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HERRIN v. STATE5/9/1996
After a jury trial, Herrin was convicted of cruelty to children by maliciously causing excessive physical pain through failing to seek proper medical attention. OCGA § 16-5-70 (a). He was acquitted on charges of malice murder, OCGA § 16-5-1 (a), and the lesser included offense of battery, OCGA § 16-5-23.1 (a); felony murder by committing the felony of cruelty to children by maliciously causing excessive physical pain by striking a child, OCGA §§ 16-5-1 (c), 16-5-70 (b); felony murder by committing the felony of cruelty to children by maliciously causing excessive physical pain through failing to seek proper
medical attention, OCGA §§ 16-5-1 (c), 16-5-70 (a); aggravated battery, OCGA § 16-5-24 (a); and the lesser included offense of battery, OCGA § 16-5-23.1 (a). His only assertion of error is that the court allowed the State to exercise its jury strikes in a discriminatory manner to exclude males.
The charges against Herrin arose from the death of his girlfriend's three-year-old daughter. Herrin had been involved with the mother for approximately six weeks before the death of the child, who had suffered physical abuse from her mother over some months. She and her mother stayed at Herrin's home for at least four days before her death. Medical testimony showed that she suffered trauma to various parts of her body during her last few days and hours. She died of blunt force trauma to the head that was consistent with a blow or blows and not consistent with a normal fall or falls. The fatal trauma probably occurred in her final 48 hours, and symptoms of sleepiness, nausea, and unconsciousness would have exhibited themselves within eight hours after injury.
On the day she died, the child was alone with her mother from about 8:00 to 11:00 a.m. and alone with Herrin from about 1:00 to 6:00 p.m. She was dead when she arrived at the hospital at 7:00 p.m., but earlier medical attention might have saved her life. Her mother pled guilty to felony murder and aggravated battery.
Herrin, a male, contends the court improperly allowed the State to exercise all of its peremptory strikes against males. In J. E. B. v. Alabama, 511 U.S. ___ (114 SC 1419, 1429-1430, 128 L.Ed.2d 89) (1994), the United States Supreme Court advanced its holding in Batson v. Kentucky, 476 U.S. 79 (106 SC 1712, 90 L.Ed.2d 69) (1986), to prevent litigants from exercising peremptory jury strikes based upon gender. The Equal Protection Clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender as well as race. See Tedder v. State, 265 Ga. 900, 901 (2) (463 S.E.2d 697) (1995); Jackson v. State, 220 Ga. App. 98 (469 S.E.2d 264) (1996).
Claims that jury strikes were based on gender are reviewed under the same standards as apply to race. See Jackson, supra. "Batson directs a three-step process for evaluating a claim of [gender] discrimination in the State's use of peremptory jury strikes: (1) the defendant must make a prima facie showing that the prosecution has exercised its peremptory challenges on the basis of [gender]; (2) the burden then shifts to the prosecutor to articulate a [gender]-neutral explanation for striking the jurors in question; and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination." Kelly v. State, 209 Ga. App. 789, 790 (1) (434 S.E.2d 743) (1993). The explanation need not justify a challenge for cause, but it must be neutral, related to the case to be tried, and constitute a clear and reasonably specific legitimate reason
or reasons. Gamble v. State, 257 Ga. 325, 327 (5) (357 S.E.2d 792) (1987).
After the jury was selected, counsel addressed the cou
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