                               FIFTH DIVISION
                                REESE, P. J.,
                            MARKLE and COLVIN, 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.
                    Please refer to the Supreme Court of Georgia Judicial
                    Emergency Order of March 14, 2020 for further
                    information at (https://www.gaappeals.us/rules).


                                                                       May 21, 2020




In the Court of Appeals of Georgia
 A20A0402. HUGHLEY v. THE STATE.

      COLVIN, Judge.

      After a jury trial, Deanthony Hughley was convicted of two counts of armed

robbery, two counts of aggravated assault, and one count of possession of a firearm

during the commission of a felony. He appeals from the denial of his motion for new

trial, arguing that the trial court erred by denying his Batson motion and by failing to

grant his motion for mistrial for improper injection of evidence into closing argument.

He also argues that his trial counsel rendered ineffective assistance of counsel by

failing to file a speedy trial demand. For the following reasons, we affirm.

      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of

innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165)
(2004). We neither weigh the evidence nor judge the credibility of witnesses, but

determine only whether, after viewing the evidence in the light most favorable to the

prosecution, “any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U.

S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

      So viewed, the record shows that on November 7, 2012, Keith Holley drove his

girlfriend Moya Thompson’s home and parked outside of her house. Holley and

Thompson chatted in the car for about 30 minutes. While chatting, they noticed

several men walk past them. Thompson recognized one of the men as Hughley and

commented that “I know him from high school.” Moments later, Hughley returned

and knocked on the drivers’ side window with a gun. Two men wore masks and stood

guard on either side of the car, holding guns “like how a solider would hold a gun.”

Hughley told Holley to open the car door, and he did as instructed. Hughley then

pointed the gun at Moya and Thompson and demanded their money and phones.

Thompson handed their money and phones to Hughley. When Hughley demanded

“give me everything,” Thompson handed him her purse. Hughley then instructed the

couple to “put your head down, put your head down, don’t look at me.” They

complied initially, but when Thompson raised her head, Hughley turned and fired

                                          2
several shots in her direction. One of the bullets hit Holley’s car, and another entered

Thompson’s house and went through the bathroom wall.

      Holley drove Thompson to a nearby gas station to call for help. Thompson

called her mother, who instructed her to go back to the house, lock all doors and wait

for her to come home. Once back inside the house, Thompson and Holley called 911.

When officers arrived, Thompson identified Hughley as the gunman and showed

officers his profile on Facebook. She identified another picture of Hughley as the

gunman to the interviewing detective.

      At trial, Hughley admitted that he was present at the scene of the crime and

fired shots in Thompson’s direction. However, he claimed that he was simply on his

way home when he noticed “three boys all on one side of a car,” and that he fired

shots at the true perpetrators after he startled them by asking for a lighter. Hughley

explained that he was carrying his handgun with him that day because there is “a lot

of stuff that goes on around that area when you out late – late at night. And plus, you

hear gunshots every other night, so that’s why I always keep my personal handgun

on me.”




                                           3
      Hughley was charged with and a jury found him guilty of two counts of armed

robbery, two counts of aggravated assault and one count of possession of a firearm

by a convicted felon. His motion for new trial was denied.

      1. Although Hughley has not challenged the sufficiency of the evidence against

him, we reviewed the record and conclude that the evidence outlined above was

sufficient to sustain his conviction. See OCGA § 16-8-41 (defining armed robbery);

16-5-21 (defining aggravated assault); 16-11-106 (defining possession of a firearm

during the commission of a felony).

      2. Hughley argues that the trial court erred in overruling his challenge under

Batson v. Kentucky, 476 U. S. 79 (106 S.Ct. 1712, 90 LE2d 69) (1986), asserting that

the State had improperly used two of its peremptory strikes against the only two

African-American males on the venire panel. We find no error.

      There were 47 prospective jurors on the venire panel, and 32 of them would be

qualified for potential selection. At the end of voir dire, Hughley raised a challenge

pursuant to Batson, asserting that Juror Number 6 and Juror Number 24, both

African-American men, had been improperly struck. The trial court then asked about

the racial and gender composition of the venire panel and the jury that had been

selected. The attorneys and the trial court seemed to agree that there were five

                                          4
qualified African-Americans on the panel and that the State struck two of them. The

State argued that there were three African-Americans in the jury pool that the State

had accepted, but that Hughley had struck. One African-American woman was

empaneled on the jury. Based on this information, the trial court ruled that Hughley

had not made a prima facie case under Batson.

