SECOND DIVISION

MILLER, P. J.,

REESE and GOBEIL, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

June 12, 2019

In the Court of Appeals of Georgia

A19A0322. AIKG, LLC v. MARSHALL.

MILLER, Presiding Judge.

In this civil action, Tanisha Marshall sued AIKG, LLC, alleging negligence in

the operation of its indoor go-kart facility where Marshall sustained serious bodily

injuriesfroma crash while operating a go-kart. Following a jury verdict and judgment

in Marshall’s favor, AIKG, LLC appeals. In its sole enumeration of error,1 AIKG

argues that the trial court erred in granting Marshall’s Batson

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challenge to the use of

its peremptory strikes. For the reasons that follow, we affirm. 

1

In its reply brief to this Court, AIKG withdrew the second enumeration of

error regarding the trial court’s denial of its motion for directed verdict concerning

its assumption of risk affirmative defense. At oral argument, AIKG confirmed that it

had abandoned that enumeration. 

2

 Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LEd2d 69) (1986).
The record showsthat Marshallfiled a complaint against AIKGafter sustaining

injuries from a crash while operating a go-kart at AIKG’s facility, and the case

proceeded to trial. During voir dire, Marshall raised a Batson challenge regarding

AIKG’s use of its peremptory strikes. Marshall argued that of the twenty-five

members of the jury pool, fifteen were Caucasian and ten were African-American,

and of the ten African-American prospective jurors, only three of those jurors were

selected. The trial court noted that all of the strikes used by AIKG were against

African-Americans, and directed AIKG to respond to Marshall’s Batson challenge. 

AIKG began its response by noting that it had not used all of its peremptory

strikes and had one strike remaining. AIKG then provided explanations for each of

its strikes. As to the first strike, AIKG’s counsel explained,

So my first strike was Number 11. This was a retired gentlemen and in

my experience I typically do not like retirees, no matter what their

background is. I find that they, I don’t know if it’s from daytime

television or what, but in my experience retirees have not been

particularly good defense jurors.

 As to the second strike, AIKG’s counsel said,

Number 13, . . . we didn’t learn that much information from [Juror 13].

The only note that I have written down about [Juror 13] was that she

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commented during [Mr.] Hoffspiegel’s voir dire that when people drive

too fast, it can lead to great injuries or death.

Mr. Hoffspiegel, as I saw a preview of his case yesterday, during

opening statements, the case that we mistried is going to be spending a

great deal of time, I think, in this case discussing speed, which is why

I noted that, and which is why I struck Juror Number 13.

 As to the third strike, AIKG’s counsel explained,

Juror Number 14, . . . -- Oh, she’s also -- She didn’t have -- [Juror 13]

and [Juror 14] were the two ladies that were seated side by side and

neither one of them offered us much information to glean about them

despite Mr. Hoffspiegel’s fairly extensive voir dire and the only thing

that I wrote down with her is that she had a pretty visceral reaction to

one of the questions during Mr. Hoffspiegel’s examination, which was

that she was very, very, very adamant about seatbelt usage and seemed

to indicate that she thought that seatbelts would basically prevent any

sort of injury.

 Regarding the fourth strike, AIKG’s counsel stated,

Number 17 was a juror that I actually followed up on because he said

something during Mr. Hoffspiegel’s questioning that caused me a little

bit of concern and that was that, if you don’t follow the rules, people get

hurt, and again having accessto having heard Mr. Hoffspiegel’s opening

statement yesterday, and frankly his voir dire both days, I know that this

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is going to be a safety rule case and he’s going to allege there were

multiple violations of safety rules.

 As to the fifth strike, AIKG’s counsel elaborated,

Let’s see, the last juror that I struck, [Juror 23]. Again we didn’t learn a

lot about [Juror 23], but the one thing that I wrote down about [Juror 23]

was that, businesses should make sure that people cannot get hurt, and

that is a direct quote from her during the voir dire process. That’s why

I chose to strike [Juror 23] and that’s the end of my strikes for the jury.

As to the strike of a juror on the alternate panel, AIKG’s counsel

explained,

So with the alternate knowing that we basically had those three jurors to

choose from, I looked at that and compared the jurors against one

another and, frankly, the fact that I had the opportunity to have a

younger male, who I thought might frankly understand go karting a little

bit better than an older lady, that’s why I wanted to use my strike on her

to hopefully get the younger guy.

