Clark v. State, 42683

• Decision Date: 08 January 1986
• Docket Number: No. 42683,42683
• Citation: 255 Ga. 370,338 S.E.2d 269
• Parties: CLARK v. The STATE.
• Court: Georgia Supreme Court

Page 269

338 S.E.2d 269

255 Ga. 370

CLARK v. The STATE.

No. 42683.

Supreme Court of Georgia.

Jan. 8, 1986.

Reconsideration Denied Jan. 28, 1986.

William David Hentz, William Ralph Hill, LaFayette, for Clark.

David L. Lomenick, Jr., Dist. Atty., LaFayette, David J. Dunn, Jr., Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Atlanta, Eddie Snelling, Jr., Staff Asst. Atty. Gen., for the State.

MARSHALL, Presiding Justice.

The appellant, Jackie D. Clark, was convicted of the murder of his wife, Martha E. Clark, a/k/a Beth Clark. ¹ He was sentenced to life imprisonment. He appeals. We affirm.

The evidence showed that the appellant and the victim had been married for approximately two months at the time of the victim's death, and they lived in Chickamauga, Georgia. The victim worked as a dancer and waitress at the Night Haven Lounge, and the appellant, who was unemployed, had previously worked as a professional wrestler and body guard. The couple had marital difficulties.

During the evening of February 20, 1984, the victim, who was drinking heavily, informed the appellant that she wanted to leave him. The appellant persuaded her to go to bed that night and leave in the morning if she still was so inclined. However, she arose later that night. After having picked up a knife, she left the house clad only in a coat. The appellant retrieved a handgun, and he pursued her. There occurred a confrontation between the two of them in the vicinity of a neighbor's home, and this resulted in the appellant's shooting the victim twice, thereby killing her.

After the shooting, the appellant awakened his neighbor, informed him that he had injured his wife, relinquished his gun to the neighbor, and requested that the neighbor call the law. At the time, the appellant was not wearing any clothes. The neighbor testified that the appellant stated to him that, "It has been nice knowing you ... I'm gone this time."

At trial, the appellant claimed justification and self-defense, arguing that he shot the victim because she was attacking him with the knife. However, there was evidence showing that, as one of the bullets entered the victim, she was turning away from the appellant and was at least 15 feet away from him. The other bullet entered the victim's forehead between her eyes and was fired from a distance of two to four inches. Although the appellant was treated for a superficial knife wound, neighbors who saw him immediately after the shooting of his wife did not notice any injuries. Large amounts of alcohol found in the victim's blood would have markedly reduced her motor functions.

In this appeal, the appellant asserts seven enumerations of error.

1. First, the appellant argues that the trial court erred in denying his motion to quash the indictment on the ground that, in violation of OCGA § 15-12-60(b)(2), a convicted felon served on the grand jury indicting the appellant. ²

OCGA § 15-12-60(b)(2), supra, provides that any person who had been convicted of a felony and who has not been pardoned or had his civil rights restored is incompetent to serve as a grand juror. At the hearing conducted on the appellant's motion to quash, evidence was presented that a person serving on the grand jury indicting the appellant had been convicted of felonious assault in the State of Tennessee in 1954.

The appellant's objection to the convicted felon's serving on the grand jury was not meritorious for at least one of the following reasons. First, OCGA § 15-12-60(b)(2), supra, was not enacted until 1976, and it has been held that this statute does not apply to convictions rendered prior to 1976. Gunn v. State, 245 Ga. 359 (1), 264 S.E.2d 862 (1980). Second, under the rule that one state will not enforce the penal laws of another state, it has been held that a juror convicted of a criminal offense in another state, or in the federal system, will not be disqualified as a juror in the absence of an express statute disqualifying such an individual as a juror for such reason. Brady v. State, 199 Ga. 566 (2), 34 S.E.2d 849 (1945). (However, it was noted in Brady that, at that time, there was no statute in this state rendering a person convicted of a crime, whether in Georgia or elsewhere, disqualified as a juror.)

2. Second, the appellant argues that the trial court erred in denying his motion challenging the array of the grand and petit juries.

