Thomas v. State

FINAL COPY


                S20A0721.       THOMAS v. THE STATE.


      ELLINGTON, Justice.

      A DeKalb County jury found Joseph Thomas guilty of murder

and other crimes in connection with the shooting death of Gregory

Savelio.1 In his sole claim of error, Thomas contends that the trial



      1 Thomas was indicted by a DeKalb County grand jury on February 1,

2011, for malice murder (Count 1), felony murder (Counts 2-4), aggravated
assault (Counts 5-6), and possession of a firearm by a convicted felon (Count 7)
in connection with the shooting death of Savelio. After a trial held on
September 16 to 20, 2013, the jury found Thomas guilty on all counts. On
September 20, 2013, the trial court sentenced Thomas to life imprisonment
without parole for malice murder (Count 1) and to five years’ consecutive
imprisonment for possession of a firearm by a convicted felon (Count 7). The
court purported to merge the felony murder counts (2-4) (which were
predicated on aggravated assault and possession of a firearm by a convicted
felon) into the malice murder conviction. The court also merged the aggravated
assault counts (5-6) with the malice murder conviction. Although the
aggravated assault counts merge as a matter of fact with the malice murder
conviction, the felony murder counts stand vacated by operation of law. See
Malcolm v. State, 

 (4)-(5) (

) (1993). Thomas
filed a motion for a new trial through new counsel on October 16, 2013, which
he amended twice. A hearing on the motion was held on September 14, 2018,
and the trial court denied it on October 23, 2018. After receiving an extension
of time to file his notice of appeal, Thomas filed it on December 4, 2018. The
appeal was docketed to the April 2020 term and submitted for decision on the
briefs.
court erred in denying his Batson2 challenge to the State’s use of its

peremptory strikes to remove African-Americans from the jury pool.

Specifically, Thomas contends that the trial court failed to properly

scrutinize whether the prosecutor’s facially race-neutral reasons for

striking Jurors 18, 31, and 42 were pretextual. He argues that the

trial court’s failure to apply Batson’s three-step analysis resulted in

the court improperly shifting the burden to the defense to prove the

prosecutor’s discriminatory intent. As explained below, this claim of

error is without merit; therefore, we affirm.

     1. Viewed in the light most favorable to the jury’s verdicts, the

evidence presented at trial shows the following. Around 5:30 p.m. on

August 22, 2009, Thomas shot Savelio to death at a Chevron gas

station on Candler Road in DeKalb County. Three witness testified

that they heard a gunshot and saw a young man holding a black

handgun. He was wearing a royal blue T-shirt with a red and black

design on it. Two of the witnesses said that the shooter walked by

them and, in an expletive-laden rant, announced that he had killed


     2   Batson v. Kentucky, 

 (

, 90 LE2d 69) (1986).
the victim. All three witnesses saw the shooter run toward the CVS

pharmacy next to the gas station. One witness heard a car

“screeching” away moments later.

     Video surveillance from the side of the CVS building showed a

man matching Thomas’ general description run from behind the

CVS and get into the front passenger seat of a blue Buick Skylark

bearing a temporary tag with a September 22, 2009 expiration date.

The man, however, was wearing an undershirt when he got into the

car instead of the distinctive blue shirt seen by the witnesses to the

shooting. Police found the blue shirt on the ground behind the CVS.

The shirt was a Columbia High School senior-class T-shirt bearing

the names of that year’s seniors, including the name of the shirt’s

owner, Ashley Brooks.

     Brooks testified that, on August 22, 2009, her former boyfriend,

Thomas, was staying with her. She let him wear her class shirt. She

testified that she spent that day with Thomas, hanging out at her

house and running errands. Thomas let her drive his recently

purchased blue Buick Skylark. One of the things they did that day
was to get a temporary tag for the car. Thereafter, they went to the

Chevron station to get gas. While there, Thomas went inside the

store. When he came back outside, he told Brooks to drive next door

to the CVS parking lot without him. Moments later, Brooks heard a

gunshot. She looked behind her and saw Thomas approaching the

car. He was no longer wearing her class shirt. When he got into the

car, he put a black handgun on the floorboard and told her to drive

off. Thomas told Brooks that he had asked a man for money, and

when the man laughed at him, he shot him. Thomas later called

Brooks from Augusta and told her that the police had spoken with

him and that she should give him an alibi for the day of the shooting.

     The State also presented evidence that Thomas had committed

other, similar crimes in the days before and after the shooting. A few

days before Thomas shot and killed Savelio, he robbed Daryl Haynes

as Haynes pumped gas at a Citgo gas station in DeKalb County.

