Hudson v. State, 75397

• Decision Date: 11 January 1988
• Docket Number: No. 75397,75397
• Citation: 185 Ga.App. 508,364 S.E.2d 635
• Parties: HUDSON v. The STATE.
• Court: Georgia Court of Appeals

Page 635

364 S.E.2d 635

185 Ga.App. 508

HUDSON v. The STATE.

No. 75397.

Court of Appeals of Georgia.

Jan. 11, 1988.

Lillian L. Neal, for appellant.

Robert E. Keller, Dist. Atty., Albert B. Collier, Asst. Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

Appellant, Stephen George Hudson, appeals his conviction for trafficking in cocaine. Held:

1. Appellant's first enumerated error is that the trial court erred in failing to grant the motion for a "new jury" based on the fact that there were no blacks on the panels for which the jurors were selected. At trial appellant's counsel objected to the makeup of the county's jury list and made an oral motion for a continuance to obtain a new jury, as the jury panel had no blacks on it and the appellant was black. This form of challenge of the jury array has been found sufficient to preserve the issue for appeal. See Mincey v. State, 180 Ga.App. 263, 349 S.E.2d 1. Appellant did not challenge the "method" used to select the jury, but did reserve with consent of the trial judge the right to subsequently insert into the trial record statistical information concerning the racial demographics of the county. Although both the appellant and the appellee have referred to statistical data concerning county racial demographics in their briefs, no such information has been inserted into the record in any acceptable form. We have consistently warned counsel that this court cannot consider factual representations contained in appellate briefs when such evidence does not appear on the record. See Coweta Bonding Co. v. Carter, 230 Ga. 585(1), 198 S.E.2d 281; Konscol v. Konscol, 151 Ga.App. 696(1), 261 S.E.2d 438. We see no reason to depart from this sound rule.

Accordingly, this court is left with the question of whether the mere fact that a jury panel contains no black members when the accused is black will, standing alone, support a challenge to the array and warrant the granting of a motion for a new jury. The answer is no. A defendant is entitled to a panel of qualified jurors, not a panel of preferred jurors. See Smith v. State, 245 Ga. 205, 208(5), 264 S.E.2d 15. It is presumed that public officials perform their duties lawfully, and in good faith (York v. Miller, 168 Ga.App. 849, 310 S.E.2d 577); accordingly, it is initially presumed that a jury is selected in accordance with constitutional and statutory requirements. Once, however, the defendant establishes a prima facie case of racial discrimination in jury selection the burden of going forward shifts to the prosecution to explain the State's conduct and to demonstrate that racially neutral criteria, in fact, prompted the challenged conduct. See generally, Gamble v. State, 257 Ga. 325, 357 S.E.2d 792. The requirements for establishing a prima facie case of jury discrimination are found in numerous reported cases. See generally Bowen v. State, 244 Ga. 495, 500, 260 S.E.2d 855; Barrow v. State, 239 Ga. 162(2), 236 S.E.2d 257. Appellant has failed to meet this criteria and has not established a prima facie case of racial discrimination in the makeup of...