The appellant's complaint is that Mr. Ralph Phillips served as a county jury commissioner notwithstanding the fact that he is employed by the county as a deputy sheriff and jury bailiff. ³ The appellant argues that Mr. Phillips' service as a jury commissioner contravened OCGA § 15-12-20(a), which prohibits county officers from serving on the county board of jury commissioners. ⁴ The appellant also argues that, as a result of Mr. Phillips' service as a jury commissioner, the methods employed by the board of jury commissioners for the selection of the individuals composing the grand and petit jury lists resulted in the following: (1) the jury lists not being representative of a fair crosssection of the community; (2) all citizens of the community not having an opportunity to serve as grand and petit jurors; and (3) a systematic exclusion from jury service of individuals on account of their race, sex, income status, age, occupation, and transient status.

Two hearings were held on the appellant's jury challenge. The first hearing was held in May of 1984, which was approximately three months prior to the appellant's trial. The next hearing was held in May of 1985, which was approximately nine months after the appellant's trial. However, at the time of the second hearing, the grand and petit jury lists challenged by the appellant prior to his trial had been revised.

" 'A challenge to the array of grand jurors is waived unless timely filed. As stated in Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975) (cert. den. 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976)): "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(1a), 172 S.E.2d 680 (1970); Williams v. State, 210 Ga. 665, 667, 82 S.E.2d 217 (1954)." ' Tennon v. State, 235 Ga. 594(1), 220 S.E.2d 914 (1975); Hamby v. State, 243 Ga. 339(1), 253 S.E.2d 759 (1979)." Sullivan v. State, 246 Ga. 426, 271 S.E.2d 823 (1980). ⁵ A challenge to the array of the petit jury which is not raised until after the trial, likewise is not timely. Griffin v. State, 245 Ga. 345(2), 265 S.E.2d 20 (1980). See Smith v. Kemp, 715 F.2d 1459(9-13) (11th Cir.1983). It necessarily follows that evidence which is not introduced in support of a jury challenge until after the trial is not timely. Therefore, we consider only the evidence adduced at the first hearing in May of 1984.

The testimony introduced at the May, 1984, hearing showed that the jury commissioners, in their most then-recent revision of the grand and petit jury lists, used voters lists, telephone directories, and lists of high school graduates in their selection of individuals to be placed on the grand and petit jury lists. They were given copies of the 1980 census, which contained breakdowns of the population based on race, age, and sex. ⁶ They were furnished with guidelines to be used so as to compile jury lists containing representative crosssections of the community. Because they were making a conscious effort to compile jury lists containing representative crosssections of the community, they did not select names through a random method. Each jury commissioner was primarily responsible for selecting names from the area in which he resided and with which he was therefore most familiar. ⁷

The evidence introduced at the May 1984, hearing did not reveal any actual discrimination on the part of the jury commissioners in their selection of the grand and petit juries. And, from our review of the record, it does not appear that at trial the appellant established any significant disparity between the presence of any recognized class in the community and on the jury rolls. In this appeal, the appellant does not state what the percentage disparities are. Therefore, we conclude that the appellant has not made out a prima facie case to support his jury challenge. E.g., Barrow v. State, 239 Ga. 162(2), 236 S.E.2d 257 (1977). ⁸

As previously stated, the appellant also argues that Mr. Ralph Phillips' service as a jury commissioner contravened the requirement of OCGA § 15-12-20, supra, that county officers not serve on the county board of jury commissioners. However, it has been held that a deputy sheriff is not a county officer. Employees Retirement System v. Lewis, 109 Ga.App. 476(2a), 136 S.E.2d 518 (1964). See also Art. IX, Sec. I, Par. III(a) of the Georgia Constitution of 1983. ⁹ In addition, it has been held that, although a person may be disqualified from serving as a jury commissioner, the official acts of the jury cannot be collaterally attacked on the ground of such disqualification. Wright v. State, 124 Ga. 84, 85, 52 S.E. 146 (1905). Accord, Cox v. State, 64 Ga. 375(2) (1879). As held in Wright v. State, 124 Ga., supra, at p. 85, 52 S.E. 146, "[A]lthough a person may be absolutely ineligible to hold any civil office whatever in this State, yet his official acts, while holding a commission as a public officer, are valid as the acts of an officer de facto. It is well settled that the acts of an officer de facto can not be collaterally attacked ..." ¹⁰

However, we do disapprove of the practice of appointing a deputy sheriff who is an employee of...