the trial court determine that no Batson violation occurred, appellant's convictions will remain in effect.⁸

On remand, the trial court held a hearing in which she limited the argument to address only the gold-teeth rationale as to Juror No. 31, and defense counsel outlined their objections. Defense counsel explained that the State's gold-teeth rationale was a race-based stereotype of African-American culture, and the State's reliance on Juror No. 31's alleged involvement in the theft of a motorcycle was merely a pretext for the State's explicitly race-based strike. The State responded by re-stating that its rationale was based on both the juror's criminal history and the fact that he had gold teeth. The prosecutor explained:

My recollection is actually ... it was actually gold teeth. I think it was his entire mouth. I don't believe that is race related. I think it's something that you choose. You go to the dentist. You decide what you want. You get that cosmetic.

I think around the time period of this trial ... there [was] Ryan Lochte at the Olympics put on the gold teeth[,] and there was this attitude or there were these other people who were wearing this. I don't think it's race related. I don't consider it race related.

And for me, the gold[-]teeth issue is similar—there are a lot of people who have a, I guess, an interest[,] and they'll [dye] their hair blue or they'll [dye] their hair red. There are people who wear nose rings or have eyebrow rings. I don't think that ... makes them a bad person, but I think what it says to them is they are purposely setting themselves apart. They're being iconoclastic. They want to look different from the normal person ... [T]hat is telling me ... a little bit about the thinking of that person ... And that, in combination with the fact that he was arrested for felony theft of a motorcycle and was pled down to theft by receiving of a motorcycle, forms a picture for me of that juror and what is going on in his mind ... It has nothing to do with race.

On rebuttal, defense counsel reiterated the argument that gold teeth are a stereotype associated with the African-American community.

Based on the State's explanation, the trial court held that the State's reasons for striking Juror No. 31 were race neutral. With respect to the gold-teeth argument, the trial court made no express findings as to whether having gold teeth was a race-based stereotype, but accepted the State's explanation that it would strike a juror with gold teeth regardless of race: "The Court finds that this is a race[-]neutral explanation. Jurors who want to be different i[n] such an obvious way do not usually make good jurors, they tend to not want to go along with the majority in reaching a verdict. They want to be different." Thus, the court held that no Batson violation had occurred. Minor and Clayton now appeal from that ruling.

Legal Analysis

The analysis of a Batson challenge involves a three-step process: (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 the strike; and (3) the court must decide whether the opponent of the strike has proven [the proponent's] discriminatory intent.⁹

The focus of this case is on step two of the Batson process. Rulings made at this step

are entitled to no deference [on appeal]. There are numerous appellate decisions ruling as a matter of law that proffered explanations were or were not race-neutral. Therefore, in practice, appellate review after a step two ruling is de novo.... [O]ur review of rulings at stage two is analogous to our rulings on motions for summary judgment or to our former rulings on demurrers in common law.¹⁰

With respect to the State's burden at step two as the proponent of the strike, the State

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.¹¹

It is well-settled that, at least in the context of a criminal trial, "[a] prospective juror's criminal history is an adequate race-neutral reason to" exercise a peremptory strike.¹² "A reasonable suspicion about a prospective juror's impartiality [towards the State] that falls short of justifying an excusal for cause might well justify the exercise of a peremptory strike."¹³ Thus, the State's reliance on Juror No. 31's criminal history was a valid, race-neutral reason to exercise the strike.

Nevertheless, also at step two of the Batson process, the State explicitly relied on the fact that Juror No. 31 had gold teeth in his "entire mouth." "Our precedent states that an explanation is not racially neutral if it is based upon either a characteristic that is specific to a racial group or a stereotypical belief that is imputed to a particular race."¹⁴ Thus, although the State argued otherwise,¹⁵ we cannot ignore the fact that having a full mouth of gold teeth is a cultural proxy stereotypically associated with African-Americans.¹⁶ As with most stereotypes, this characteristic is not couched in terms that explicitly reference race—nothing about having gold teeth describes skin tone in a literal sense—but it has widely operated as a proxy for the African-American race (or a subset of that race).¹⁷ The dissent by Judge McFadden points out that having gold teeth is iconoclastic, which could be a valid objection to a juror if it were a race-neutral iconoclasm such as dying hair unnatural colors or having unusual visible...