Hogan v. State

308 Ga. 155

839 S.E.2d 651

HOGAN

v.The STATE.

S19A1448

Supreme Court of Georgia.

Decided: February 28, 2020

Margaret E. Bullard, for appellant.

Paul L. Howard, Jr.,District Attorney, Lyndsey H. Rudder, Stephany J. Luttrell, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Leslie A. Coots, Assistant Attorney General, for appellee.

WARREN, Justice.

Appellant Fernando Hogan appeals from his convictions for felony murder and other crimes stemming from the shooting death of Kilon Williams and the aggravated assault of Williams's friend, Nicholas Gibson.¹ On appeal, Hogan contends only that the trial court erred by granting the State's challenge to Hogan's peremptory strikes of three prospective jurors and reseating those jurors. Upon our review of the record, we conclude that Hogan's conviction and sentence for the aggravated assault of Gibson should have been merged, and so we vacate that conviction and sentence. Finding no other reversible error, we otherwise affirm the judgment of the trial court.

1. Viewed in the light most favorable to the jury's verdicts, the evidence presented at Hogan's trial showed that, in the early morning hours of July 3, 2014, Williams and Gibson, who were going to a bar, parked their car on a side street near Ponce de Leon Avenue in Atlanta. Gibson began to walk to the bar, while Williams remained in the car to text someone. After Gibson had walked for about two minutes, he saw a man standing on the street apparently directing someone who was trying to park his car. But the parking job was a ruse, and the man who appeared to be directing the car pulled a gun on Gibson and told him to strip down to his underwear. Gibson did so, leaving his wallet, watch, glasses, cell phone, and clothes on the ground. The driver then got out of the car and picked up the items. The armed man told Gibson to run, and Gibson began to walk away quickly. The armed man then got into the car, and the occupants of the car drove to where Williams was parked. The armed man jumped out of the car, shot Williams several times, and got back into the car. The occupants of the car then sped off.

At trial, Gibson identified the driver as Hogan and the armed man as Hogan's co-defendant, Lamontez Hinton. Evidence was introduced that, after Gibson's phone was stolen, multiple calls were placed to a phone number belonging to Hogan's cousin, Lanquesha Washington. The evidence showed that on the morning of July 3, Hogan called Washington from a phone number that Washington did not recognize. Hogan, sounding scared, told her that he and Hinton had been in an altercation, saying that they had robbed someone or had been the victims of a robbery. According to Washington, Hogan added that a shooting had occurred and that he thought someone might have died. Later in the day on July 3, Washington went to her mother's house, where Hogan lived, and talked with Hogan there. Washington saw Hogan with a black wallet that did not belong to him and overheard Hogan on the phone sounding as though he was trying to transfer money from different cards or accounts. Hogan later texted Washington, saying that he thought someone might have died, and later told her that he was watching the news and saw reports of the incident.

Hogan does not contest the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's general practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Hogan guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Hogan contends that the trial court's rejection of three of his peremptory challenges and its reseating of the affected jurors did not comply with Georgia v. McCollum , 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). In McCollum , "the test announced in Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), forbidding purposeful racial discrimination in the State's use of peremptory strikes, was extended to peremptory juror challenges made by criminal defendants." Daniels v. State , 306 Ga. 559, 563-564, 832 S.E.2d 372 (2019). "When the State raises a McCollum objection, 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." Edwards v. State , 301 Ga. 822, 824-825, 804 S.E.2d 404 (2017). First, the State is required to "make a prima facie showing of racial discrimination"; second, "the burden of production shifts to the [defendant] to give a race-neutral reason for the strike"; and third, "the trial court then decides whether the [State] has proven discriminatory intent." Allen v. State , 280 Ga. 678, 680, 631 S.E.2d 699 (2006) (citation and punctuation omitted). "Although the burden of production shifts to the defendant if the State makes a prima facie case, the ultimate burden of persuasion as to discriminatory intent rests with—and never shifts from—the State." Edwards , 301 Ga. at 825, 804 S.E.2d 404. "In reviewing a trial court's McCollum ruling, we afford deference to the trial court's findings and affirm them unless they are clearly erroneous." Dunn v. State , 304 Ga. 647, 649, 821 S.E.2d 354 (2018) (citation and punctuation omitted).

