Lee v. State

• Citation: 683 So.2d 33
• Decision Date: 10 May 1996
• Docket Number: CR-94-1758
• Parties: Delester LEE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 33

683 So.2d 33

Delester LEE v. STATE.

CR-94-1758.

Court of Criminal Appeals of Alabama.

May 10, 1996.

Rehearing Denied June 21, 1996.

Certiorari Denied Oct. 25, 1996

Alabama Supreme Court 1951682.

Laura Grantham, Monroeville, and John Brock, Evergreen, for Appellant.

Jeff Sessions, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for Appellee.

PATTERSON, Judge.

Delester Lee appeals from his second conviction for the murder of Howard Stabler, and his sentence to life imprisonment. In Lee v. State, 631 So.2d 1059 (Ala.Cr.App.1993), this court reversed Lee's first conviction on this charge. In the instant appeal, Lee raises five issues for review.

I.

Lee contends, as in his prior appeal, that the trial court selected the grand jury foreperson in a racially discriminatory manner. We reversed his prior conviction on these grounds, holding that Lee presented unrebutted evidence regarding the three criteria set out in Johnson v. Puckett, 929 F.2d 1067 (5th Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991), as follows: 1) that Lee is a member of a distinct class (i.e., a black man), singled out for different treatment, 2) that over a significant period of time in Monroe County, the frequency with which black people were selected as grand jury forepersons was disproportionately low when compared to the percentage of those eligible who were black, and 3) that the procedure for selection of the grand jury foreperson in Monroe County was subject to abuse. Lee was indicted for capital murder by a different grand jury in Spring, 1994.

We consider Lee's challenge to the selection of this grand jury foreperson in light of the three factors in Johnson. We hold that on this appeal, Lee has failed show "the degree of underrepresentation [of blacks].... called to serve as foremen," and has, therefore, failed to meet the second prong set out in Johnson, supra at 1072.

In determining to what degree, if any, a class has been underrepresented with respect to the second prong in Johnson, we must consider what statistics are truly relevant to the inquiry. It is axiomatic that no court need consider irrelevant evidence. The facts underlying our court's previous opinions in Lee and Locke v. State, 631 So.2d 1062 (Ala.Cr.App.1993), presented such clear prima facie cases of discrimination, that it was not necessary at that time to draw fine lines of relevance regarding which statistics were probative of the issue of whether the grand jury foreperson selection process was racially discriminatory. ¹ In this case, however, there is no glaring prima facie case. Therefore, we must distinguish those figures which are in fact probative of this issue. We are persuaded by the concurring opinion in United States v. Sneed, 729 F.2d 1333 (11th Cir.1984), in which Judge Robert Vance wrote:

" '[D]efendants ... may challenge only improprieties affecting the particular grand jury which indicted them.' United States v. Bearden, 659 F.2d 590, 601 (5th Cir. Unit B 1981) (emphasis in original), cert denied sub nom. Northside Associates v. United States, 456 U.S. 936, 102 S.Ct. 1993, 72 L.Ed.2d 456 (1982). Thus to obtain relief from his conviction through an equal protection challenge to the selection of grand jury forepersons, a defendant must prove that unconstitutional discrimination affected the appointment of the foreperson serving on the grand jury that indicted him. See Rose v. Mitchell, 443 U.S. 545, 551, 99 S.Ct. 2993, 2997, 61 L.Ed.2d 739 (1979). Statistical analysis is simply a means of shouldering this burden, and the statistics employed must be tailored to that end. When the judges in a given unit do not select forepersons independently on the basis of individually established criteria, the decisions of all the group's members may fairly be considered together because there is nothing to distinguish the selection process of one from that of any other: the judges' decisions are, in essence, fungible. On the other hand, when a single judge makes foreperson appointments completely isolated from his colleagues and on the basis of separately developed criteria, the selections of other judges are simply irrelevant to the defendant's claim of discrimination. In the latter situation there is no connection between the decisions of the one and the decisions of the others that can serve as a basis for viewing the entity allegedly discriminating against the defendant as the group rather than the individual.... I would hold that when a judge appoints grand jury forepersons independently of his colleagues, a defendant who challenges his conviction on the grounds of unconstitutional discrimination in the selection of the foreperson of the grand jury that indicted him must demonstrate a pattern of discrimination by the empaneling judge."