After AIKG’s counsel gave the reasons for the strikes, the trial court initially

ruled that AIKG improperly exercised all of its peremptory strikes with the exception

of its fourth strike against Juror 17. Specifically, as to the first strike, the trial court

stated, “[t]he retiree, I do not find that to be a race-neutral reason for striking someone

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because they are retired. So I will put that juror back in the pool.” The trial court

continued,

As it relates to Juror Number 13 and 14, . . . both being [African]-

American women, where defense attorney hasstated, did not offer much

information on either, but the first one the reason being that the juror

commented, that great injuries and death when you drive too fast [sic].

And the other juror the reason given was they made a comment as it

relates to Plaintiff’s question about seatbelts and them saving people. I

do not find either of those reasons to be race-neutral. Seatbelts, jurors,

appears to be pretexts for Jurors 12, 13 and for the retiree juror, that was

Juror Number 11.

 Regarding Jurors 23 and 30, the trial court stated,

Juror Number 23, defense asserted, not a lot about [Juror 23] either --

businesses should make sure that the place is safe for their people and

I find that is not a race-neutral reason, since not much information was

gathered and it appears to be that any comment or any statement that

these jurors made was given as a pretext for a reason to strike them since

not that much dialog was taken from them.

. . .

Juror Number 30, . . . reason indicated that -- Juror Number 30 indicated

that the reason the juror was taken because there were the alternate

choices, there were younger jurors and they may know more about race

cars and go karts. And I guess, if I looked at the other jurors, who may

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have been selected, I guess in looking at the ages of the jurors, this juror

was born in 1987. And the juror that was struck was born in 1960. And

so if I look at Juror Number 7, . . . who was a white female, she was

born in 1957. If I looked at another Juror Number 9, . . . he was born in

1959. So when looking at those two jurors, who have aged, they’re

varying ages on there, but I find that is not a race-neutral reason

considering that there are other jurors who are as old or older, so seat the

juror.

The trial court took a brief recess after its initial ruling on Marshall’s Batson

challenge.3 After reconvening, the trial court directed Marshall to respond to AIKG’s

arguments concerning its reasonsfor the strikes. After Marshall’s pretext arguments,

the trial court upheld its initial ruling, stating,

[B]ased upon the fact that race neutral reasons were not given; based

upon the fact that several of the jurors, namely . . . Jurors Number 11,

Juror Number 13, Juror Number 14 and Juror Number 30 and Juror

Number 33,

4 were asked few, if any, questions. And the questions, the

limiting or the lack of questioning or the lack of meaningful questioning,

is one of the reasons that I considered in striking the jurors -- I’m sorry

3 Prior to the recess, the trial court heard arguments on AIKG’s Batson

challenge to Marshall’s strikes, which the trial court denied.

4 Although the trial court referred to Juror 33, it appears that the trial court

misspoke and meant to reference Juror 23. 

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in reseating the jurors and indicating that the reasons given by the

defense were not race neutral reasons. Based upon the strikes that the

defense made, it was an overwhelming pattern of strikes against

African-Americans and reasons are previously given not a lot of

meaningful questioned [sic] asked by them.

If we look at the jury list that has been submitted and the jurors who

were chosen, the parties had six strikes each. The Plaintiff used four of

their strikes and the Defendant used five of their strikes. Based upon the

jurors, who were struck for cause, the parties, if they had used all of

their strikes, would have gone to Number 29 [s]ince the plaintiff only

used four, the defense used five, they stopped at Number 25. But in

looking at the jury sheet another factor that I considered, the defense had

another strike, which would have been Juror Number 27, and Juror

Number 27, being an African-American, was struck by the defense but

it was crossed through because they realized, the parties realized, they

did not need to go past 25 because they would have had 12 jurors. So if

I take all of that information, put it together and come up with an

explanation as to why the jurors should be seated, it was

overwhelmingly that the reasons given were not race neutral. Few, if

any, questions were asked and it was overwhelmingly a number of

African-Americans that were struck.

 The case proceeded to trial and the jury returned a verdict in Marshall’s favor. The

jury allocated 64 percent of the fault to AIKG, 24 percent of the fault to the driver

who crashed into Marshall, 12 percent of the fault to Marshall, and awarded $2

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million in damages. The trial court subsequently entered its judgment in Marshall’s

favor. This appeal followed. 