Haynes testified that Thomas — whom he positively identified from

a photographic lineup and at trial — got out of a green SUV driven

by a woman, approached him, drew a black handgun, and took his
money. Thomas got back in the car with the woman, later identified

as Regina Truitt, and she drove away. Truitt testified at trial and

corroborated Haynes’ testimony. Truitt testified that, on the day

Thomas robbed Haynes, he was in the process of buying a Buick

from a family member.

     The State also presented evidence that Thomas committed

three more armed robberies at gas stations after he went to Augusta,

on August 24, September 7, and September 10, 2009. Thomas was

arrested after the September 10, 2009 robbery when the police, who

were in the process of executing an arrest warrant for him, saw

Thomas driving the Buick Skylark. Thomas abandoned the car and

fled from the police on foot, but was quickly apprehended. The police

recovered a 9mm black and silver Smith & Wesson pistol that they

had seen Thomas discard as he ran from them.

     The medical examiner testified that Savelio died as a result of

a close-contact, through-and-through gunshot wound to the chest.

The State did not perform forensic tests on Thomas’ gun because the

police found no bullet or shell casings for comparison at the gas
station where Savelio was shot. The State introduced into evidence

numerous still images and video recordings from the various crime

scenes, several of which showed Thomas or his car.

     Thomas 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 Thomas

guilty beyond a reasonable doubt of the crimes for which he was

convicted.3 See Jackson v. Virginia, 

 (III) (B) (

, 61 LE2d 560) (1979).

     2. Thomas contends that his convictions should be reversed

because the trial court failed to sufficiently evaluate the

prosecution’s reasons for its peremptory strikes to determine if those


     3 We remind litigants that the Court will end its practice of considering

sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, ___ Ga.
___ (___ SE2d ___) (2020). The Court began assigning cases to the December
Term on August 3, 2020.
strikes were not pretexts for racial discrimination. Essentially,

Thomas argues that the trial court did not conduct a full Batson

analysis and that, if it had, it would have seen the State’s

discriminatory intent in striking African-American potential jurors.

For the reasons that follow, this claim of error is without merit.

     A Batson challenge involves three steps:

     (1) the opponent of a peremptory challenge must 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 the
     proponent’s discriminatory intent.

(Citation and punctuation omitted.) Coleman v. State, 

 (4) (

) (2017). “At step two, the proponent of the

strike need only articulate a facially race-neutral reason for the

strike. Step two ‘does not demand an explanation that is persuasive,

or even plausible.’” Toomer v. State, 

 (2) (b) (

) (2012) (quoting Purkett v. Elem, 

 (

, 131 LE2d 834) (1995)). And, at the third step of the Batson

analysis, the trial court “makes credibility determinations,
evaluates the persuasiveness of the strike opponent’s prima facie

showing and the explanations given by the strike proponent, and

examines all other circumstances that bear upon the issue of racial

animosity.” (Citation and punctuation omitted.) Coleman, 

 (4). That a prosecutor’s explanation for a peremptory strike

is not supported by the record or would apply equally to a similarly

situated non-African-American juror who is permitted to serve may

support a finding of discriminatory intent at Batson’s third step. See

Miller-El v. Dretke, 

 (III) (A) (

,

162 LE2d 196) (2005). Finally, “[a] trial court’s finding as to whether

the opponent of a strike has proven discriminatory intent is entitled

to great deference and will not be disturbed unless clearly

erroneous.” (Citation and punctuation omitted.) Woodall v. State,

 (3) (

) (2014); see also Snyder v.

Louisiana, 

 (II) (

, 170 LE2d 175)

(2008) (“The trial court has a pivotal role in evaluating Batson

claims. Step three of the Batson inquiry involves an evaluation of

the prosecutor’s credibility, and the best evidence of discriminatory
intent often will be the demeanor of the attorney who exercises the

challenge[.]” (citations and punctuation omitted)).

       The record shows that the prosecutor used seven of nine

peremptory strikes to remove African-American jurors from the

venire, one of whom (Juror 42) would have been an alternate.