As a preliminary matter, we observe that the individual questioning of prospective jurors was not transcribed, but the State's McCollum challenge and the ensuing discussions involving the State, defense counsel, and the trial court were transcribed. Our review is necessarily "limited to the portions of voir dire that were transcribed." Nwakanma v. State , 296 Ga. 493, 500, 768 S.E.2d 503 (2015), disapproved of on other grounds by Willis v. State , 304 Ga. 686, 706 n.3, 820 S.E.2d 640 (2018).²

Hogan makes two specific arguments on appeal: (a) that the trial court erroneously combined the second and third steps of the McCollum analysis with respect to Juror 11, and (b) that the trial court erroneously found that the State had proved discriminatory intent as to the three reseated jurors. We conclude that the trial court did not err in either of these ways.

(a) The trial court did not improperly combine the second and third steps of the McCollum analysis when considering Hogan's peremptory challenge to Juror 11. During voir dire, when the State raised its McCollum objection, the parties agreed that, before any peremptory strikes were exercised, white prospective jurors made up 50% of the initial jury venire and approximately 47% of the eventual jury pool from which the strikes were made, but that the defendants—who had combined their peremptory strikes—used all nine of their peremptory strikes for jury members and their two peremptory strikes for alternate jurors on white prospective jurors. Given that the State only needed to produce evidence sufficient to allow the trial court to infer "that discrimination ha[d] occurred, the trial court did not err by concluding that a prima facie case of purposeful discrimination was established where [the defendants] used 100 percent of [their] peremptory strikes against white venirepersons." Rose v. State , 287 Ga. 238, 239-240, 695 S.E.2d 261 (2010) (citation and punctuation omitted). With the first step of the McCollum inquiry satisfied, the trial court then reached the second step, requiring the defendants to articulate the reasons for each of their peremptory strikes, beginning with Juror 11.³ Hogan's counsel explained that Juror 11 was "the foreperson on several criminal trials"; that she "lives in Alpharetta, ... far outside the perimeter, a predominantly overwhelming white community, historically more of a white-flight community because they don't want to live in the city"; that there was "a concern about her hardship"; and that "her husband had been a CEO of several companies that socioeconomically [were] very elite." Hinton's counsel added that Juror 11's service on juries in the past was discussed; that her "living in Alpharetta brings up flags for us, whether or not she can actually relate to the goings on of the inner city"; and that her mother was 91 years old and had a broken ankle.

Before the prosecutor could respond to the defendants’ proffered reasons, the trial court interjected: "You don't need to. I'll tell you that a number of the proffered explanations are proxies for race, Alpharetta being where white people live, upper socioeconomic strata, being able to relate to the urban setting." The trial court added that it also "heard two race-neutral reasons given for striking" Juror 11: her prior service as a foreperson, and her elderly mother—"not so much because she wouldn't get cared for but because [Juror 11] would be imposing on so many others." The prosecutor then responded that, with regard to Juror 11 being a foreperson, defense counsel did not "know what the outcome of those trials were" and that "it's just a pretext ... to get around the other reasons that they named, which were generally that she was historically white flight, Alpharetta is a historically white neighborhood, when they did not ask her about those things," as well as "being social elitists, whatever the terminology was she used." The court stated that these reasons were not sufficient justifications because they struck the court as "either .... not so race neutral or facially race based." And the court characterized defense counsel's concerns about Juror 11 previously serving as a foreperson and having a sick mother as "race neutral unless you've got a juror who's similarly situated." The prosecutor then pointed out that another juror had sat on several juries and had served as the...