AIKG contends that the trial court conducted an improper Batson analysis by

finding pretext at step two of the Batson test and by failing to analyze whether

Marshall proved discriminatory intent as required under Batson’s third step. We are

unpersuaded.

In Batson, the United States Supreme Court barred the government from

striking prospective jurors from the jury panel on the basis of race. Ultra Telecom,

Inc. v. Merchant, 328 Ga. App. 230, 232 (761 SE2d 623) (2014). See also Batson,

supra, 476 U. S. at 84. In Edmonson v. Leesville Concrete Co., 500 U. S. 614 (111

SCt 2077, 114 LEd2d 660) (1991), the Supreme Court extended its holding in Batson

to civil cases. Ultra Telecom, supra, 328 Ga. App. at 232. Establishing a Batson

violation requiressatisfaction of a three-prong test: “(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

discriminatory intent.” (Citation omitted.) Id.

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[I]n reviewing the trial court’s disposition of Batson motion, we must

bear in mind that the trial court’s decision restslargely upon assessment

of the proponent’s state of mind and credibility; it therefore lies

peculiarly within a trial judge’s province. Thus, the trial court’sfindings

as to whether the opponent of the strike has met the burden of

persuasion are entitled to great deference and will be affirmed unless

clearly erroneous.

(Citations and punctuation omitted.) Ultra Telecom,supra, 328 Ga. App. at 232-233.

With these guiding principlesin mind, we turn to the facts surrounding AIKG’s claim

of error.

As AIKG concedes, a similar legal issue to the one raised here was also raised

in Dunn v. State, 304 Ga. 647 (821 SE2d 354) (2018). In Dunn, the trial court heard

the State’s argument of a prima facie case for its McCollum

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challenge, which

requires proof of the same elements for a Batson challenge. Id. at 649 (2). After the

trial court heard the defense’s race-neutral arguments, the trial court ruled that one

juror was improperly struck from the jury. Id. at 649-650 (2). After the trial court’s

initial ruling, the State provided additional arguments as to why the defense’s reason

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In Georgia v. McCollum, 505 U.S. 42 (111 SCt 2348, 120 LE2d 33) (1992),

the United States Supreme Court extended Batson to challenges made by the

government, and prohibited criminal defendants from exercising peremptory strikes

in a racially discriminatory manner.

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for the strike, although facially race-neutral, was pretext. Id. The trial court

subsequently upheld itsinitialruling and seated the improperly struck juror. Id. at 651

(2). Dunn argued on appeal, as AIKG argues here, that “the trial court failed to

consider step three of the [Batson] test, and improperly found in step two of the

analysis that his explanation was not race-neutral.” Id. 

In rejecting Dunn’s argument, our Supreme Court reasoned that “[w]hile the

trial court did not expressly indicate that it was moving to step three of the McCollum

analysis, we do not look merely at the nomenclature used during a colloquy, but at the

totality of the discussion, including the trial court’s inquiry.” Dunn, supra, 304 Ga.

at 651 (2). The Supreme Court noted that “[w]e don’t read statementsin isolation; we

read them in context.” (Citation and punctuation omitted.) Id. The Court noted that

while the trial court incorrectly ruled that Dunn failed to articulate a race-neutral

reason for his strike, the trial court subsequently heard argument from the State as to

why the defense’s reason for the strike was pretext. Id. at 650-651 (2). The Court

further recognized that after the State’s pretext argument, the trial court “concluded

that the explanation was pretextual and made with discriminatory intent.” Id. Thus,

the Court held that, in light of the totality of the discussions, the trial court conducted

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the proper McCollum inquiry, and the Court affirmed the trial court’s finding of

purposeful discrimination. Id. at 651-652 (2).

Here, as in Dunn, the trial court heard Marshall’s argument of a prima facie

case of purposeful discrimination in AIKG’s exercise of its peremptory strikes, as

well as AIKG’s race-neutral explanations for its strikes. Like Dunn, after AIKG

proffered its race-neutral explanations for its strikes, the trial court initially

incorrectly found pretext in AIKG’s exercise of its strikes. However, like the State in

Dunn, Marshallsupplied arguments prior to the trial court’s final ruling that AIKG’s

explanations for the strikes, although facially race-neutral, were pretext. 

