Morrow v. State

• Decision Date: 12 June 2000
• Docket Number: No. S00P0112.,S00P0112.
• Citation: 272 Ga. 691,532 S.E.2d 78
• Parties: MORROW v. The STATE.
• Court: Georgia Supreme Court

532 S.E.2d 78

272 Ga. 691

MORROW v. The STATE.

No. S00P0112.

Supreme Court of Georgia.

June 12, 2000.

Reconsideration Denied July 28, 2000.

William M. Brownell, Jr., Harold M. Walker, Jr., Gainesville, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Lisa A. Jones, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Karen N. Anderson, Assistant Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, for appellee. CARLEY, Justice.

Scotty Garnell Morrow killed Barbara Ann Young and Tonya Rochelle Woods and he was convicted by a jury of malice murder, felony murder, aggravated assault, aggravated battery, cruelty to a child, burglary, and possession of a firearm during the commission of a felony. The jury recommended a death sentence after finding beyond a reasonable doubt the following aggravating circumstances: that the murder of Ms.Young was outrageously vile, horrible or inhuman in that it involved torture and depravity of mind; that the murder of Ms. Woods was outrageously and wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, and an aggravated battery to Ms. Woods before her death; that the murder of Ms. Woods was committed while the defendant was engaged in the commission of the murder of Ms. Young and the aggravated battery of LaToya Precal Horne; that the murder of Ms. Young was committed while the defendant was engaged in the commission of the aggravated battery of Ms. Horne; and that the murders of Ms. Young and Ms. Woods were committed while the defendant was engaged in the commission of a burglary. OCGA § 17-10-30(b)(2), (7). Morrow appeals.¹

Pre-Trial Issues

1. Morrow claims that Hispanics were underrepresented in the composition of the 1994 grand jury pool, and the 1999 traverse jury pool in violation of the Sixth Amendment, the Fourteenth Amendment, OCGA § 15-12-40, and the Unified Appeal Procedure. To prevail on a Sixth Amendment jury pool composition challenge, Morrow must show: (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in jury pools is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364(II), 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Bowen v. Kemp, 769 F.2d 672, 684 (11th Cir.1985). To prevail on a Fourteenth Amendment challenge to the composition of a jury pool, Morrow must show: (1) the group is one that is a recognizable, distinct class; (2) the degree of underrepresentation, by comparing the proportion of the group in the total population to the proportion called to serve as jurors over a significant period of time; and (3) a selection procedure that is susceptible of abuse or is not racially neutral which supports a presumption of discrimination raised by the statistics. Castaneda v. Partida, 430 U.S. 482, 494(III), 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Bowen, supra. Generally speaking with regard to the second prong of both tests, an absolute disparity between the percentage of a group in the population and its percentage in the jury pool of less than 5% is almost always constitutional; an absolute disparity between 5 and 10% is usually constitutional; and an absolute disparity of over 10% is probably unconstitutional. See Cook v. State, 255 Ga. 565, 571(11), 340 S.E.2d 843 (1986) ("As a general proposition, absolute disparities under 10% usually are sufficient to satisfy constitutional requirements."). A violation of OCGA § 15-12-40 is proven by showing a wide absolute disparity between the percentage of the group in the population and its percentage in the jury pool. West v. State, 252 Ga. 156, 157(1), 313 S.E.2d 67 (1984) (17% absolute disparity for females in jury pool from females in county population violates OCGA § 15-12-40); Devier v. State, 250 Ga. 652(1), 300 S.E.2d 490 (1983) (36% absolute disparity for females in jury pool violates statute). The Unified Appeal Procedure states that there should be no imbalances for cognizable groups greater than 5%, UAP § E, but this Court has stated that the 5% rule is a prophylactic rule designed to ensure "to the extent possible that disparities would be kept well below the constitutional minimum." Parks v. State, 254 Ga. 403(6), 408, fn. 4, 330 S.E.2d 686 (1985).

