State v. Carr

413 S.E.2d 192 (1992)

261 Ga. 845

The STATE v. CARR.

No. S91A1595.

Supreme Court of Georgia.

February 6, 1992.

Richard A. Malone, Dist. Atty., William Steven Askew, Asst. Dist. Atty., Swainsboro, for the State.

Michael J. Moses, Louisville, for Willie James Carr.

Bruce Maloy, Maloy & Jenkins, Mary Erickson, Malloy & Jenkins, Atlanta, for other interested parties.

PER CURIAM.

Willie J. Carr, a black man, was indicted for drug-related offenses. In striking the jury to try his case, Carr used fifteen peremptory strikes to remove fifteen white persons from the jury panel. The state used two peremptory strikes to remove two black persons from the panel. The jury selected to try Carr's case consisted of eleven black persons and one Hispanic person.

The state then moved under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to require the defendant to articulate race-neutral grounds for striking all white persons from the jury. The trial court denied this motion, and we granted the state's application for interlocutory appeal.

*193 Subsequently this court decided State v. McCollum, 261 Ga. 473, 405 S.E.2d 688 (1991), in which we declined to prohibit a criminal defendant from exercising peremptory challenges to jurors on the basis of race. Because McCollum controls the case before us, the judgment of the trial court is affirmed.

Judgment affirmed.

CLARKE, C.J., WELTNER, P.J., and BELL, J., concur.

FLETCHER, J., specially concurs.

HUNT and BENHAM, JJ., dissent.

FLETCHER, Justice, concurring specially.

In State v. McCollum, 261 Ga. 473, 405 S.E.2d 688, cert. granted, ___ U.S. ___, 112 S. Ct. 370, 116 L. Ed. 2d 322 (1991), a majority of this court refused to apply the U.S. Supreme Court's decision in Edmonson v. Leesville Concrete Co., ___ U.S. ___, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991) to defendants in criminal actions. Edmonson held that the process of jury selection in civil actions constitutes state action and, consequently, that the equal protection component of the Fifth Amendment's Due Process Clause prohibits both parties in a civil action from exercising their peremptory jury strikes in a racially discriminatory manner.

The United States Supreme Court has subsequently granted the State of Georgia's application for a writ of certiorari in McCollum. Because that writ was issued to decide the very question that is presented by the present action, I concur specially to the majority's decision in order to preserve the status quo pending the United States Supreme Court's decision in McCollum.[1]

BENHAM, Justice, dissenting.

For the reasons outlined in my dissent in State v. McCollum, 261 Ga. 473, 405 S.E.2d 688 (1991), I respectfully dissent.

[1] I am of the opinion that the direction which the United States Supreme Court will choose to take in McCollum will be that which is set forth in my dissenting opinion in McCollum.