Ramirez v

State, 276 Ga. 158, 575 S.E.2d 462 (2003) (decided under former O.C.G.A. § 15-12-40). Disparity met constitutional requirements. — Trial court did not err in denying the defendant’s motion to quash the indictment based on the racial composition of the grand jury list because an absolute disparity of less than five percent was almost always constitutional, and the defendant showed no reason why that general rule did not apply in the defendant’s case; the absolute disparity in over-representation on the grand jury list of 6.429 percent of African-Americans fell within a range that generally met constitutional requirements, and the defendant did not meet the defendant’s burden of showing that the disparity violated the Sixth or Fourteenth Amendment of the United States Constitution, or former O.C.G.A. § 15-12-40. Worthy v. State, 307 Ga. App. 297, 704 S.E.2d 808 (2010) (decided under former O.C.G.A. § 15-12-40). 32 15-12-40.1 JURIES Jury roll need not be a perfect mirror of the community or accurately reflect proportionate strength of every identifiable group, for while the cross-sectional concept is firmly imbedded in the law, the Constitution does not require that the jury or jury venire be a statistical mirror of the community. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev’d on other grounds, 478 F.2d 321 (5th Cir. 1973) (decided under former Code 1933, § 59-106). As used in context of opportunity for discrimination, source of the jury list is the list of registered voters rather than the population as a whole since it is from the registered voters list that the jury commissioners select the initial jury array. Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979) (decided under former Code 1933, § 59-106). List need not include every eligible citizen. — There is no requirement that the jury list include the name of every citizen of the county eligible for jury service; the list must include a fair-cross-section of the eligible members of the community, not every eligible member of the community. Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984), cert. denied, 473 U.S. 911, 105 S. Ct. 3538, 87 L. Ed. 2d 661 (1985) (decided under former O.C.G.A. § 15-12-40). 2. Representation of Classes Age. — Age is not a recognized class for purposes of jury representation. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979), cert. denied, 446 U.S. 970, 100 S. Ct. 2952, 64 L. Ed. 2d 831 (1980) (decided under former Code 1933, § 59-106). Eighteen to 21 age group does not constitute recognizable class for purposes of jury selection. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337 (1979), cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979) (decided under former Code 1933, § 59-106). Eighteen to 29 year-olds. — Petitioner failed to establish that young adults aged 18 to 29 constituted a cognizable group in petitioner’s attempt to show under-representation of young adults in the jury pool since the group was not defined and petitioner did not prove 15-12-40.1 that the views held by adults aged 18 to 29 could not be represented by other members of the community. Willis v. Kemp, 838 F.2d 1510 (11th Cir. 1988), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596 (1989) (decided under former O.C.G.A. § 15-12-40). Exclusion of certain age group from jury pool does not result in per se illegal array. Florence v. State, 243 Ga. 738, 256 S.E.2d 467, cert. denied, 444 U.S. 953, 100 S. Ct. 431, 62 L. Ed. 2d 325 (1979) (decided under former Code 1933, § 59-106). Underrepresentation of young persons on the grand jury list did not violate requirement that the grand jury be drawn from a fair cross section of the community; the underrepresentation was explained by the jury commissioner’s compliance with the legal requirement that only a limited number of the most experienced persons on the traverse jury list be selected for inclusion on the grand jury list. Parks v. State, 254 Ga. 403, 330 S.E.2d 686 (1985) (decided under former O.C.G.A. § 15-12-40). Underrepresentation of Hispanics. — Supreme Court of Georgia found no need to address the trial court’s finding regarding whether Hispanic persons were a cognizable group in Cobb County in order to decide the defendant’s jury composition claim because: (1) the defendant failed to show any actual under-representation of Hispanic persons; (2) a slight over-representation of Hispanic persons who were citizens, in comparison to the total county population, was shown by the evidence; and (3) the defendant’s own expert belied the defendant’s claim of under-representation. Rice v. State, 281 Ga. 149, 635 S.E.2d 707 (2006) (decided under former O.C.G.A. § 