      When one party objects that another has unconstitutionally
      discriminated on the basis of race in its use of peremptory strikes, the
      objecting party bears the burden of making out a prima facie case of
      purposeful discrimination. To make out a prima facie case, the objecting
      party must show that the totality of the relevant facts gives rise to an
      inference of discriminatory purpose. It is not enough for the objecting
      party to note that prospective jurors of a certain race were struck by the
      other party. In addition, the objecting party must show that there are
      good reasons to think that those prospective jurors were struck on
      account of their race. In considering all relevant circumstances, a pattern
      of strikes against black jurors included in the particular venire might
      give rise to an inference of discrimination.


(Citation and punctuation omitted.) Bannister v. State, 306 Ga. 289, 298 (4) (830

SE2d 79) (2019). In J. E. B. v. Alabama, 511 U. S. 127 (114 SCt 1419, 128 LE2d 89)

(1994), the United States Supreme Court extended its holding in Batson, supra, to

instances where peremptory strikes are exercised solely on the basis of gender, and


                                          5
the “three-part test utilized to review claims of race discrimination under Batson is

also applied to analyze gender discrimination claims.” (Citation omitted.) Shell v.

State, 264 Ga. App. 547, 547 (1) (591 SE2d 450) (2003). Accord Tedder v. State, 265

Ga. 900 (463 SE2d 697) (1995). We review a trial court’s factual findings on such a

motion “with great deference and [they] may be disregarded only if clearly

erroneous.” (Citations omitted.) Hightower v. State, 220 Ga. App. 165, 166 (1) (469

SE2d 295) (1996).

      Hughley argues that the trial court erred in this ruling because his Batson

challenge was not to the strikes of African-American jurors in general, but the

striking of all available African-American males from the jury pool. Hughley has

cited to no United States Supreme Court nor Georgia precedent ruling that the

protections of Batson extend to combined race-gender groups.1 However, in a similar

case, the Eleventh Circuit has declined to recognize a race-gender group as a

“cognizable racial group.” See U. S. v. Dennis, 804 F.2d 1208 (11th Cir. 1986).



      1
        Although the appellant in Bannister, supra, argued that the trial court erred
in denying his Batson challenge on the grounds that the State struck five of the eight
available African-American women on the venire panel, our Supreme Court did not
render a decision as to whether a gender-race class constituted a “certain cognizable
group of prospective jurors.” Bannister, 306 Ga. at 298-300 (4).

                                          6
      As an initial matter, the relevant cognizable racial group, for the
      purposes of our analysis, is the group of blacks generally and not just
      black males, as [Hughley] urge[s]. The test we apply to determine
      whether [the struck jurors] are members of a cognizable racial group
      under Batson, is the test applied in Castaneda v. Partida, 430 U. S. 482
      (97 S.Ct. 1272, 51 LE2d 498), cited in Batson[.] Such a group is “one
      that is a recognizable, distinct class, singled out for different treatment
      under the laws, as written or as applied.” Castaneda, [supra]. The group
      of blacks generally clearly qualifies under this definition; [Hughley has]
      failed to show, however, that black males constitute a distinct,
      recognizable subclass of individuals who have been singled out for
      different treatment under the laws not simply as blacks, but as black
      males. It would therefore be inappropriate for us to narrow the
      “cognizable racial group,” . . . to include only black males and exclude
      black females.


Id. at 1210 (VII).

      Here, the State used only two of its peremptory challenges during the selection

of the twelve jurors who decided the case to strike African-American men. Hughley

also used two of his peremptory challenges to strike African-Americans that had been

accepted by the State. It is “obvious that the [State] did not attempt to exclude all

blacks, or as many blacks as it could, from the jury.” Dennis, supra. Because Hughley




                                          7
failed to make out a prima facie case of purposeful discrimination under Batson,

supra, the trial court did not err in denying his Batson challenge.

      3. Hughley argues that the trial court erred by failing to grant a mistrial or to

rebuke the prosecution and give corrective instructions to the jury after he objected

to the State’s closing argument on the grounds that it injected prejudicial matters not

in evidence. We find no error.

