Locke v. State, CR-91-736

• Decision Date: 07 May 1993
• Docket Number: CR-91-736
• Citation: 631 So.2d 1062
• Parties: Willie Floyd LOCKE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1062

631 So.2d 1062

Willie Floyd LOCKE v. STATE.

CR-91-736.

Court of Criminal Appeals of Alabama.

May 7, 1993.

Rehearing Denied July 9, 1993.

Certiorari Quashed Feb. 4, 1994

Alabama Supreme Court 1921588.

Windell C. Owens, Jack B. Weaver and W. Robert McMillan, Monroeville, for appellant.

James H. Evans, Atty. Gen., and Beth Hughes, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Willie Floyd Locke, was convicted of murder, a violation of § 13A-6-2, Code of Alabama 1975. He was sentenced to life in prison.

The appellant argues on appeal that the trial court erred in denying his motion to quash the indictment. Specifically, he contends that Monroe County discriminates against blacks in the selection of the foremen for the grand jury. This very issue, concerning the same county, was recently addressed by this court in Lee v. State, 631 So.2d 1059 (Ala.Cr.App.1993). (Montiel, J., dissenting with opinion). Judge Bowen, writing for the majority, stated:

"The appellant was indicted by a Monroe County grand jury in January 1990. It is undisputed that for the grand juries in Monroe County from 1977 to 1991, only one black (in 1985) and one female (in 1988) served as foreman. There was evidence that from April 1985 through March 1991, 12 different persons were appointed foreman of the grand jury."

In this case, the trial court took judicial notice of the facts presented in Lee. The statistics as quoted above in Lee also apply to this case. The only difference between the two is that the appellant in this case was indicted by the March 1991 grand jury of Monroe County; Lee was indicted by the January 1990 grand jury. The foreman of the grand jury that indicted the appellant was a white male.

"In Johnson v. Puckett, 929 F.2d 1067, 1071-72 (5th Cir.), cert. denied, [---] U.S. [----], 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 member, 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...