15-12-40). Women are an identifiable group for purposes of grand jury representation. Sanders v. State, 237 Ga. 858, 230 S.E.2d 291 (1976) (decided under former Code 1933, § 59-106). Revision of Jury List List not invalidated by delay. — Statutes prescribing the time for selecting the jury list are held to be merely directory, and, if the list is at a later date 33 15-12-40.1 15-12-40.1 COURTS Revision of Jury List (Cont’d) properly selected and returned, the delay furnishes no ground of objection to the panel. Daughtery v. State, 59 Ga. App. 898, 2 S.E.2d 519 (1939) (decided under former Code 1933, § 59-106). Provisions of this section are directory only and failure to revise the jury list in accordance with the timetable set forth does not invalidate the jury list or deprive the defendant of any right to which the defendant is entitled. Burney v. State, 244 Ga. 33, 257 S.E.2d 543, cert. denied, 444 U.S. 970, 100 S. Ct. 463, 62 L. Ed. 2d 385 (1979) (decided under former Code 1933, § 59-106). Revision of jury lists not obligatory. — Trial court’s order quashing an indictment based solely on the failure to revise the grand jury list during the time period set forth in former O.C.G.A. § 15-12-40(a)(1) was reversed as the statute was not obligatory, but directory in nature, merely suggesting a timetable for grand jury lists to be revised. State v. Parlor, 281 Ga. 820, 642 S.E.2d 54 (2007) (decided under former O.C.G.A. § 15-12-40). Delay in revising list. — Fact that jury list should be revised every two years and that two years has elapsed since such revision had taken place has no effect on any rights guaranteed the defendant, and this is especially true if the court sets out in the record a reasonable ground for such slight delay. Daughtery v. State, 59 Ga. App. 898, 2 S.E.2d 519 (1939) (decided under former Code 1933, § 59-106). If jury commissioners fail to revise the jury array for a period of three years and eight months, this alone did not invalidate the jury. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979) (decided under former Code 1933, § 59-106). Failure of the jury commissioners to revise the jury array for a period of three years and eight months will not alone invalidate the jury. Florence v. State, 243 Ga. 738, 256 S.E.2d 467 (1979), cert. denied, 444 U.S. 953, 100 S. Ct. 431, 62 L. Ed. 2d 325 (1979) (decided under former Code 1933, § 59-106). Revision found proper. — Revision of jury list which replaced 1,933 names (which had become ineligible because of age, medical reasons, non residence, or felony convictions) with eligible names was lawful under subsection (b) of O.C.G.A. § 15-12-40. Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 499 S.E.2d 722 (1998) (decided under former O.C.G.A. § 15-12-40). Writ of prohibition to prevent revision. — Taxpayers not entitled to writ of prohibition to prevent revision of list. Teem v. Cox, 148 Ga. 175, 96 S.E. 131 (1918) (decided under former Penal Code 1910, §§ 816 and 819). Citizens and taxpayers have no such interest as will authorize them to maintain a petition for the writ of prohibition to prevent the jury commissioners of the county from revising jury lists and making up jury boxes, and this principle is applicable to a case when a plaintiff is a citizen and taxpayer and also is an attorney at law. Ritcher v. Jordan, 184 Ga. 683, 192 S.E. 715 (1937) (decided under former Code 1933, § 59-106). Proof of Jury Discrimination 1. In General Blacks cannot be excluded. — Conviction cannot stand if the conviction is based on an indictment of the grand jury or verdict of the petit jury from which blacks are excluded by reason of their race. Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967) (decided under former Code 1933, § 59-106). Systematic exclusion must be shown. — Trial will not be struck down because, provided this section has been complied with, it so happens that the particular grand jury panel which returns the indictment or presentment is not in fact representative, nor will the court’s denial of the challenge be overturned unless it appears undeniably that there has been in fact a systematic exclusion of some significantly identifiable representative segment of the population of registered voters. Julian v. State, 134 Ga. App. 592, 215 S.E.2d 496 (1975) (decided under former Code 1933, § 59-106). Age-qualified population of women must be compared with the total age-qualified population, not with the to- 34 15-12-40.1 JURIES tal population, to determine under-representation. West v. State, 252 Ga. 156, 313 S.E.2d 67 (1984) (decided under former O.C.G.A. § 15-12-40). 