      During its closing argument, the State told the jury

      Officer Hartman came and he testified. He said he . . . canvassed the
      area. And he said he talked to some of the neighbors. And the neighbors
      said they heard gunshots, but they didn’t come out or they didn’t
      investigate. Why? Because — it’s not unusual for people to live with the
      blast of gunshots surrounding them, with DeAnthony Hughley and his
      posse roaming the street, never leaving home without their masks and
      guns, like it’s an AmEx card. Think of not only the fear they’ve instilled
      on the victims of this incident but the neighbors. They just lock
      themselves in their home. . . .


Defense counsel then objected to this statement “as being improper character

evidence” and moved for a mistrial. The trial court overruled the objection without

comment. Hughley now argues that the trial court erred in denying its motion because

the State injected prejudicial matters not in evidence during closing argument.


                                          8
Specifically, he objects to the State’s references to Hughley’s “posse” that “roamed

the street,” that he never left the house without his mask and guns and that the

neighbors lived in fear.

      The only objection Hughley raised below, however, was not the same one he

now asserts on appeal in his enumeration of error and brief. At trial, Hughley objected

to the closing argument on the grounds that it introduced improper character

evidence. On appeal, Hughley now argues that the trial court erred by injecting

prejudicial matters not in evidence during closing argument. “Therefore, he has

waived all issues of admissibility to which he failed to pose a timely, specific

objection at trial, and we will not consider an argument raised for the first time on

appeal.” Hunter v. State, 273 Ga. App. 52, 54 (2) (614 SE2d 179) (2005).

      Even if this enumeration were properly before us, moreover, it is without merit.

“A prosecutor is granted wide latitude in the conduct of closing argument, the bounds

of which are in the trial court’s discretion. Within that wide latitude, a prosecutor may

comment upon and draw deductions from the evidence presented to the jury.”

(Citations and punctuation omitted.) Booth v. State, 301 Ga. 678, 688 (4) (804 SE2d

104) (2017). Further, “it is appropriate . . . for the prosecutor to urge the jury to

convict the defendant for the safety of the community or to curb an epidemic of

                                           9
violence in the community[.]” Faust v. State, 302 Ga. 211, 220 (4) (c) (805 SE2d 826)

(2017). Here, the objected-to evidence was rooted in the evidence at trial. Office

Hartman testified that residents in the area had told him that they did not come out of

their houses after hearing gunshots and that it was common to hear gunshots in the

area. Hughley testified that “I always keep my personal handgun on me[,]” and

Thompson testified that Hughley was accompanied by masked individuals that night.

“While [Hughley] objects to the statements made by the [S]tate as improperly

characterizing the evidence, the statements did not introduce new facts but merely

commented on the evidence presented to the jury, and they do not require granting

[Hughley] a new trial.” (Punctuation and footnote omitted.) Whatley v. State, 296 Ga.

App. 72, 76 (3) (637 SE2d 510) (2009).

      4. Hughley claims that he was denied effective assistance of counsel when his

trial counsel failed to file an out-of-time statutory speedy trial demand after the trial

court granted him permission to do so. For the following reasons, we find no

reversible error.

      When reviewing the trial court’s denial of appellant’s claim that the delay in

trying his case constituted ineffective assistance of counsel, “we apply an analysis

based on [Strickland v. Washington, 466 U. S. 668 (104 S.Ct. 2052, 80 LE2d 674)

                                           10
(1984)] – that is, whether appellant demonstrated both deficient performance and that

he suffered prejudice as a result of such alleged deficiency.” (Citations omitted;

emphasis supplied.) Jones v. State, 296 Ga. 561, 569 (6) (769 SE2d 307) (2015).

      Under OCGA § 17-7-171, “[a]ny person accused of a capital offense may enter

a demand for a speedy trial at the term of court at which the indictment is found or at

the next succeeding regular term thereafter; or, by special permission of the court, the

defendant may at any subsequent term thereafter demand a speedy trial.” OCGA §

17–7-171 (a). See also Crawford v. State, 252 Ga. App. 722, 723 (1) (556 SE2d 888)

(2001) (“Although armed robbery is not a capital offense punishable by death, OCGA

§ 17-7-171 is the statute that applies to that offense”) (citation omitted). Thereafter,

“[i]f more than two regular terms of court are convened and adjourned after the term

at which the demand for speedy trial is filed and the defendant is not given a trial,

then the defendant shall be absolutely discharged and acquitted of the offense charged

in the indictment,” so long as (1) juries were impaneled and qualified to try the

defendant during both terms and (2) the defendant was “present in court announcing

ready for trial and requesting a trial on the indictment.” OCGA § 17-7-171 (b). In

