Barrow v. State, 32223

• Decision Date: 07 June 1977
• Docket Number: No. 32223,32223
• Citation: 236 S.E.2d 257,239 Ga. 162
• Parties: Keithen BARROW v. The STATE.
• Court: Georgia Supreme Court

Page 257

236 S.E.2d 257

239 Ga. 162

Keithen BARROW v. The STATE.

No. 32223.

Supreme Court of Georgia.

June 7, 1977.

Millard C. Farmer, Jr., Atlanta, for appellant.

J. Cleve Miller, Elberton, Bryant Huff, Clete Johnson, Dist. Attys., Royston, K. Dawson Jackson, Asst. Dist. Atty., Lawrenceville, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., Atlanta, for appellee.

UNDERCOFLER, Presiding Justice.

We have granted Barrow's application for interlocutory appeal to consider important questions concerning the compositions of the grand jury that indicted him and the traverse jury that will try him for murder. Barrow faces the death penalty. The trial court sustained the legality of both juries; we reverse.

1. Barrow was indicted on April 21, 1975. Although he was represented by counsel from February 11, 1975, no motion was made regarding the composition of the grand jury. Barrow was tried, convicted, and given the death sentence for murder, but his conviction was overturned by this court and sent back for a new trial. Barrow v. State, 235 Ga. 635, 221 S.E.2d 416 (1975). Barrow then filed his challenge to the grand jury, which the trial court overruled as not timely. We, however, because of the special facts of this case, reverse the trial court on this point.

The general rule is that the grand jury composition must be challenged prior to indictment unless the defendant shows he had no actual or constructive notice of the illegality. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975); McHan v. State, 232 Ga. 470, 207 S.E.2d 457 (1974); Williams v. State, 210 Ga. 665, 82 S.E.2d 217 (1954). Failure to do so is deemed a waiver. Cobb v. State, 218 Ga. 10, 126 S.E.2d 231 (1962). Under these general rules Barrow's challenge would indeed have been filed too late.

We have also said, however, that "it is a lawyer's proper function and duty to determine whether it is to the interest of his client to raise the issue of systematic exclusion. Cobb v. State, 218 Ga. 10, 24(6), 126 S.E.2d 231 (1962)." Burkes v. Whitley, 221 Ga. 108, 109, 143 S.E.2d 171, 173 (1965). In his testimony at the hearing on Barrow's motions, the public defender, who had represented Barrow at his first trial, made very clear that he had not considered making such a challenge, even though he realized under our cases he probably would have been successful.

The attorney stated that the reasons he did not challenge the grand jury included the fact that he had been appointed for a two-year term by the superior court judge of that county and wanted to be rehired, that he felt adverse community pressure would inure to him personally if he attempted to have more blacks placed on the grand jury, and that he had obligations to other clients whom he did not want to jeopardize by bringing an unpopular motion. He said he also felt some community pressure because he represented Barrow, who was accused of killing a well-liked white member of the community, and because he thought such a challenge would be costly in both time and money to the county. For all these reasons, he made it a blanket policy not to challenge the grand jury in any case, thinking that for personal reasons, as well as for the client's sake, it would not be the expedient course to follow.

On cross-examination by the State: "Q: Were there not other reasons besides being Public Defender that you did not file such a challenge in Keithen Barrow's case? A: Well, there were other reasons but they all reflect on my being Public Defender, yes sir. Q: Are you saying that you did not, and do you remember that you told me that one of the reasons you did it (sic) was because you felt that it would be in the best interest of Keithen Barrow in this case not to so file this challenge? A: Well, Keithen Barrow or anybody else for that matter."

We think on this record that Barrow's attorney did not exercise "a lawyer's proper function and duty to determine whether it is to the interest of his client to raise the issue of systematic exclusion." Burkes v. State, supra; Cobb v. State, supra. We therefore hold that under these extraordinary circumstances the trial court erred in overruling Barrow's challenge to the grand jury as having been raised too late.

2. We next reach the merits of Barrow's plea in abatement that the 1973 grand jury and 1975 traverse jury are illegally constituted. He claims that the 1973 grand jury which indicted him and the 1975 traverse jury are unconstitutional because blacks, women, and 18 to 30-year-olds are underrepresented.