2. Burden of Proof Burden of proving systematic exclusion. — Defendant has the burden of proving the existence of systematic racial exclusion in the selection of jurors. Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133 (1969), vacated on other grounds, 408 U.S. 935, 92 S. Ct. 2854, 33 L. Ed. 2d 749 (1972) (decided under former Code 1933, § 59-106). Burden is upon the defendant challenging the array of a jury to establish a prima facie case that there has been systematic exclusion of a distinct class of citizens. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976) (decided under former Code 1933, § 59-106). To challenge array of grand jury successfully, appellants must prove prima facie case of unconstitutional discrimination. Welch v. State, 237 Ga. 665, 229 S.E.2d 390 (1976) (decided under former Code 1933, § 59-106). No burden to prove commissioners performed duty. — There is no burden upon the state to prove that jury commissioners performed their duty as prescribed by this section. Garrett v. State, 133 Ga. App. 564, 211 S.E.2d 584 (1974), cert. denied, 423 U.S. 846, 96 S. Ct. 85, 46 L. Ed. 2d 68 (1975) (decided under former Code 1933, § 59-106). Presumption that selection is according to law. — Presumption is that jurors are selected and drawn according to law and are upright and intelligent. Adams v. State, 139 Ga. App. 670, 229 S.E.2d 142 (1976), overruled on other grounds, Kyles v. State, 243 Ga. 490, 255 S.E.2d 10 (1979) (decided under former Code 1933, § 59-106). Once prima facie case is made out burden shifts to prosecution. Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967) (decided under former Code 1933, § 59-106); Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133 (1969), vacated on other grounds, 408 U.S. 935, 92 S. Ct. 2854, 33 L. Ed. 2d 749 (1972) (decided under former Code 1933, 15-12-40.1 § 59-106); Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979) (decided under former Code 1933, § 59-106). Mere affirmations of good faith are insufficient to dispel prima facie case of systematic exclusion when the opportunity for discrimination is present and when respondents fail to show that it is not practiced by the jury commissioners. Bonaparte v. Smith, 362 F. Supp. 1315 (S.D. Ga.), aff ’d, 484 F.2d 956 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S. Ct. 1572, 39 L. Ed. 2d 878 (1974) (decided under former Code 1933, § 59-106). 3. Elements of Prima Facie Case What defendant must prove. — In order to show systematic exclusion of a distinct class of citizens, the defendant must demonstrate sufficiently to establish a prima facie case that: (1) the sources from which the jury list was drawn are tainted in that they provide the opportunity for discrimination; and (2) that use of these sources resulted in a substantial disparity between the percentages of the separate class on the jury list and in the population as a whole. Implicit in these requirements is that the defendant has the burden of showing that the group defendant seeks to prove has been systematically excluded constitutes a distinct and separate class of citizens. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976) (decided under former Code 1933, § 59-106); Fouts v. State, 240 Ga. 39, 239 S.E.2d 366 (1977) (decided under former Code 1933, § 59-106); Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979) (decided under former Code 1933, § 59-106). In order to make out a prima facie case of jury discrimination, the defendant must establish: (1) that a distinctive group or recognizable class in the community has been excluded from the jury lists; (2) that an opportunity for discrimination against this group existed from the source of the jury list; and (3) that use of the infected source produced a significant disparity between the percentages found present in the source and those actually appearing on the jury panels. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979), cert. denied, 446 U.S. 970, 100 S. Ct. 2952, 64 L. 35 15-12-40.1 COURTS Proof of Jury Discrimination (Cont’d) 3. Elements of Prima Facie Case (Cont’d) Ed. 2d 831 (1980) (decided under former Code 1933, § 59-106); Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685, cert. denied, 459 U.S. 981, 103 S. Ct. 317, 74 L. Ed. 2d 293 (1982) (decided under former O.C.G.A. § 15-12-40). To make out a prima facie case of jury discrimination it must be proven that an opportunity for discrimination on account of race existed on the grounds that the source from which the potential jurors was drawn was racially biased, and that the use of such an ‘‘infected source’’ produced a significant disparity between the percentages of blacks found present in the source and those actually appearing on appellant’s