☢ test - Í

Nelson v. State, 271 Ga.App. 870, 611 S.E.2d 147 (March 3, 2005). Trial court did not err in finding discriminatory intent and seating juror stricken by defense: “‘although a trial judge must accept a facially race-neutral explanation for purposes of determining whether the proponent has satisfied his burden of production at stage two, this does not mean that the judge is bound to believe such explanation at stage three.’ (Emphasis in original) McKenzie v. State, 227 Ga.App. 778, 778- 779(1) (490 S.E.2d 522) (1997). In its order denying Nelson’s motion for new trial, the trial court clarified that it found the explanation pretextual ‘based upon defense counsel’s demeanor while providing the explanation for the strike, his misstating what the juror’s response actually was during voir dire, his failure to excuse similarly situated jurors and his exercise of all but one of his strikes against Caucasians.’” “[T]he trial court's ruling arises from its consideration of the totality of the circumstances: ‘[T]he trial court in most cases must infer discriminatory intent from circumstantial evidence. The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination, and no additional proof of discrimination is required.’ (Punctuation and emphasis omitted.) McKenzie v. State, 227 Ga.App. at 779(1). And this Court must be careful not to substitute its findings for that of the trial court. A judge’s conclusion that a prospective juror has been disqualified for discriminatory reasons is based upon findings of demeanor and credibility, which lie peculiarly within a trial court’s province. Gardner v. State, 225 Ga.App. 427, 434 (483 S.E.2d 912) (1997).” Barrow v. State, 269 Ga.App. 635, 605 S.E.2d 67 (September 16, 2004). “[A] Batson challenge made after the jury has been impaneled and sworn is untimely.” Robinson v. State, 278 Ga. 134, 598 S.E.2d 466 (June 28, 2004). Trial court erred in finding OCGA § 15-12-165, providing greater jury strikes to defense than state, unconstitutional. Trial court’s reasoning: State accused male defendant of murder of one female and aggravated assault against a second female; State would strike male jurors, and defense would strike females; thus, potential female jurors were twice as likely to be stricken, violating equal protection. Supreme Court rejects this reasoning: “While a defendant may utilize a larger number of peremptory challenges, it is never allowable for a defendant to use a peremptory challenge to dismiss a juror based solely on sex or race; therefore, the sheer fact that the State has fewer challenges than the defendant is in no way violative of the equal protection of the challenged jurors. Accordingly, because the law currently provides a remedy for jurors who are struck for illegal reasons by the defense, the order of the trial court finding OCGA § 15-12-165 unconstitutional is reversed.” Stewart v. State, 277 Ga. 768, 596 S.E.2d 143 (April 27, 2004). State was not required to articulate its reasons for striking two of seven prospective African-American jurors where defendant could “point to nothing other than the raw number of strikes used, and could not show a discriminatory pattern or anything occurring during voir dire that might give rise to an inference of discrimination.” Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed.2d 931 (February 25, 2003). “‘In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge,’” quoting Hernandez v. New York , 500 U.S. 352, 111 S. Ct. 1859, 114 L.Ed.2d 395 (1991). Trial court’s findings on counsel’s motivation receive “significant deference.” Gaines v. State, 258 Ga.App. 902, 575 S.E.2d 704 (December 4, 2002). “Where the trial court fails to utilize a silent strike procedure, it may not reseat an improperly excused juror unless the right to object to such reseating has been waived. Under such a circumstance a new juror, similarly situated to the improperly struck juror, must be selected.” Based on Holmes v. State, 273 Ga. 644, 543 S.E.2d 688 (2001). White v. State, 257 Ga.App. 723, 572 S.E.2d 70 (October 4, 2002). “The opponent of the strikes may carry his burden of persuasion by showing that similarly situated jurors of another race were not struck or that the proponent’s race- neutral reason for a strike is so implausible or fantastic that it renders the explanation pretextual.” Thus, trial court had discretion to re-seat jurors of one race, struck by defendant because they or family members had been crime victims, where defendant did not strike similarly situated jurors of another race. Palmer v. State, 253 Ga.App. 16, 557 S.E.2d 479 (December 13, 2001). Conviction for theft by shoplifting affirmed. Defendant claimed she was denied the opportunity to make a Batson challenge to the State’s striking of jurors 7 and 38, said strikes being made with explanations Defendant concedes were facially race-neutral, but which she claims were