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Bowden v. State5/29/2003
J. T. Bowden appeals from the denial of his motion for new trial following his conviction by a jury of one count of aggravated assault with intent to rob Matthews.
1. Viewed in favor of the jury's verdict, the evidence was that Matthews, Marsh and Kahlert had gone to dinner on November 19, 2000. For dessert, the women were going to a restaurant on Crescent Avenue in Atlanta. Matthews parked across the street from the restaurant in a bank parking lot and the three women got out of the car. Three men then surrounded the women and one put a gun in Marsh's back. Marsh ran, but another of the men, later identified as Bowden, put a gun to Matthews' head and demanded her purse. Matthews got a good look at him because her car headlights had not yet gone out and the parking lot was well lighted. The man was close enough to her that she could feel his breath on her and the gun against her head was shaking. Matthews focused on him for several seconds and gave a detailed description, including the fact that the man was a light skinned African-American with freckles and a missing tooth.
Bowden, who was light skinned and missing a tooth, was apprehended by a police officer a couple of blocks from the scene.
The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Bowden's two enumerations are that the trial court erred in finding he had failed to make a prima facie showing of racial and gender discrimination in the State's exercise of its peremptory strikes, pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), and that the court erred in retroactively ruling on the State's reasons for its strikes during the hearing on his motion for new trial.
In order to make out a prima facie case of purposeful discrimination, the challenging party must show that "`the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Cits.]" Whatley v. State, 266 Ga. 568, 570 (3) (468 SE2d 751) (1996). "Although `circumstantial evidence of invidious intent may include proof of disproportionate impact, . . .' numbers alone not establish a disproportionate exercise of strikes sufficient to raise a prima facie inference that the strikes were exercised with discriminatory intent[.]" Whitaker v. State, 269 Ga. 462, 464 (3) (499 SE2d 888) (1998), quoting Batson, supra, 476 U. S. at 93. See also Livingston v. State, 271 Ga. 714, 718 (2) (524 SE2d 222) (1999).
Reviewing the record and transcript here reveals that the only information available regarding the racial composition of the panel and of the selected jury was colloquy between defense counsel, the State, and the Court during Bowden's Batson motion and then during the hearing on his motion for new trial.
"`Colloquies between court and counsel and argument of counsel, though included in the record, are not competent evidence of the facts observed therein, and do not suffice to make a proper record of facts required to establish a prima facie case of discrimination. [Cits.]' Shaw [v. State, 201 Ga. App. 438] at 439, 440." Love v. State, 205 Ga. App. 27 (1) (421 SE2d 125) (1992). See also Coker v. State, 207 Ga. App. 482 (1) (428 SE2d 578) (1993).
Even if we were to accept the numbers put forth in the colloquy, however, Bowden has still failed to make out a prima facie case. Of the pool of 48 potential jurors, 15 were African-American, or 31.25 percent of the panel. Of the seated jury, there were five black females, four white males, and three white females, making the seated panel 41.6 percent African-American, a greater proportion than in the pool. See Livingston v. State, 271 Ga. 714, 718
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