Walker v. State, 290 Ga. 696 (723 SE2d 894) (2012), our Supreme Court held that

“more than two regular terms of court” means just that – a number of regular court

                                          11
terms greater than two.” Id. at 698 (2). Therefore, “under the plain language of OCGA

§ 17-7-171 (b), a defendant accused of a capital offense may be discharged and

acquitted only if [he] is not given a trial after at least three full terms of court have

expired since the term in which [his] demand was filed.” Id. The terms of court for

Fulton County begin on the “First Monday in January, March, May, July, September

and November.” OCGA § 15-6-3 (3).2

      On April 22, 2013, Hughley’s trial counsel requested permission to file an out-

of-time demand for speedy trial. The trial court addressed the motion in a hearing on

May 1, 2013. Defense counsel asked to file an out-of-time speedy demand or that the

trial court try the case at the next available calendar in June. The trial court orally

granted Hughley’s motion to file an out-of-time demand for a speedy trial and noted

that, once it was filed, the case would need to be tried by the end of October based on

its mistaken belief that the May/June term of court in Fulton County began on May

1, 2013.3 When it asked defense counsel if this was correct, defense counsel agreed.



      2
        OCGA § 15-6-3 has since been amended several times since 2013, but the
terms of court applicable to Fulton County have not changed. See Laws 2009, Act
210, §1, effective January 1, 2010.
      3
      May 1, 2013, was a Wednesday, and so the motion to file an out-of-time
demand for speedy trial was filed in the March term of court. See OCGA § 15-6-3 (3).

                                           12
The trial court entered an order granting the motion the same day. However, trial

counsel did not file a demand pursuant to this order. See OCGA § 17-7-171 (“A

demand for trial filed pursuant to this Code section shall be filed as a separate,

distinct, and individual document”); Smith v. State, 261 Ga. 298, 299 (2) (404 SE2d

115) (1991) (“While a trial court can grant a defendant special permission to file an

out-of-time demand for speedy trial, a trial court cannot actually make that demand

for defendants”).

      Because the trial court’s order granting Hughley’s motion for an out-of-time

speedy trial demand was filed on Wednesday, May 1, 2013, it was filed in the

March/April 2013 term of court. See OCGA § 15-6-3 (3) (the May/June 2013 term

of court did not commence until the first Monday in May). If Hughley’s trial counsel

had filed the speedy trial demand on May 1, 2013, in accordance with OCGA § 17-7-

171, the trial court would have had until the first Monday in November (November

4, 2013), to commence his case. Hughley was not tried until November 12, 2013.



      Even assuming Hughley’s trial counsel rendered deficient performance,

Hughley has not shown that he was prejudiced by his trial counsel’s alleged error in

failing to file a demand for speedy trial. To show the prejudice component of the

                                         13
Strickland test, a defendant must show a reasonable probability that the outcome of

the case would have been different. Smith v. State, __ Ga. __ (3) (839 SE2d 630)

(2020). Hughley argues that his case would have been discharged because it was tried

after the applicable term of court expired. However, Hughley cannot prove whether

he would have been tried earlier if his trial counsel had properly filed a speedy trial

demand. During the May 1, 2013, hearing, the trial court agreed to expedite

Hughley’s trial and put it on the “front-burner.” However, when the speedy trial

demand was not filed, the trial court may have reasonably concluded that Hughley

abandoned his intent to file a speedy trial demand and adjusted its trial calendar

accordingly. This is especially true when trial counsel testified at the motion for new

trial that he very rarely filed speedy trial demands because they were not always

beneficial to defendants, that he did not think it would have been helpful for Hughley,

and that he did so only at Hughley’s request. Compare Crawford v. State, 278 Ga.

517, 519 (603 SE2d 259) (2004) (defendant was entitled to habeas relief because his

trial counsel was ineffective by failing to comply with the strict requirements of

OCGA § 17-7-171 when its speedy trial demand cited to the wrong statute and that

defendant was thereby prejudiced, and further holding that defendant was also



                                          14
prejudiced by appellate counsel’s failure to raise ineffective assistance of counsel

claim on appeal).

      Judgment affirmed. Reese, P. J., and Markle, J., concur.




                                        15
