Ford v. State

• Decision Date: 30 November 1987
• Docket Number: No. 42154,42154
• Citation: 362 S.E.2d 764,257 Ga. 661
• Parties: FORD v. The STATE.
• Court: Georgia Supreme Court

Page 764

362 S.E.2d 764

257 Ga. 661

FORD v. The STATE.

No. 42154.

Supreme Court of Georgia.

Nov. 30, 1987.

Reconsideration Denied Dec. 16, 1987.

Harvey & Jarnigin, Nelson Jarnigin, for appellant.

William G. Hamrick, Jr., District Attorney, Michael J. Bowers, Attorney General, Dennis R. Dunn, Assistant Attorney General, for appellee.

SMITH, Justice.

Ford v. State, 255 Ga. 81, 335 S.E.2d 567 (1985), was pending before the Supreme Court of the United States when Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), was decided on January 13, 1987. Griffith established the principle that the ruling in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), applied retroactively to all cases, state or federal, pending on direct review when Batson was decided. Thus, in keeping with Griffith, supra, the Supreme Court of the United States vacated its grant of Ford's petition for writ of certiorari, U.S. Supreme Court Case No. 85-6253, and on March 25, 1987, remanded the case to the Supreme Court of Georgia for further consideration in light of Griffith v. Kentucky, supra, 479 U.S. ----, 107 S.Ct. 1268, 94 L.Ed.2d 129 (1987).

1. Batson stands for the principle that a prosecutor may not strike a black juror solely because of his race, nor upon any assumption based solely upon the juror's race. 106 S.Ct. at 1723. See Gamble v. State, 257 Ga. 325, 357 S.E.2d 792 (1987).

2. In Batson, the defense counsel moved to discharge the jury before it was sworn on the ground that the prosecutor's removal of the black veniremen, through the use of peremptory challenges, violated his 6th and 14th Amendment rights. The Batson Court observed that, "[the] petitioner made a timely objection to the prosecutor's removal of all black persons on the venire." Id. 106 S.Ct. at p. 1725. The Court also observed: "In light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today." Id. at p. 1724, fn. 24. It went on to state that it expressed no view as to how a court should handle the matter, upon a finding of discrimination against black jurors, but made it clear that it must be handled in such a manner as to erase the discrimination in the jury selection.

3. Batson may be understood to require that any objection as to peremptory strikes be made before the trial of the case begins. This is further supported by Griffith, supra, 107 S.Ct. at p. 710, where the facts show that the motion to discharge the panel based upon a discriminatory selection of jurors was made immediately after the selection process was completed and before trial had begun. It is consistent with our holding in State v. Sparks, 257 Ga. 97, 98, 355 S.E.2d 658 (1987), where we held that "any claim under Batson should be raised prior to the time the jurors selected to try the case are sworn."

4. In this case, Ford filed a "Motion To Restrict Racial Use of Peremptory Challenges." ¹ This motion was based on the law as it existed at that time under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)--that is, that the defendant must show a pattern of systematic exclusion of blacks as jurors in criminal trials within the circuit. Ford offered no proof of his contentions.

(a) The trial court denied the motion on October 10th, ten days before the trial began. In commenting upon this denial on the second day of the trial, the judge stated that he had seen "numerous or several cases" in which there were black defendants and the district attorney's office struck white prospective jurors and left prospective black jurors on the jury. "I have seen that happen here and in other counties in the circuit."

(b) After the jury had been selected and sworn in, the trial court afforded the defense an opportunity to make any necessary motions. None were made.

(c) In the direct appeal from Ford's conviction, this court found that he had failed to demonstrate a pattern of systematic exclusion of blacks from criminal juries in the circuit. Ford v. State, 255 Ga. 81, 83(1), 335 S.E.2d 567.

5. Under Griffith, it is now unquestioned that Ford may insist upon the Batson issue, notwithstanding that his conviction preceded the date of that opinion.

But nothing in Griffith would warrant the extension of relief upon grounds never raised at trial. Indeed, all that Griffith dictates is that objections made--at trial-- must be resolved under the Batson rule, whether or not they antedated the enunciation of that rule. ²

6. We have delineated a time period within which a Batson motion is timely.

(a) In State v. Sparks, 257 Ga. 97, 355 S.E.2d 658, we allowed as timely a Batson motion that was made shortly after the jurors had been sworn. We held that "hereafter any claim under Batson should be raised prior to the time the jurors selected to try the case are sworn." In Riley v. State, 257 Ga. 91, 94(3), 355 S.E.2d 66, we held as untimely a Batson motion that was made after the jury had been sworn and five witnesses had testified.

(b) Ford made no contemporaneous objection to the composition of the jury as selected. His pre-trial motion was not an objection to the jury as selected, but to an alleged pattern of systematic exclusion of black jurors. There was no objection made after the jury was sworn.

(c) Further, even if colloquy in the trial judge's chambers on the second day of trial might be interpreted as a Batson motion, it would not have been timely under Riley v. State, supra.

7. The determinative issue thus becomes whether our contemporaneous objection rule is a valid state procedural bar to Ford's Batson complaint.

In Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977), the United States Supreme Court held:

"A defendant has been accused of a serious crime, and [the trial] is the time and place for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the courtroom, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the results that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification."

8. We now conclude this matter as follows:

(a) Ford's motion under Swain, having been decided adversely to him on appeal, cannot be reviewed in this proceeding. Ford v. State, supra.

(b) While the circumstances of the jury selection may raise implications under Batson, and are not precluded from review under the authority of Griffith, Ford made no objection to the composition of the jury after it was selected and before the trial commenced.

(c) The rules of our state require that a defendant who questions the composition of his trial jury must make objection "prior to the time the jurors selected to try the case are sworn." Sparks, supra.

(d) The failure of Ford timely to object is a valid state procedural bar to any complaint he may have under Batson. Wainwright v. Sykes, supra.

9. Upon remand from the United States Supreme Court, we adhere to our initial judgment of affirmance.

Judgment affirmed upon remand.

All the Justices concur except GREGORY and HUNT, JJ. who dissent.

GREGORY, Justice, dissenting.

Prior to trial, Ford filed a motion asking the trial court "to restrict the Prosecution from using its peremptory challenges in a racially biased manner that would exclude members of the black race from serving on the jury." This motion was denied by the trial court. Subsequently, the prosecutor exercised nine of his ten peremptory challenges against blacks.

On direct appeal, this court, like the trial court, ruled on the issue without having the benefit of the pronouncement of the United States Supreme Court in the since-decided case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Ford v. State, 255 Ga. 81(1), 335 S.E.2d 567 (1985). Now, having held that Batson applies retroactively to cases, such as this one, that were tried prior to Batson but were still pending on direct appeal when Batson was decided, Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the United States Supreme Court has remanded the case to us for...