Cochran v. State

• Decision Date: 25 September 1979
• Docket Number: No. 57948,57948
• Citation: 260 S.E.2d 391,151 Ga.App. 478
• Parties: COCHRAN v. The STATE.
• Court: Georgia Court of Appeals

Page 391

260 S.E.2d 391

151 Ga.App. 478

COCHRAN v. The STATE.

No. 57948.

Court of Appeals of Georgia.

Argued June 13, 1979.

Decided Sept. 25, 1979.

Donald L. Lamberth, Montezuma, for appellant.

Claude N. Morris, Dist. Atty., Howard S. McKelvey, Jr., Asst. Dist. Atty., for appellee.

BANKE, Judge.

The appellant was convicted of eight counts of aggravated assault after he drove his car into a crowd of people who had assembled to observe a Ku Klux Klan rally near Plains, Georgia. He appeals the denial of his motion for new trial. Held :

1. The evidence more than amply supports the verdict.

2. The trial court erred in denying the appellant's challenge to the array of the grand jury without first allowing defense counsel an opportunity to question the jury commissioners about the procedures which they had used to compile the grand jury list.

" 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." Barrow v. State, 239 Ga. 162, 164, 236 S.E.2d 257, 259-260 (1977).

The appellant introduced evidence showing that blacks made up 18.1 percent of the grand jury panel from which the grand jury that indicted him was chosen; whereas, according to the 1970 census, blacks make up 39 percent of the eligible population of the county as a whole. The comparative disparity between the percentage of blacks in the population and the percentage of blacks on the grand jury list was thus shown to be 54 percent. However, the trial court declined to view the general population as the "source" of the grand jury list as that term is used in Barrow v. State, supra, and for this reason concluded that the defendant's statistics did not support a prima facie showing of racial discrimination. Thus, the court deemed it unnecessary to hear testimony from the jury commissioners on the "opportunity for discrimination" issue.

As noted above, Barrow holds that a prima facie case of discrimination is established when the evidence shows both that an opportunity for discrimination existed from "the source" of the jury list and 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 jury panel. Barrow v. State, supra, at 165, 236 S.E.2d 257. Since, under Code Ann. § 59-106, the grand jury panel is chosen from the traverse jury list and, since the population as a whole could not logically be termed an "infected source" which could give rise to an opportunity to discriminate, the court determined that the source of the grand jury panel must be the traverse jury list rather than the general population. However, the defendant had introduced no evidence showing the racial composition of the traverse jury list. Thus, the court ruled that there was no need for further consideration of the jury challenge.

While the lower court's interpretation of the language in Barrow is both logical and reasonable, it is clear from the Holding in that case and in other cases dealing with the issue that 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. See Turner v. Fouche, 396 U.S. 346, 360-361, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Sanders v. State, 237 Ga. 858(1), 230 S.E.2d 291 (1976); Fouts v. State, 240 Ga. 39(1), 41, 239 S.E.2d 366 (1977); Gould v. State, 131 Ga.App. 811(1), 207 S.E.2d 519 (1974), affirmed in pertinent part 232 Ga. 844, 209 S.E.2d 312 (1974). It is also clear that a comparative disparity of 54 percent between these two figures is amply " significant" to authorize an inquiry into whether an "Opportunity for discrimination existed from the source of the jury list." Barrow v. State, supra, 239 Ga. at 165, 236 S.E.2d at 259-260. See also Fouts v. State, supra; Gould v. State, supra.

As used in the "opportunity for discrimination" context, the " source" of the jury list evidently becomes 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. See Barrow v. State, supra, (2b). See generally Code Ann. § 59-106. While not required to do so, the defendant in this case offered evidence that an opportunity for discrimination existed from the registered voters list even before he attempted to question the jury commissioners. The transcript reveals that the voter registration list for Sumter County is maintained on a segregated basis by the use of separate file cards for whites and blacks. See Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). Under these circumstances, 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.

