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Horne v. State.4/29/1999
esent in this case.
3. Horne contends that the trial court erred by allowing both of the sequential test results from the Intoxilyzer 5000 breath test into evidence. OCGA § 40-6-392 (a) (1) (B) provides, in pertinent part:
"In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state's . . . case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes." (Emphasis supplied.) Thus, the statute, itself, clearly contemplates the admission of both sequential test results, and the trial court did not err.
Horne's secondary contention that the trial court erred by allowing the Intoxilyzer printout to go out with the jury as a continuing witness is also misplaced, as " he proscription on the jury's possession of written testimony does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case." (Punctuation omitted.) Hodson v. Mawson, 227 Ga. App. 490, 491 (2) (489 SE2d 855) (1997).
4. Horne contends that the trial court erred in overruling his objection to the State's peremptory strike of an African American juror pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).
Batson involves a three-step process: the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. The burden of production then shifts to the proponent of the strike to give a race-neutral reason for the strike. If a race-neutral reason is given, the trial court then decides whether the opponent of the strike has proven discriminatory intent. Russell v. Parkford Mgmt. Co., 235 Ga. App. 81, 83 (2) (508 SE2d 454) (1998).
In this case, the State used one of its peremptory strikes against the only African American member of the jury panel, and Horne raised a Batson objection. The State explained that it struck this juror because she had a prior negative experience with police officers and she worked as a social worker. The trial court found these reasons to be sufficiently race-neutral, after which Horne provided no argument or evidence showing otherwise.
In reviewing the trial court's evaluation, we must be mindful that the ultimate burden of persuasion regarding racial motivation in the exercise of peremptory strikes rests with, and never shifts from, the opponent of the strike. In each of these matters, the findings of the trial court are entitled to great deference, and should not be disturbed unless clearly erroneous. (Citation and punctuation omitted.) Russell, supra at 84.
Based on the record, the trial court appropriately overruled Horne's Batson objection. Horne's mere speculation that the State's use of its peremptory strike was racially motivated cannot alter this result. " e are not authorized to create an inference of discrimination where none is apparent, and where none has been found by the trial court, to whose findings we must give great deference." Lingo v. State, 263 Ga. 664, 669 (1) (c) (437 SE2d 463) (1993).
Judgment affirmed. Barnes, J., and Senior Appellate Judge Harold R. Banke concur.
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