Washington v. State
Washington v. State
Opinion of the Court
Kenneth Washington and Kendrick Hurst were tried jointly and both were convicted of robbery,
The events at issue occurred on the night of July 27, 2007. The robbery victim, Michael Chitwood, testified that he saw a gold SUV with two occupants pull into the parking lot of a store. He had seen the passenger there before. He approached the SUV and began to talk to the passenger about purchasing some marijuana; he then got into the back seat of the SUV and took approximately $460 from his wallet. At that point, the driver of the SUV pointed a gun at
The driver then instructed the passenger to lock the doors and close the windows of the SUV Chitwood yelled for help and tried to prevent the window from closing. The passenger put his arm around Chitwood’s neck and held him in a choke hold, and the driver drove out of the parking lot. The passenger and Chitwood struggled, and Chitwood pushed his feet against one of the SUV’s doors. The passenger then obtained the gun, placed it against Chitwood’s head, asked him whether he wanted to die, and demanded the money.
Chitwood lost his cell phone during the struggle. He also briefly lost consciousness, at which point he dropped the money that he had been holding in his hand. When he regained consciousness, the men in the SUV ordered him out of the vehicle, and he complied. As the SUV was being driven away, Chitwood memorized its license tag number, which he provided to the police shortly thereafter. He later was shown a photographic array, from which he identified Hurst as the passenger in the SUV At trial, he again identified Hurst as the passenger.
A police investigator testified that police found, parked on the side of a nearby road, an unoccupied vehicle that matched the SUV’s description (including the license tag number). This led the investigator to interview Washington, who admitted the SUV belonged to him and consented to its search. Therein, the investigator found Chitwood’s cell phone, and another officer found on the back seat a small baggie of a substance later determined to be marijuana. The investigator testified that there were fingerprints and palm prints on the window of one of the rear doors and a footprint on that door.
The investigator testified that, in his interview, Washington stated that he had driven to the store with a passenger to sell drugs, that Chitwood had gotten into the SUV and that a fight had erupted between Chitwood and the passenger over the marijuana sale. Washington further stated that he got scared and drove to a convenience store, that the fight concluded, and that he and the passenger then left Chitwood at the convenience store. He denied that a gun was involved. Washington’s girlfriend testified to telling the police investigator that, on the evening of July 27, she had seen Washington leave with someone named Kendrick.
Case No. A11A0082
1. Washington argues that the trial court erred in denying his Batson challenge to several of the state’s peremptory jury strikes.
The evaluation of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must*777 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 discriminatory intent.7
The trial court’s findings are entitled to great deference, and should not be disturbed unless clearly erroneous.
The court found that Washington had made a prima facie showing of racial discrimination because the state had used some of its peremptory strikes to eliminate seven out of ten African-American prospective jurors. The state offered explanations for the strikes. The prosecutor explained that she struck the first prospective juror because he was close in age to the defendants and did not have a stable work history. She struck the second prospective juror because she had a criminal history, had been involved in a dispute involving allegations of fraud, and knew the public defender. She struck the third prospective juror because he had a criminal history, knew the state’s investigator, and was related to someone who, in the prosecutor’s opinion, was not an “upstanding citizen.” She struck the fourth prospective juror because she had a criminal history and had fewer ties to the community due to working outside the county. She struck the fifth prospective juror because he had a criminal history, his wife was a social worker, he had previously been stricken from jury panels, and he was distantly related to one of the defendants and had remarked that he “didn’t have to say anything” about this relationship. She struck the sixth prospective juror because she had a criminal history, had the same address as another person with a criminal history, and appeared disinterested during jury selection. She struck the seventh prospective juror because he had a criminal conviction, had the same address as a “druggie,” and his employment status was unclear.
“Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race[-]neutral.”
* Washington argues that the state had a discriminatory motive because it did not strike two similarly-situated white prospective jurors — one who was unemployed and the other who had a prior conviction. But where, as here, the state provides multiple reasons for striking a prospective juror, “it cannot be presumed that a reason applied to one juror, of one race, but not applied to another juror, of another race, is racially motivated.”
In determining whether Washington demonstrated a discriminatory intent in making the strikes, it was for the trial court to “ultimately decide the credibility of [the state’s] explanation.”
2. While examining Chitwood, the state questioned him about a statement he had written shortly before trial, and the court allowed him to read the statement to the jury. Washington contends that this constituted error. Although Washington’s counsel initially objected on hearsay grounds, Chitwood’s testimony about a statement he made himself did not constitute hearsay.
3. Washington argues that the court should have merged his aggravated assault conviction into his robbery conviction. Whether offenses merge is a legal question, which we review de novo.