3. The state contends that even if the defendant's figures showing the racial composition of the grand jury panel otherwise support his charge of racial discrimination, those figures are without probative value because they were based on hearsay. The witness who provided the figures was an expert statistician called by the defense. He stated that he had obtained them from research done by defense counsel and defense counsel's staff, which included the defendant's wife. The state did not object to the testimony at the time.

" Generally, an expert cannot state his opinion based upon observations or reports which are not admitted in evidence. (Cits.) On the other hand, an expert can give an opinion based upon facts which he personally observes. (Cits.) And where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, upon the other's findings. (Cit.)" Dual S. Enterprises v. Webb, 138 Ga.App. 810(4), 813, 227 S.E.2d 418, 422 (1976). The expert in this case testified that he had personally satisfied himself as to the accuracy of the figures by conducting a series of spot checks. Thus, we hold that the evidence as to the racial makeup of the jury list was both competent and admissible.

4. We similarly reject the state's contention that the burden was on the appellant to show that he was harmed by the manner in which the grand jurors were selected. Once the defendant puts forth a prima facie case of discrimination in the jury selection process, the burden is not on him to show harm, it is on the state to prove harmlessness. Accord Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, supra; Sullivan v. State, 225 Ga. 301, 303, 168 S.E.2d 133 (1969). We are aware of no case where this has been successfully done, although it was intimated in Sanders v. State, 237 Ga. 858(1), 230 S.E.2d 291, supra, that a proportionate representation of blacks on the grand jury which actually indicted the defendant would render harmless any racial discrimination involved in the selection of the grand jury panel as a whole.

5. In response to the defendant's contention that the court erred in refusing to grant him a change of venue, we quote extensively from the Supreme Court's decision in Patterson v. State, 239 Ga. 409(5), 238 S.E.2d 2 (1977): "The decision to grant a change of venue lies within the discretion of the trial court, and its discretion will not be disturbed absent an abuse of that discretion. Allen v. State, 235 Ga. 709, 713, 221 S.E.2d 405 (1975); Jarrell v. State, 234 Ga. 410, 415, 216 S.E.2d 258 (1975).

" The record before us shows a very extensive voir dire questioning of the prospective and selected jurors. The record establishes beyond doubt that the jurors selected stated that nothing they had seen, heard or read had caused them to form an opinion for or against appellant and that they had no fixed opinion as to his guilt or innocence. The test adopted by this court in determining whether or not a change of venue should be granted is whether the jurors summoned to try the case have formed fixed opinions as to guilt or innocence from unfavorable pre-trial publicity. Coleman v. State, 237 Ga. 84, 91, 226 S.E.2d 911 (1976); Krist v. Caldwell, 230 Ga. 536, 198 S.E.2d 161 (1973). When the evidence is viewed in light of the established standard, we find that the trial court did not abuse its discretion in overruling the change of venue motion." Patterson v. State, supra, at 418, 238 S.E.2d at 9.

An additional ground for upholding the denial of the motion for change in venue is that the defendant failed to use all of his peremptory challenges. "The general rule is that appellate courts will not reverse the trial court's overruling of a motion for change of venue where the appellant has not exhausted his peremptory challenges. (Cits.)" Coleman v. State, supra, at 92, 226 S.E.2d at 918. The rule is particularly applicable to this case, since only one of the jurors actually selected to serve had been challenged for cause by the defendant.

6. The defendant enumerates as error the trial judge's refusal to disqualify himself due to personal prejudice and bias allegedly demonstrated against the defendant at the hearing on his challenge to the array of the grand jury. We have carefully reviewed the portions of the transcript cited in support of these allegations and have found no indication that the court was prejudiced against either the defendant or his case. Furthermore, even had such prejudice existed, it could not have affected the jury's verdict unless it had somehow been communicated to the jury, something which is not even alleged to have taken place. The defendant's conviction...