The defendant has the burden of proving a prima facie case of constitutional error in the composition of the jury pool. Berryhill v. Zant, 858 F.2d 633, 638 (11th Cir.1988); Machetti v. Linahan, 679 F.2d 236, 241, fn. 6 (11th Cir.1982) (the standard for proving a prima facie jury pool composition violation is virtually identical under the Sixth and Fourteenth Amendment tests). With regard to the second prong of the Sixth and Fourteenth Amendment tests, the extent and effect of any alleged underrepresentation is a mixed question of fact and law. Berryhill, supra at 638, fn. 8. The degree of underrepresentation is a question of fact to be determined by the trial court sitting as fact-finder. Berryhill, supra; United States v. Esle, 743 F.2d 1465, 1472, fn. 12 (11th Cir. 1984). The sufficiency of the disparity, once its extent has been determined, to show a constitutional violation is a question of law. Berryhill, supra; Esle, supra. With mixed questions of fact and law, this Court accepts the trial court's findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts. Linares v. State, 266 Ga. 812, 813(2), 471 S.E.2d 208 (1996).

Morrow claimed that the official 1990 Census was not reliable in determining the percentage of Hispanics in Hall County in 1994 and 1999 because there had been a large influx of Hispanics into the county since 1990 and a significant undercount of Hispanics during the 1990 Census. Instead of using the 1990 Census, Morrow presented an expert who had conducted a test census in 1996 of the Census block in Hall County that had reported the highest number of Hispanics in 1990. Overall, there are 86 Census blocks in the county. Respondents in the door-to-door survey of the 359 households in that Census block were told that no names were needed and that the survey responses would be shared with the Hispanic community to benefit the entire community. Morrow's expert then determined that, based on the test census and published estimates like the Georgia County Guide, there were approximately 2.5 times the number of Hispanics in Hall County than reported in the 1990 Census. She estimated that Hispanics who were over 18 and, therefore, jury-eligible, comprised 14.1% of the total jury-eligible Hall County population and, when compared with the .8% of Hispanics she found on the grand jury list, this amounted to an absolute disparity of 13.3%. She also used the 1996 test census and similar documentary sources to estimate that the absolute disparity for Hispanics was 12.7% when comparing the 1999 traverse jury list with the total jury-eligible Hispanic population.

Although the trial court found persuasive evidence that Hall County Hispanics were a cognizable group, the trial court found that the second prong of the Sixth and Fourteenth Amendment tests was not met because Morrow's expert's estimate that jury-eligible Hispanics comprised approximately 2.5 times their numbers reported for Hall County in the 1990 Census was unreliable. The trial court was critical of the expert's test census because the respondents were told that the survey was intended to benefit the Hispanic community and this may have affected the responses. See Esle, supra at 1474-1475 (Dade Latin Market Survey used by defendant to estimate the number of Latinos in Dade County, Florida, was found to be unreliable because the survey was created by Spanish language radio stations to recruit sponsors and they therefore had an incentive to inflate the numbers). The trial court also noted that it was conducted in a 1/86th section of the county picked specifically for having the highest number of Hispanics with the results extrapolated to the entire county. The State also pointed out several errors Morrow's expert made in her supporting data and that she had assumed a constant growth rate for the entire county population. Accordingly, the trial court refused to adopt Morrow's expert's Hispanic population percentage instead of the official 1990 Census statistics and we find that this decision was not clearly erroneous. See Linares, supra; Esle, supra (the trial court is not required to accept the defendant's figures if unreliable, even if unrebutted by the government); Reynolds v. State, 200 Ga.App. 43, 44(2), 406 S.E.2d 553 (1991) (the weight to be given expert testimony, like that of any other witness, is to be determined by the trier of fact, and the trier of fact is not bound by expert testimony). See also UAP § E (jury certificate population numbers to be drawn from the "most recent decennial census"). It was not unreasonable for the trial court to refuse to credit Morrow's expert's Hispanic population estimates when Morrow's test census was based on a 1/86 section of the county picked for its high number of Hispanics and extrapolated to the county as a whole. It was also reasonable for the trial court to note that the 1990 Census was a federally-funded county-wide head count conducted by the U.S. Census Bureau with help from local Hispanics, including one of Morrow's Hispanic witnesses. Morrow attacks the ethnic percentages shown by the 1990 Census as being unreliable, but the 1990 Census was clearly more comprehensive than the 1996 survey of a single Census block. Since the trial court found Morrow's overall Hispanic population statistics to be unreliable, we need not address whether his jury-eligible population numbers are affected by evidence that less...