Under OCGA § 16-1-7 (a) (1), “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if. . . [o]ne crime is included in the
The offense of robbery required proof that property was taken from another, a fact not required to establish aggravated assault.
when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y use of force; . . . [b]y intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or another; or . . . [b]y sudden snatching.23
The assault forming the basis of the aggravated assault with intent to rob in this case — pointing a pistol — was “contained within” the element of robbery requiring Washington to have used force, intimidation, threat or coercion, or placed the employee in fear of immediate serious bodily injury.
4. Washington contends that the court erred in instructing the jury that it could find him guilty of committing aggravated assault in a manner not alleged in the indictment. In light of our holding in Division 3, supra, this claim of error is moot.
Case No. A11A0083
5. Hurst contends that the court erred in denying his Batson motion asserting the same arguments as Washington. We find no error in the trial court’s ruling.
6. Hurst argues that the evidence was insufficient to establish his identity as the passenger in Washington’s vehicle. When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
7. For the reasons set forth in Division 3, supra, Hurst’s conviction for aggravated assault must be vacated because it merged into his conviction for robbery, the sentence imposed thereon must be vacated, and the case must be remanded to the trial court for resentencing. Pursuant to the Supreme Court of Georgia’s decision in Mikell v. State,
Judgments affirmed in part and vacated in part, and cases remanded.
OCGA § 16-8-40.
OCGA § 16-5-40.
OCGA § 16-5-21.
OCGA § 16-13-30 (j).
476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).
Id.
Flanders v. State, 279 Ga. 35, 37 (2) (609 SE2d 346) (2005) (citation omitted).
Jackson v. State, 265 Ga. 897, 900 (2) (463 SE2d 699) (1995).
Id. at 898 (2) (citation and punctuation omitted).
See, e.g., Guzman v. State, 287 Ga. 759, 762 (2) (700 SE2d 340) (2010) (regarding prior conviction or involvement in criminal activity); Roberts v. State, 282 Ga. 548, 550 (5) (651 SE2d 689) (2007) (regarding unemployment); Trigger v. State, 275 Ga. 512, 514 (3) (570 SE2d 323)
See Turner v. State, 267 Ga. 149, 152-153 (2) (476 SE2d 252) (1996); Bell v. State, 306 Ga. App. 853, 856 (703 SE2d 680) (2010); Hood v. State, 245 Ga. App. 391, 393 (4) (537 SE2d 788) (2000); Byron, supra at 798 (5). The cases cited by Washington in support of his contrary position are not binding precedent. See Ridley v. State, 235 Ga. App. 591 (510 SE2d 113) (1998) (physical precedent only); Parker v. State, 219 Ga. App. 361 (464 SE2d 910) (1995) (physical precedent only). See also Court of Appeals Rule 33 (a).
Lingo v. State, 263 Ga. 664, 668-669 (1) (c) (437 SE2d 463) (1993) (emphasis omitted); see Roberts, supra.
See LeMon v. State, 290 Ga. App. 527, 530 (1) (b) (660 SE2d 11) (2008).
Rose v. State, 287 Ga. 238, 241 (2) (695 SE2d 261) (2010) (citation, punctuation and emphasis omitted).
See Jackson, supra at 900 (2).
See Bowers v. State, 241 Ga. App. 122, 124 (3) (526 SE2d 163) (1999) (where witness was the declarant, testifying to her own statements, the statements were not dependent upon the competency and veracity of other persons and thus were not hearsay).
Zipperer v. State, 299 Ga. App. 792, 793 (1) (683 SE2d 865) (2009) (citation and punctuation omitted).
Louisyr v. State, 307 Ga. App. 724, 730 (2) (706 SE2d 114) (2011).
Drinkard v. Walker, 281 Ga. 211, 217 (636 SE2d 530) (2006).
Id. at 215 (punctuation and footnote omitted).
See Herrera v. State, 306 Ga. App. 432, 435 (3) (702 SE2d 731) (2010); see also OCGA §§ 16-5-21 (a), 16-8-40 (a).
OCGA § 16-5-20 (a).
OCGA § 16-8-40 (a).
See Herrera, supra.
Id. at 435-436 (3).
See Division 1, supra.
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).
See Craig v. State, 276 Ga. App. 329-330 (1) (623 SE2d 518) (2005).
See Jackson v. Virginia, supra.
286 Ga. 722 (690 SE2d 858) (2010).
Id. at 725 (3) (citations omitted); see Muckle v. State, 307 Ga. App. 634, 639 (2), n. 3 (705 SE2d 721) (2011). See also Curtis v. State, 275 Ga. 576, 577 (1) (571 SE2d 376) (2002)
308 Ga. App. 303, 305-306 (2) (707 SE2d 538) (2011).
263 Ga. App. 98, 99 (1) (587 SE2d 245) (2003).
Reference
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