Mitchell v. State, 25725
| Decision Date | 28 May 1970 |
| Docket Number | No. 25725,25725 |
| Citation | 226 Ga. 450,175 S.E.2d 545 |
| Parties | Calvin MITCHELL v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. It was not error to deny the defendant's motion to quash the indictment, and his challenge to the array of jurors, on the ground of racial discrimination in the selection of the grand jury indicting him, and the jury trying him.
2. The circumstances attending the arrest of the defendant justified the belief of the officers that there would likely be a failure of justice if they waited to obtain a warrant, and the trial judge properly denied the motion to suppress the evidence obtained at the time of the defendant's arrest without a warrant.
3. The trial court did not err in allowing the prosecuting attorney to offer the testimony of a witness whose name did not appear on the list furnished to the defendant, since he stated in his place to the court that this witness on the day before had volunteered information that he did not know of before that time.
4. It was not error for the district attorney to argue to the jury that the defendant had not 'told' them certain matters related to the evidence.
5. No ruling will be made on a question not made by the enumeration of errors.
6. Assignments of error not argued orally or by brief will be considered abandoned.
Solms, Gannam, Head, & Buchsbaum, Aaron L. Buchsbaum, Savannah, for appellant.
Andrew J. Ryan, Jr., Dist. Atty., Tom A. Edenfield, Savannah, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Wade V. Mallard, Jr., Atlanta, for appellee.
Calvin Mitchell, the appellant, was indicted and tried for kidnapping, robbery, and rape. He was convicted of all three offenses, and was sentenced to 20 years on the charge of robbery, 7 years on the charge of kidnapping, to be served consecutively, and life imprisonment for the rape offense.
He filed a motion for new trial on the general grounds and five special grounds, which was denied; and from that judgment he appealed. The denial of the motion for new trial is enumerated as error, and several grounds of the motion for new trial are specifically enumerated as error.
1. The defendant's second and fifth enumerations of error were the denial of his motion to quash the indictment and the overruling of his challenge to the array of jurors, on the ground that he is a member of the Negro race and that members of his race were systematically, unlawfully, and unconstitutionally discriminated against in the selection of the juries indicting and trying him.
The defendant was indicted in January, 1967, by the December, 1966, grand jury of Chatham County, and this list was selected from the tax digests, in accordance with the law at that time. He was tried in 1967 by a jury drawn from a list compiled after the passage of the law requiring that jurors be selected from the voters' list. The parties stipulated that the 1960 census showed that the population of the county consisted of 68% whites and 32% Negroes; of the 1966 grand jury venire there were 816 whites and 87 Negroes; and on the 1967 jury venire there were 6,264 whites and 854 Negroes.
The defendant contends that the disproportionate percentages of Negroes and whites, selected from segregated tax digests, as to the 1966 grand jury, and from an old list, revised by, and supplemented from, the voters' list, as to the 1967 petit jury, constituted a prima facie case of purposeful discrimination which was not rebutted by the State, citing Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; and Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25.
There was extensive evidence as to how the jury lists were selected. The jury commissioners testified that they considered the name of each person on the tax digests, as to the 1966 jury, and on the voters' list, as to the 1967 jury. They used the city directory, the telephone book, questionnaries to prospective jurors, and personal knowledge of the commissioners. They selected what they thought to be the upright and intelligent citizens without any percentage factor of racial groups in mind. The jury commissioners were selected to represent various ethnic and economic groups of the county. One of the six commissioners was a member of the Negro race. The other commissioners relied mainly on him for information as to the qualifications of members of his race, and submitted to him for his opinion names of Negroes, whom they considered qualified. This Negro member testified that he had made an effort to get more members of the Negro race on the jury lists and succeeded in getting a substantial increase, and that he had the co-operation of the other members of the board in this effort.
The evidence was sufficient to overcome the prima facie case of purposeful discrimination in the selection of the grand jury and the motion to quash the indictment was properly denied. The evidence in regard to the 1967 petit jury list did not show any purposeful discrimination. Compare Lingo v. State, 224 Ga. 333, 162 S.E.2d 1; Thacker v. State, 226 Ga. 170, 173 S.E.2d 186.
2. Enumeration of error 4 is on the court's denial of the defendant's motion to suppress evidence seized pursuant to his arrest without a warrant, in violation of Code § 27-207. If the arrest were illegal, the evidence seized ancillary to that arrest was not admissible in evidence. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.
Code § 27-207 provides: 'An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, of the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant.' The phrase 'likely to be a failure of justice' means 'probable ground for believing that there will be a failure of justice.' Giddens v. State, 152 Ga. 195, 199, 108 S.E. 788, 790.
We are of the opinion that the facts support the conclusion that an arrest without a warrant was proper, for the reason that there was likely to be a failure of justice for want of an officer to issue a warrant. Those facts are as follows: The victim's husband, who was a truck driver, at about 12:30 a.m. on December 7, 1966, called his wife to drive to his place of employment and get him, which was their usual custom. On her way to get her husband, she stopped at a red light. The defendant rushed from the curb, jumped in the car, placed a black-looking instrument which she thought was a pistol, in her side, and ordered her to drive as he directed. They came to a dead-end road, where he forcibly and against her will raped her. She then drove to the place designated by her husband, picked him up, and reported the rape to him, who in turn reported it to the police and directed them to the place of the crime. The officers saw footprints leaving the scene. The tracks showed the mark of an unusual and distinctive shoe sole. They followed the tracks to a house. They knocked at a door, but did not find the person wearing those shoes, but the man there told them there was a person in the room across the way. The door to that room was partly opened. They threw the flash light in the room, and saw a shoe with a sole which they recognized as being one of those making the tracks ...
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Jones v. State
...at the time the witness list was furnished to appellants, the provisions of Code Ann. § 27-1403 were not violated. Mitchell v. State, 226 Ga. 450, 175 S.E.2d 545, cert. denied, 400 U.S. 1024, 91 S.Ct. 585, 27 L.Ed.2d The testimony of this witness was further objected to on the ground that i......
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Marlow v. State, 57851
...of his constitutional right to remain silent. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Mitchell v. State, 226 Ga. 450, 455(2), 175 S.E.2d 545 (1970). See also Code Ann. § 38-415. It is also error for the court to deny a defendant's request for a charge that his fa......
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Bryant v. State
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Bonaparte v. Smith, Civ. A. No. 2724.
...over 21 years of age and 68% whites. 4 A similar method of selection of a Chatham County grand jury was upheld in Mitchell v. State, 226 Ga. 450, 175 S.E.2d 545 (1970); cert. den. 400 U.S. 1024, 91 S.Ct. 585, 27 L.Ed.2d 637. In Mitchell the defendant was indicted by a grand jury chosen from......