Fouts v. State, 32637

• Decision Date: 25 October 1977
• Docket Number: No. 32637,32637
• Parties: Ronald Terry FOUTS v. The STATE.
• Court: Georgia Supreme Court

Page 366

239 S.E.2d 366

240 Ga. 39

Ronald Terry FOUTS v. The STATE.

No. 32637.

Supreme Court of Georgia.

Oct. 25, 1977.

Howard P. Wallace, C. Arthur Moss, Jr., Griffin, for appellant.

Johnnie L. Caldwell, Jr., Dist. Atty., Thomaston, Arthur K. Bolton, Atty. Gen., James L. Mackay, Asst. Atty. Gen., Atlanta, for appellee.

NICHOLS, Chief Justice.

The appellant, Ronald Terry Fouts, was convicted on March 3, 1977 for the January 10, 1977 murders of Randy Reeves and Stanley Dorsey and for theft by taking.

Mrs. Reeves testified that on the morning of January 10, 1977, she left her home for work, leaving her husband, Randy Reeves, and Stanley Dorsey asleep in the house and that she returned at 1:15 p. m. to find the house in disarray, the back door open, six guns which were usually kept in the gun cabinet missing, stains on the sofa and carpet that appeared to be blood and her husband and Stanley Dorsey gone.

An employee of Southern Bell testified that she came to install a telephone at the Reeves residence about 8:30, that she saw two men there who told her where to put the telephone and that as she was leaving, two other men arrived in an automobile. She did not identify the defendant at trial, however.

A neighbor of the Reeves testified that on the morning of January 10, he noticed a light green Ford station wagon with wood paneling back out of a nearby unused driveway, that the car passed slowly in front of him, that he saw two people inside, and that the driver stared at him enabling him to see the driver's face. He identified the appellant as the driver of the car. He further testified that later the same day he saw the same car first parked next to a telephone company van in front of the Reeves residence, and later parked behind the Reeves home.

Jody Gresham, who was the defendant's accomplice in the murders, testified for the State. He stated that the appellant and the appellant's brother picked him up on the morning of January 10, that after some errands the appellant took his brother home, that he and the appellant then proceeded to Randy Reeves' house, that after they entered the house, the appellant began arguing and fighting with Randy Reeves over an illegal drug transaction and that the appellant struck Reeves in the head with a stick during this fight. He further testified that to prevent Randy Reeves from pulling a gun, he (Jody Gresham) cut Randy Reeves across his back, that the appellant then grabbed the gun and, after some deliberation, shot both Randy Reeves and Stanley Dorsey. He further testified that the appellant moved his car, a light green Ford station wagon with wood paneling, to the back of the Reeves house, that the appellant instructed him to wrap in a blanket some guns that were in a gun closet in the house and place the guns, as well as the victims' bodies, into the car, that they drove to a wooded area where they dumped the bodies into a well, hid the stolen guns under some logs and disposed of the murder weapon, a .25 caliber "Titan" pistol, in a tree stump and that later that evening he complied with the appellant's request to help the appellant and two friends, Mac Cleveland and David Jones, find the pistol to sell to David Jones.

David Jones corroborated Gresham's testimony about the search for the pistol. He testified that although the .25 caliber pistol could not be found, he later returned to the same area and found several guns which were wrapped in a blanket.

Sheriff Gilbert testified Gresham directed him to the well where the bodies were hidden. Expert testimony identified blood scrapings taken from appellant's green station wagon as matching the victims' blood type and identified bloodstains on a stick found near the well as matching Reeves' blood type. Expert testimony further established that hair found on a hairbrush which was discovered near the bloody stick was microscopically identical to hair samples taken from the appellant's head.

Derrell Stowe, a prison trustee, testified that he was given several notes by the appellant to be delivered to Gresham and to the appellant's brother. He gave all the notes to the authorities. The notes, which the defense stipulated were written by the appellant, sought to persuade Gresham to take the blame.

The appellant made two conflicting statements to the police. In the later one he stated that he lent Gresham his car around 10 a. m. on January 10, 1977 and did not get it back until 3 p. m.

1. The appellant enumerates as error the trial court's overruling of his challenge to the composition of the grand jury on the grounds of underrepresentation of blacks, individuals under the age of 34, and women.

The general test to be utilized when reviewing the composition of a grand or petit jury was set out in Pass v. Caldwell, 231 Ga. 192, 200 S.E.2d 720 (1973) and Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1966). Basically, the test provides that a prima facie case of racial discrimination is set out by establishing that an opportunity for discrimination existed from the source of the jury list and that use of the 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. Challenge with Regard to Black Representation:

The appellant's assertion that the grand jury pool contained only 10.1 percent black is unfounded. Mrs. Bolton, jury commissioner for Spalding County, gave uncontradicted testimony that there were 118 blacks out of the total 784 individuals on the grand jury pool, approximately 15 percent of the total pool. There is no dispute between the parties as to the percentage of blacks eligible for grand jury duty in Spalding County. It is 22 percent. We think that these percentages show that blacks were adequately represented. See Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1969).

B. Challenge with Regard to Representation of Persons Under the Age of 34 Years:

The appellant contends that the grand jury was unconstitutionally composed because there was an underrepresentation of persons under 34 years of age. This contention need not be considered because age is not a recognized class for the purposes of grand jury representation. Barrow v. State, 239 Ga. 162, 236 S.E.2d 257 (1977); State v. Gould, 232 Ga. 844, 209 S.E.2d 312 (1974).

C. Challenge with Regard to Women's Representation:

Appellant's final basis for challenging the composition of the grand jury is that women are underrepresented. This contention raises a harder question because the disparity in percentages is sizeable.

Although there is some disagreement as to the actual percentage of eligible women in the community, it can be roughly placed at 50 percent. There is no dispute that the percentage of women selected for the grand jury pool was 22.7 percent. This disparity between the percentages of women in the community who are eligible for duty and the percentage of women ultimately selected into the grand jury pool is sufficiently "significant" to satisfy the first part of the Whitus test.

Now we come to the phase of this opinion which makes application of the two-tier Whitus test appear nonsensical that is, determining whether or not an opportunity for discrimination has been shown. The State, in a good faith effort to show beyond a doubt that no discriminatory intent motivated the selection of the jury pool, has itself established the second prong of the test. The jury commissioners testified at length that they were aware of their duty to insure that the ultimate jury pool consisted of a proportional representation of all the "significantly identifiable groups" in the community. They testified that they worked many hours as a committee and individually to increase the number of blacks and women that would ultimately be found on the grand jury list. The record is replete with undisputed testimony of the commissioners' tireless, prolonged, conscientious and exhaustive efforts to locate as many qualified women and blacks as possible in order to increase the proportional representation of the grand jury pool.

Perhaps the most convincing bit of evidence that the low number of women in the grand jury pool was not the result of discrimination is that three of the six jury commissioners were women. The evidence also shows that the women's participation in selecting jurors was not passive. Commissioner Elaine Bolton testified "I'm a woman; I pushed to get a lot more women on." Commissioner Reba Matthews testified that all the jury commissioners made a concerted, as well as an individual, effort to select a jury pool which would be fairly representative. While this court recognizes that mere affirmations of good faith have been held insufficient to overcome prima facie cases of discrimination (Barrow v. State, supra), the testimony by the female jury commissioners can be used to show that they actively participated in the selection process. Moreover, the testimony of the...