Sanders v. State

• Citation: 235 Ga. 425,219 S.E.2d 768
• Decision Date: 28 October 1975
• Docket Number: No. 29997,29997
• Parties: David Lee SANDERS v. The STATE.
• Court: Supreme Court of Georgia

Page 768

219 S.E.2d 768

235 Ga. 425

David Lee SANDERS v. The STATE.

No. 29997.

Supreme Court of Georgia.

Oct. 28, 1975.

Thomas M. Jackson, Macon, for appellant.

Edward E. McGarity, Dist. Atty., McDonough, Phillip Benson Ham, Forsyth, Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Asst. Atty. Gen., Atlanta, for appellee.

PER CURIAM.

Appellant David Sanders was indicted on July 31, 1973, for the murder of Sheila Hunnicutt, the wife of his employer. The case was tried before a jury, resulting in a verdict of guilty, and appellant was sentenced to a life imprisonment term on August 17, 1973. The trial court overruled a motion for new trial and this appeal followed in due course, enumerating several errors.

Appellant's contentions are that the trial court erred in overruling his challenge to the array of jurors; erred in overruling his motion to suppress certain physical evidence and erred in admitting such evidence at trial; erred in admitting into evidence the sheriff's testimony about an incriminating statement made to him by the appellant while in custody; erred in admitting opinion testimony by the sheriff as an expert; and, erred in overruling the motion for new trial.

I. Challenge to the Array

Prior to trial appellant filed a 'Motion to Quash Indictments and Challenge to the Array of Grand and Traverse Jurors,' alleging that blacks, women and especially black women were purposefully and systematically excluded from the grand and traverse jury lists, resulting in a violation of the due process and equal protection clauses of the United States and Georgia Constitutions. After hearing evidence the trial court overruled the motion.

Appellant's motion to quash the indictment and challenge to the array of the grand jurors was not timely filed. In order for such a motion to be entertained by the trial court, it must be made prior to the return of the indictment or the defendant must show that he had no knowledge, either actual or constructive, of such alleged illegal composition of the grand jury prior to the time the indictment was returned; otherwise, the objection is deemed to be waived. Estes v. State, 232 Ga. 703, 708, 208 S.E.2d 806 (1974); accord, McHan v. State, 232 Ga. 470, 471(2), 207 S.E.2d 457 (1974); Simmons v. State, 226 Ga. 110, 111, 172 S.E.2d 680 (1970); Williams v. State, 210 Ga. 665, 667, 82 S.E.2d 217 (1954). No such showing was made in this case, and it is clear that the motion, which was filed on August 6, 1973, was filed subsequent to the return of the indictment, which occurred on July 31, 1973. Furthermore, the evidence discloses that appellant was appointed an attorney on July 9, 1973. On the basis of Estes, McHan and Simmons, therefore, the ruling of the trial court denying appellant's motion to quash the indictment and challenge to the array of grand jurors must be affirmed on its face. Appellant's challenge to the array of the traverse jury, however, was timely filed and will be considered on its merits.

Appellant alleged in his motion that according to the 1970 federal census there are 6,249 persons living in Monroe County who are 21 years of age, or older. Of this group, 60 percent are white; 40 percent are black; 44 percent are male; 56 percent are female; and 22 percent are black females. Appellant averred that the traverse jury list was composed of 735 names of which 20 percent were black; 12 percent were females and 3 percent were black females.

The evidence adduced at the hearings on the motion established that the latest jury list revision prior to the trial occurred in April, 1972, and that the jury commission was then composed of three women, one of whom was black, and three men, one of whom was black. In addition, the clerk of the commission, who was present at all times during the selection process, was also a woman. The testimony of the commissioners, describing the method they used for compiling the jury list, was similar on all material points. The basic source of names for the jury list was the official registered voters' list of the county. The commissioners, as a group, reviewed every name on the list to determine whether each individual thereon was qualified to serve on the jury list pursuant to Code Ann. § 59-106. In those instances where only one commissioner was familiar with an individual, the other commissioners generally would defer to that commissioner's estimation of the individual's qualifications.