Accordingly, under Dunn, AIKG’s contention that the trial court erred by

conducting an improper Batson inquiry must fail. While the trial court did not

expressly state that it was moving to the third step of the Batson analysis, we look at

“the totality of the discussion, including the trial court’s inquiry” asinstructed by our

Supreme Court. Dunn, supra, 304 Ga. at 651 (2). In reviewing the totality of the

discussion, we determine that the trial court heard argument from both Marshall and

AIKG prior to the trial court’s ultimate ruling regarding purposeful discrimination.

Thus, the trial court conducted a proper Batson inquiry. Id. at 651-652 (2). The fact

that the trial court used the term “race-neutral” in the discussion as to whether

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AIKG’s strikes were pretextual is not dispositive and does not alter our conclusion.

See id. at 651 (2) (“The use by the State and the trial court, as well as defense

counsel, of the term ‘race neutral’ in the discussion of whether Dunn’s stated reason

for the strike was pretextual is not dispositive.”); Coleman v. State, 301 Ga. 720, 723-

724 (4) (804 SE2d 24) (2017) (stating that the trial court’s use of the term “raceneutral” was not dispositive, and that the trial court “implicitly engaged in the third

step” of Batson by hearing from both sides prior to the final determination of

purposeful discrimination). Furthermore, AIKG’s argument that reversal is required

because the trial court failed to make “individualized findings” regarding Marshall’s

pretext arguments also fails. See Dunn, supra, 304 Ga. at 649-652 (2) (trial court

merely concluding that the State’s reasoning was pretextual, and that the juror would

be seated). Moreover, thisCourt has previously rejected the argument that a trial court

conducts an improper Batson inquiry by failing to make express findings regarding

a party’s pretext argument. See York v. State, 242 Ga. App. 281, 290 (4) (b) (528

SE2d 823) (2000) (“Appellants also contend that the trial court did not complete the

‘three step process,’ because the court failed to make a separate determination on the

record that the defense had failed to prove discriminatory intent. This determination,

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however, was implicit in the trial court’s denial of the Batson motion and does not

require a separate, specific finding on the record.”). 

When all three steps of the Batson inquiry are completed and the explanations

for the peremptory strikes are given, “the trial court must ultimately decide the

credibility of such explanation, and because the third step of the [Batson] procedure

mandates that the trial court act as the trier of fact, the trial court’s findings are to be

given great deference and are to be affirmed unless clearly erroneous.” (Citation

omitted.) Dunn, supra, 304 Ga. at 652 (2). “In determining whether a strike is

pretextual, the trial court, which can directly evaluate an attorney’s credibility and

whether discriminatory intent is present, should focus on the genuineness of the

explanation, rather than its reasonableness.” (Citation and punctuation omitted.) Id.

Additionally, although AIKG contends that the failure to ask few or any questions of

the stricken jurors is not relevant in determining discriminatory intent, other courts

have noted otherwise. Both the United States Supreme Court and the EleventhCircuit

Court of Appeals have noted that disparate questioning or the failure to question

stricken jurors are factors a trial court can consider in adjudicating a Batson claim.

See Miller-El v. Dretke, 545 U. S. 231, 266 (125 SCt 2317, 162 LE2d 196) (2005)

(stating that the State’s “strikes correlate[d] with no fact as well as they correlate[d]

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with race, and they occurred during a selection infected by shuffling and disparate

questioning that race explains better than any race-neutral reason advanced by the

State.”); Madison v. Commr. Ala. Dept. of Corrections, 761 F3d 1240, 1252 (11th

Cir. 2014) (noting that among the relevantfactorssupporting Madison’sBatson claim

was the prosecutor’s failure to question three of the stricken jurors).

Given that all of the stricken jurors were African-American, as well as the trial

court’s finding of AIKG’s admission that it did not “glean” information from several

of the stricken jurors, the disparate or lack of questioning of the stricken jurors, and

AIKG’s striking of an African-American juror on the alternate panel, the trial court

did not clearly err in finding purposeful discrimination in AIKG’s use of its

peremptory strikes.Accordingly, we affirmthe trial court’s ruling granting Marshall’s

Batson challenge. 

Judgment affirmed. Reese and Gobeil, JJ., concur.

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