grand and petit jury panels. Cochran v. State, 155 Ga. App. 418, 271 S.E.2d 864 (1980) (decided under former Code 1933, § 59-106). Gross disparity in representation may be sufficient. — Challenger must establish by satisfactory evidence purposeful racial discrimination, even if the figures are not proportionate, except that a gross and unexplained disparity may be sufficient alone to demonstrate such discrimination. Talley v. State, 120 Ga. App. 365, 170 S.E.2d 444 (1969) (decided under former Code 1933, § 59-106). The defendant always has the burden of showing jury discrimination. Evidence of ‘‘spectacular’’ underrepresentation meets the burden, making a prima facie case of discrimination. The burden of going forward then shifts to the government to explain the figures in a nondiscriminatory way. Cochran v. State, 155 Ga. App. 418, 271 S.E.2d 864 (1980) (decided under former Code 1933, § 59-106). 4. Specific Cases Determination of significant disparity. — It is the difference between the percentage of blacks on the grand jury list and the percentage in the population as a whole which actually determines whether a ‘‘significant disparity’’ exists to show discrimination. Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979) (decided 15-12-40.1 under former Code 1933, § 59-106). If defendant fails to establish impermissible disparity between percentages of blacks and women on a traverse jury panel and the source of these jurors in the population, the trial court is authorized to overrule defendant’s challenge. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979), cert. denied, 446 U.S. 970, 100 S. Ct. 2952, 64 L. Ed. 2d 831 (1980) (decided under former Code 1933, § 59-106). Petitioner has established a prima facie case of jury discrimination if not one black selected to serve on panel of 60. Avery v. Georgia, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953), for comment, see 5 Mercer L. Rev. 207 (1953) (decided under former Code 1933, § 59-106). Use of statistical evidence of underrepresentation. — When the evidence shows that in three major identifiable groups (sex, race, and age), women are 91.2 percent underrepresented in the grand jury pool and 69.7 percent in the traverse or petit jury pool; African Americans are 49.5 percent underrepresented in the grand jury pool and 61.7 percent in the traverse or petit jury pools, the jury commissioners were, as a matter of law, remiss in the execution of their statutory duties. Gould v. State, 131 Ga. App. 811, 207 S.E.2d 519, aff ’d in part and rev’d in part, 232 Ga. 844, 209 S.E.2d 312 (1974) (decided under former Code 1933, § 59-106). When the grand jury list is composed of 15 percent women and eight percent blacks, while the county population is 55 percent women and 22 and one-half percent blacks, then there is too marked a disparity as a matter of law and the grand jury list is not fairly representative of the community. Sanders v. State, 237 Ga. 858, 230 S.E.2d 291 (1976) (decided under former Code 1933, § 59-106). Trial court did not err by ruling that the composition of the grand and traverse jury pools did not violate the Constitution, former O.C.G.A. § 15-12-40, and the Unified Appeal Procedure when, in a comparison of the 1990 Census numbers for Hispanics in the county with the percentage of Hispanics on the jury lists, it was shown that the absolute disparities were 36 15-12-40.1 JURIES within the legal limit. Morrow v. State, 272 Ga. 691, 532 S.E.2d 78 (2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1408, 149 L. Ed. 2d 350 (2001) (decided under former O.C.G.A. § 15-12-40). Calling commissioners as witnesses. — If the voter registration list is maintained on a segregated basis by the use of separate file cards for whites and blacks, there can be no question that the trial court erred in refusing to allow the defendant to call the jury commissioners as witnesses to explain the relatively small percentage of blacks on the grand jury list. Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979) (decided under former Code 1933, § 59-106). If women comprised 54 percent of the population of the county but only 18 percent of the grand jury list, a challenge to the composition of the jury list was well-taken and convictions and sentences obtained with jurys from such list were set aside. Devier v. State, 250 Ga. 652, 300 S.E.2d 490 (1983), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985) (decided under former O.C.G.A. § 15-12-40). An absolute disparity of 17.7% between the percentage of females in the total population and the percentage of females comprising a grand jury demonstrated a violation of former O.C.G.A. § 15-12-40. West v.