Id., at 1337-38. We are convinced that this is the better rule. ² Having searched and found no authority to preclude us, we adopt the rule proposed by Judge Vance as the law in Alabama. ³

At the hearing on Lee's motion to quash the indictment, the trial judge who empaneled the grand jury and selected the grand jury foreperson testified that he sought to select grand jury forepersons who had "discernment." With this end in mind, his method was to consider the candidates' answers on voir dire, their reputations in the community, and their overall demeanors. He would listen to the district attorney's suggestions; however, he was not bound to accept any of those suggestions and sometimes rejected them. He further testified that he was unaware of his predecessor's method of selecting the grand jury foreperson. This testimony shows that this empaneling judge selects the grand jury foreperson from the eligible pool using a selection process entirely independent from his colleagues. Therefore, only this particular judge's pattern of grand jury foreperson selection is relevant to whether the foreperson of the grand jury that indicted Lee was selected by a racially discriminatory process.

The hearing on Lee's motion to quash the indictment showed that the grand jury's empaneling judge took office in 1989, and since then had selected seven black grand jury forepersons. This figure represents 40% of all grand jury forepersons selected by this judge (apparently, this judge has empaneled 16 grand juries since he took the bench in 1989). Lee has failed to provide any figures regarding the demographics of the population eligible for service as grand jury foreperson in 1994. A meaningful showing of statistical underrepresentation in the selection of the grand jury foreperson must be calculated using the percentage of those presumably eligible for jury duty who are members of the class at issue. ⁴ Cf. Wooten v. State, 361 So.2d 1192, 1194 (Ala.Cr.App.1978) (holding no prima facie case of discrimination in forming the jury venire where "[t]here [was] no legal evidence.... to even find a statistical disparity between the number of blacks and youths presumed eligible for jury duty and the number actually included in the jury roll." (emphasis added)); Harris v. State, 352 So.2d 460, 471 (Ala.Cr.App.1976) (quoting Singleton v. Estelle, 492 F.2d 671, 677 (5th Cir.1974) (" 'The threshold requirement for establishment of a prima facie case of racial discrimination in jury selection is a showing of marked disparity between the percentage of Negroes among persons putatively qualified to serve as jurors and the percentage of Negroes actually on the jury lists in the case in question.' ") (emphasis added)).

As of Lee's 1990 indictment, 30% of the Monroe County population eligible for jury duty was black. Again, 40% of the empaneling judge's grand jury forepersons have been black. If we were to assume no material demographic change between 1990 and 1994, then we would find that the empaneling judge's "independently established criteria" resulted in Lee's class being overrepresented by 25% in the selections of grand jury forepersons. It would follow that no prima facie case of discrimination had been shown. However, we cannot assume that the demographics of the eligible population have remained unchanged in the intervening years, and Lee has failed to provide the trial court with updated figures reflecting the percentage of those eligible for service who were black. Therefore, we cannot find that blacks have been underrepresented during the empaneling judge's term in office. Applying the new standard advocated by Judge Vance, we hold that Lee has failed to present a prima facie case that the empaneling judge discriminated on the basis of race in selecting the foreperson of the grand jury that indicted him in this case.

Moreover, even under the more liberal analysis that this court implemented in reviewing Lee's prior indictment, see Lee, supra, Lee has failed to present a prima facie case of discrimination. The new statistics reviewed above, combined with the older figures set out in Lee ⁵ indicate that from 1977 to 1994, eight black people served as grand jury foreperson in Monroe County, while as many as 44 grand jury forepersons were appointed in that county during that period. Thus, from 1977 to 1994, 18% of grand jury forepersons in Monroe County were black. If we were to consider as current, the 1990 figure that 30% of the people eligible for jury duty are black, then we would find that blacks were underrepresented by 40% in the selection of grand jury forepersons from 1977 to 1994.

When applying the rule of exclusion, courts have determined, on an ad hoc basis, what degree of statistical underrepresentation satisfies a prima facie case of discrimination. Compare Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977) (finding a prima facie case of discrimination, where Hispanics were underrepresented on the grand jury by 50.1%); Dixon v. Hopper, 407 F.Supp. 58 (M.D.Ga.1976) (finding a prima facie case of discrimination where females were underrepresented on the grand jury by 69.1% and...