When none of the commissioners was familiar with an individual whose name appeared on the voters' list, that person's name was placed on a separate list and a commissioner was selected to investigate that person's qualifications for jury duty. A separate list was also made of women with young children who had not requested in writing to be exempted from jury service. Those women were then contacted to determine if they desired to have their names placed on the jury list.

In addition, the commissioners placed upon the traverse jury list persons whose names did not appear on the voters' list. The names of such people came to the attention of the commission either as the result of a person contacting the commission or an individual commissioner and requesting that his or her name be placed on the jury list, or as the result of a commissioner proposing the name of a person with whom he was acquainted and who he knew was not on the voters' list.

All of the commissioners, including the women and black commissioners, made an effort to go into the community in order to find people who were qualified for jury service but who did not appear on the voters' list. The evidence shows that both black and white commissioners proposed the names of blacks for inclusion on the jury list. All persons, who were not listed on the voters' list but who were proposed for inclusion on the jury list, were subjected to the same qualifications review as that accorded to persons who did appear on the voters' list. The testimony of one commissioner indicates that approximately 200 names were added to the jury list in this manner.

The clerk of the commission and all of the commissioners including the black and woman commissioners testified that no particular mention was made of the race or sex of an individual during the selection process and that no one was excluded from the jury list because of his or her race or sex. They all testified that in their opinion the final jury list represented a fair cross-section of the county. However, they all also testified that they did not know, nor was a calculation ever made, of the number or proportions of blacks, whites, males, females, and black females on the voter list or the final traverse jury list.

The only evidence of the actual composition of the final traverse jury list is the testimony elicited from Mr. Paul James, a black jury commissioner. The list itself was not introduced into evidence. After reviewing the traverse jury list, Mr. James identified 163 persons, of the 735 appearing on the list, as being black and he further identified 30 of the 163 black persons as being black females. Mr. James also testified that although he was familiar with the black community, he may not have identified the names of all the blacks who were on the jury list.

Although appellant contended in the trial court and contends on appeal that females as a class were purposefully excluded from the traverse jury list, stating in his brief in this court that '(a) review of (the traverse jury list), identifying females by their names, revealed that of the 735 names appearing on the traverse jury list, only 90 (or 12%) were females,' nevertheless, these allegations are not supported in the record by any evidence or stipulation. Indeed, there is no evidence in the record regarding the number or percentage of females on the traverse jury list. This deficiency in the evidence is fatal to appellant's claim that females as a class were the subject of discrimination in the jury selection procedures, for the burden was upon him to demonstrate that such discrimination occurred. Swain v. Alabama, 380 U.S. 202, 205, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Appellant has, consequently, failed to establish that females as a class are not adequately represented on the traverse jury list.

Appellant also introduced into evidence a statistical abstract of the official registered voters' list for Monroe County, current through July 11, 1973. According to the abstract there is a total of 5,894 registered voters in the county, 517 (8.77 percent) of which are unidentified as to race or sex. Of the remaining 5,377 voters, 34.666 percent are black and 18.932 percent are black females. This information was obtained from voter registration cards kept on file by the county. The voters list itself, which is the only document relating to voters used by the jury commissioners, lists only names, unidentified as to address, race or sex.

A defendant is not constitutionally entitled to a venire or jury roll of any particular composition, but the 14th Amendment Equal Protection and Due Process Clause and the 6th Amendment Right to a Jury Trial do require that the State not deliberately and systematically exclude identifiable and distinct groups from their jury lists. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); Alexander v. Louisiana, 405 U.S. 625, 628, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Hernandez v. Texas, 347 U.S. 475, 478, 74 S.Ct. 667, 98 L.Ed. 866 (1954). The burden, however, is on the defendant to prove such purposeful discrimination. Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Tarrance v Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572 (1903).

Appellant presented no evidence regarding the composition of any traverse jury list prior to the one from which the jury...