Lee v. State

• Decision Date: 05 March 1993
• Citation: 631 So.2d 1059
• Court: Alabama Court of Criminal Appeals
• Parties: Delester LEE v. STATE. CR 91-294.

Page 1059

631 So.2d 1059

Delester LEE v. STATE.

CR 91-294.

Court of Criminal Appeals of Alabama.

March 5, 1993.

Rehearing Denied May 7, 1993.

Certiorari Quashed Feb. 4, 1994

Alabama Supreme Court 1921239.

Melissa A. Posey, Mobile, for appellant.

James H. Evans, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Delester Lee, the appellant, was convicted for the capital murder/robbery of Harold Stabler. He was sentenced to life imprisonment without the possibility of parole in accordance with the recommendation of the jury. We address only one issue raised by the appellant on this appeal from that conviction.

The appellant argues that the trial court committed error in denying his motions to quash the indictment based on alleged racial discrimination in the selection of the foremen of the grand jury.

The appellant was indicted by a Monroe County grand jury in January 1990. It is undisputed that for the grand juries in Monroe County ¹ from 1977 to 1991, only one black (in 1985) and one female (in 1988) served as foreman. CR. 548, R. 394. There was evidence that from April 1985 through March 1991, 12 different persons were appointed foreman of the grand jury. R. 548. That same document shows that C.W. Boone (a white male and the foreman of the jury that indicted the appellant) was appointed twice--in September of 1989 and in January of 1990. CR. 548 The appellant also introduced uncontradicted evidence that the foreman is selected by the circuit judge "with the advice and consent of the District Attorney." R. 418.

In Johnson v. Puckett, 929 F.2d 1067, 1071-72 (5th Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991), the Fifth Circuit Court of Appeals held that the petitioner had proven that the grand jury foreman selection process in the county of his conviction violated his right to equal protection where he established 1) that blacks comprised a distinct class capable of being singled out; 2) that the grand jury foreman selection process, in which the circuit judge appointed the foreman on the basis of his own subjective criteria, was subject to abuse; and 3) that in the 20 years prior to the petitioner's conviction, 42 white foremen had been chosen while no black had been chosen to serve as foreman, even though the population of the county was 43% black.

"The injury to equal protection caused by racial discrimination in the selection of members of a grand jury 'is not limited to the defendant--there is injury to the jury system, to the law as an institution, to the community at large, and to the processes of our courts.' This injury to society as a whole, as well as the stigmatization and prejudice directed against a distinct group, exists regardless of the grand jury foreman's authority or of the composition of the grand jury as a fair cross-section of the community, or their effect on the fundamental fairness of the judicial process. The due process analysis contained in Hobby [v. United States, 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984), is simply inapplicable to a claim of violation of equal protection through the discriminatory selection process of a grand jury foreman.

"....

"To establish a prima facie case of discrimination in the selection of a grand jury foreman, a petitioner must demonstrate: 1) that the group against whom discrimination is asserted is a distinct class, singled out for different treatment; 2) the degree of underrepresentation by comparing the proportion of the group in the total population to the proportion called to serve as foremen over a significant period of time; and 3) that the selection procedure is susceptible to abuse or is not racially neutral. This prima facie case may then be rebutted by evidence that objective, racially neutral criteria were used in the selection process.

"Johnson has unquestionably satisfied the first and third prongs of this test. Blacks comprise a distinct class capable of being singled out for different treatment under the laws. The grand-jury-foreman-selection process in Panola County, [Mississippi,] in which the circuit judge appoints the foreman on the basis of his own subjective criteria after having access to data concerning the race and sex of the grand jury panel members, is subject to abuse.

"....

"... The plain facts are that between 1959 and 1975, 32 grand jury foremen were appointed in Panola County, and not one of them was black. The discrimination against black foremen continued through 1979, by which time 42 white foreman had been chosen. While 'statistics are not, of course, the whole answer, ... nothing is as emphatic as zero.' Johnson has demonstrated underrepresentation of blacks as grand jury foremen in Panola County over a significant period of time.

"We therefore find that Johnson has established a prima facie case of racial discrimination in the selection process of the grand jury foreman in Panola County. We also find that the State failed to rebut this prima facie case. The Supreme Court has held that 'affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion.' This court has required that testimony rebutting a prima facie case of discrimination establish the use of objective, racially neutral selection procedures. The rebuttal testimony offered by the State, by contrast, merely indicates that the judges in Panola County never stated or indicated to the circuit clerk that they selected grand jury foremen based on their race; the testimony neither denies the use of racial criteria nor advances any other objective non-discriminatory criteria used by the judges. This evidence is inadequate to rebut the presumption of discrimination established by petitioner's prima facie case.

"We conclude that the grand jury selection process in Panola County violated Johnson's right to equal protection under the Fourteenth Amendment. In accordance with the mandates of Rose v. Mitchell, [443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979),] and Guice v. Fortenberry, [661 F.2d 496, 499 (5th Cir.1981) (en banc),] his conviction must be vacated. The State may choose to reindict him for the same crime.

Johnson v. Puckett, 929 F.2d at 1071-73 (footnotes omitted).

The prosecutor raised the question of "what relevance is it whether the foreman was black or white in terms of discrimination because the Court is well aware of the foreperson's role in the grand jury process, and that...