We do not consider the alleged underrepresentation of 18 to 30-year-olds because they are not a recognized class. State v. Gould, 232 Ga. 844, 209 S.E.2d 312 (1974); White v. State, 230 Ga. 327, 196 S.E.2d 849 (1973). Nor do we consider the exclusion of women on the grand jury because the 1973 grand jury which indicted Barrow was constituted before the United States Supreme Court's decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), holding that women as a class could not be excluded from jury service. That court made clear in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1974) that Taylor was not retroactive and would not apply to juries empaneled before January 21, 1975, when that opinion was decided. Young v. State, 239 Ga. 53, 236 S.E.2d 1 (1977). The underrepresentation of women is pertinent to the 1975 traverse jury, however. We must also consider the underrepresentation of blacks presented by both of these jury challenges. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1966).

The test to be applied was set out in Pass v. Caldwell, 231 Ga. 192, 200 S.E.2d 720 (1973), citing Whitus v. Georgia, supra. The requirements for making out a prima facie case for discrimination are two-fold. First, the appellant must prove that an opportunity for discrimination existed from the source of the jury list, and, second, that the use of that infected source produced a significant disparity between the percentages found present in the source and those actually appearing on the grand and traverse jury panels.

(a) Significant disparity.

Blacks comprise 37.3% of the community but only 3% of the 1973 grand jury. This differential is sufficient to establish a prima facie case of systematic exclusion of blacks from the grand jury. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975). "Evidence of 'spectacular' underrepresentation meets the burden making a prima facie case of discrimination." Pass v. Caldwell, supra, 231 Ga. p. 192, 200 S.E.2d p. 721.

The 1975 traverse jury, from which Barrow's petit jury will be chosen, was originally 11.3% black and 34.6% female versus 37.3% and 51%, respectively, in the community. The hearings in the trial court below on Barrow's challenges were suspended by the judge; he then ordered the jury commissioners to supplement the jury list so that it would "fairly represent a cross-section of the community." Barrow informed the court that 757 blacks of which 686 would have to be female were necessary to correct the percentages on the traverse jury. However, 483 names were added of which only 321 were black. Barrow claims that the supplemented traverse jury, now 22.9% black versus 37.3% in the community, and 39.2% female, as opposed to 51% in the community, is still improperly constituted.

An historical pattern of discrimination has been shown by Barrow, who submitted evidence of the underrepresentation of blacks and women over a period of years. Compare Gould v. State, 131 Ga.App. 811, 207 S.E.2d 519 (1974), affirmed in part, reversed in part, 232 Ga. 844, 209 S.E.2d 312, supra, with White v. State, supra. See Division 3, infra. In Turner v. Fouche, 396 U.S. 346, 355, 90 S.Ct. 532, 24 L.Ed.2d 567, the United States Supreme Court held the Taliaferro County, Georgia, grand jury unconstitutional where blacks made up 37% of the grand jury on a supplemented grand jury list, and where the county was 60% black. The Supreme Court thus found that 38.3% underrepresentation of blacks and the opportunity to discriminate made out a prima facie case of discrimination. On this Oglethorpe County traverse jury list, as supplemented, blacks are 38.6% underrepresented. Therefore, Barrow has shown that a "significant disparity" existed between the source, the community, and the actual jury lists.

(b) Opportunity for discrimination.

The commissioners testified that the method of selecting jurors was to proceed through the list of voters choosing or rejecting a prospective juror on the recommendation of a commissioner who personally knew the voter. Anyone not known by a member of the commission was not selected. There were no black jury commissioners. Although attempts were at times made to identify unknown voters, this was not a regular or extensive practice. Turner v. Fouche, supra.

The fact that the potential jurors had to be known by one of the commissioners leads to the conclusion that the race and sex of the persons selected were also apparent. Although there was no evidence that jurors were consciously selected by race or sex, the method used made it incumbent on the State to show that the procedure was in fact neutral. Pass v. Caldwell, supra. The only evidence presented by the State was in the form of affirmations by the commissioners that qualified jurors were selected without regard to race or sex. Mere statements of good faith have never been deemed sufficient to overcome a prima facie case of discrimination. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1977); Turner v. Fouche, supra; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1949).

Furthermore, the testimony at the hearing in the trial court from members of the jury commission showed that the commissioners were not fully informed of their duties in composing the traverse and grand jury lists. Few, if any, realized that they could go outside of the voters' list in...