Ultimately, two African-American jurors were seated on the jury

panel, one of whom was an alternate. After Thomas made his Batson

challenge, the State conceded and the trial court agreed that

Thomas had made out a prima facie showing of racial discrimination

in the use of the State’s peremptory strikes.4 Thereafter, the trial

court asked the prosecutor to state the reasons for its peremptory

strikes. When the prosecutor finished,5 the trial court stated:


      4 Because the prosecutor offered explanations for the State’s strikes at

step two of the Batson inquiry and the trial court ruled on the ultimate
question of intentional discrimination at step three, we need not decide
whether the court correctly decided at step one the prima facie showing of
racial discrimination. See Johnson v. State, 

 (3) (b) (

) (2018).
       5 The record shows that the trial court asked defense counsel: “So, for the

record, you only wanted to raise an argument . . . on Juror number[s] 18, 31
and 42?” Counsel responded: “That’s correct, your honor.” With respect to these
jurors, the State gave the following explanations for exercising its peremptory
strikes:
      The burden is now going to shift to the defense concerning
      whether or not those were, in fact, race-neutral reasons. I
      will tell you that as part of step two of the inquiry, the
      court has to accept the explanation unless it is inherently
      discriminatory. And based on what I’ve heard thus far as
      to the reasons for[,] not just the strikes concerning the
      racial makeup and the gender makeup of the panel, but
      the reasons for the strikes in general, the court will state
      they do not appear to be inherently discriminatory. So
      now the burden shifts to the defense to respond.

Thomas then broadly asserted that the State’s race-neutral reasons

given with respect to Jurors 18, 31, and 42 were implausible. He

complained that the prosecutor’s explanation as to Jurors 18 and 42

were difficult to believe and that her explanation with respect to


       Juror 18 volunteered that she has “two black sons.” The prosecutor
recalled that the juror looked over at the defendant “and her demeanor seemed
to be one of sympathy. She seemed to have eyes that watered up a bit.” When
the juror was asked whether she, in fact, had sympathy for the defendant, she
said “Yes.” The prosecutor inferred from this exchange that the juror had
sympathy for the defendant because he had reminded her of her sons. Based
on this expression of sympathy, the prosecutor felt that Juror 18 was “not a
suitable juror for the State.”
       Juror 31 was a social worker and, “based on the nature of her work” and
the juror’s comments about rehabilitation programs, the State was concerned
that she would be predisposed to “not holding young persons accountable” for
their crimes. (Thomas was 23 years old when he committed his crimes.)
       Juror 42 had a grandson who had been shot and paralyzed. The juror
made statements about the grandson’s injury from which the State inferred
that the juror was “not so much concerned with holding [the shooter]
accountable. Based on that representation, the State felt that this juror would
not be an appropriate juror for the State’s case.”
Juror 31 was “clearly speculation.” When asked for specific

responses to the State’s explanations in support of its strikes,

defense counsel argued that Juror 42 was a good juror for the State

because her grandson had been the victim of a crime. He also said,

however, that he had “no response” to the State’s rationales for

striking Jurors 31 and 42 and would “rest on his motion.” With

respect to Juror 18, he asserted that the record did not support the

prosecution’s belief that the juror’s demeanor indicated sympathy

for the defendant.

     After hearing from defense counsel, the trial court ruled that

Thomas had not articulated responses that adequately rebutted the

State’s race-neutral rationales for striking Jurors 18, 31, and 42;

therefore, the court denied Thomas’ Batson challenge. Moreover, the

record shows that Thomas made no argument that the State had

seated similarly situated white jurors or pointed to any other

circumstances from which the trial court could reasonably infer that

the prosecutor had a discriminatory intent in striking these jurors.

Finally, during the hearing on Thomas’ motion for a new trial, the
court reaffirmed its decision, noting that it was based in part on the

court’s “observation of jury selection and the prosecutor’s

explanations and credibility.”

     Based on the record before us, we discern no clear error in the

trial court’s ruling denying Thomas’ Batson challenge. After hearing

argument from both Thomas and the State and after explaining its

reasoning, the trial court denied the Batson challenge as to Jurors

18, 31, and 42. The record indicates that the court assessed all of the

circumstances before it and found no discriminatory intent in the

State’s use of its peremptory strikes, thereby fully engaging in

the Batson inquiry. See Coleman, 

 (4). Further,

although Thomas expressed doubt about the prosecutor’s rationales

for using peremptory strikes against the three jurors, he failed to

make any factual argument in support of those doubts or in support

of his claim that the prosecutor acted with discriminatory intent.

The burden of persuasion is on the opponent of a strike to prove

discriminatory intent, and Thomas failed to do that. See 

(4) n.7 (“(T)he ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent of the

strike.” (citation and punctuation omitted)). See also Demery v.

State, 

 (2) (

) (2010) (The opponent of

a strike “may carry its burden of persuasion by showing that

similarly-situated members of another race were seated on the jury.”

(citation and punctuation omitted)).

     Judgment affirmed. All the Justices concur.



                     DECIDED AUGUST 10, 2020.
     Murder. DeKalb Superior Court. Before Judge Jackson.
     Michael A. Eddings, for appellant.
     Sherry Boston, District Attorney, Deborah D. Wellborn,
Assistant District Attorney; 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.