Porter v. State

• Decision Date: 16 October 1963
• Docket Number: No. 31854,31854
• Citation: 160 So.2d 104
• Parties: Willie PORTER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 104

160 So.2d 104

Willie PORTER, Appellant, v. The STATE of Florida, Appellee.

No. 31854.

Supreme Court of Florida.

Oct. 16, 1963.

Rehearing Denied Jan. 17, 1964.

George Edward Travers, Cocoa Beach, for appellant.

Richard W. Ervin, Atty. Gen., George R. Georgieff and A. G. Spicola, Jr., Asst. Attys. Gen., for appellee.

O'CONNELL, Justice.

Willie Porter appeals from a death sentence entered after conviction of first degree murder committed in Martin County.

Appellant first contends that the trial court erred by refusing to grant his motion to quash the indictment of the grand jury.

In his motion to quash the indictment appellant alleged that there had been a systematic exclusion of Negroes from the grand jury that indicted him and this discrimination deprived him of equal protection of law as guaranteed by the Fourteenth Amendment of the Federal Constitution.

The trial court held a hearing on this motion to quash at which appellant's counsel testified as to results of an examination of the records of the supervisor of registration. This counsel also offered in evidence a certified copy of the jury list from which the grand jury was chosen.

Appellant's counsel testified that he had examined the records of the supervisor of registration and from these records he had determined that at the pertinent time there were 7608 registered voters in Martin County of which 740, or 10.8%, were Negroes.

The jury list placed in evidence contained the names of 1308 persons, of which only 16, or 1.2%, were Negroes.

He further testified no Negroes were selected for inclusion on the jury list from two precincts, although in one of these precincts there were 170 Negro registered voters, approximately one third of the total registered in that precinct, and that from two precincts made up entirely of Negro voters only seven Negroes were included on the jury list.

The state offered no evidence. However, it objected at every stage to the receipt of appellant's counsel's testimony on the ground that it was secondary evidence, arguing that the best evidence would be the testimony of the county officials responsible for jury selection. The appellant did not offer the testimony of any such officials.

In a well reasoned order the trial court denied the motion to quash.

We think the trial court was correct in doing so.

The appellant's argument to the trial court, and now to us, is that the figures and percentages above stated in themselves show a systematic exclusion of Negroes from the subject jury list. In effect he argues that had negroes not been systematically excluded more than 16 of the 740 Negro voters would have been placed on the jury list. He says that the disparity between the number of registered Negro voters, 740 or 10.8% of the total registered voters, and the number placed on the jury list, 16 or 1.2% of names on the jury list, in itself proves that discrimination was practiced.

It is noted here that the appellant does not maintain that there was any discrimination against Negroes in the selection from the jury list of the grand jury which indicted him or the petit jury which tried him. The evidence does not indicate whether Negroes served on either jury.

Further, we note that appellant does not argue or attempt to show that any discrimination had been practiced in previous years.

Nor does appellant contend that the applicable statutes in any way discriminate against Negroes. He could not successfully do so, for as this Court said in the earliest Florida case on the identical question now under discussion, Tarrance v. State, 1901, 43 Fla. 446, 30 So. 685; 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572, our statutes:

'* * * disqualify no person or class of persons from jury service because of race, color, or previous condition of servitude; nor do they authorize any discrimination on this account to be made by those whose duty it is to enforce the regulations prescribed for selecting, summoning, and impaneling. If, therefore, the defendants have been denied the rights claimed by them under the fourteenth amendment of the constitution of the United States, it has been done, not in obedience to the requirements of our jury laws * * * but by the improper conduct of those engaged in administering those laws.'

This statement is equally true today.

The question presented by appellant is not a new one either in this state or in the federal courts. As a result well defined rules of law have been developed which control the question. Because of the nature of the issue presented here and the facts introduced in evidence to support it, our decision does not require us to consider all of these rules.

It is well settled that discrimination in the selection of juries because of race, class or color is violative of the federal constitution. Cassell v. Texas, 1950, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839.

This Court has held that grand jury indictments should be quashed where such discrimination was shown to have been practiced. Montgomery v. State, 1908, 55 Fla. 97, 45 So. 879; Bonaparte v. State, 1913, 65 Fla. 287, 61 So. 633 and State v. Lewis, 1943, 152 Fla. 178, 11 So.2d 337. In other cases we recognized the invalidating effect of such discrimination, but found that it was not shown to have been practiced. Haynes v. State, 1916, 71 Fla. 585, 72 So. 180; Royals v. State, 1917, 73 Fla. 897, 75 So. 199, and Washington v. State, 1928, 95 Fla. 289, 116 So. 470.

There are decisions which hold that a showing of great disparity between the proportion of Negroes on a jury list and the number of that race in the total population may indicate discrimination. State v. Goree, 1962, 242 La. 886, 139 So.2d 531; United, States ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir., 1952). It would follow that, unless satisfactorily explained, a great disproportion in the number of Negroes qualified for jury service and the number included on a jury list might well be an indication of invalidating discrimination.

The appellant here bottoms his contention on this last theory. He has offered no direct showing that the selecting officials intentionally discriminated against Negroes in the preparation of the jury list. Nor did he attempt to shown that the system, method or standards employed by these officials were in themselves discriminatory. He relies solely on the results of the selection procedures as reflected in his statistics.

Our task here is to determine whether the evidence in this case shows sufficient disproportion or disparity to raise a presumption that discrimination was practiced.

As this Court said in the Tarrance case, supra, 30 So. at page 688:

'The presumption is that those charged with administering the laws have properly discharged their duty, and against any misconduct on their part, until the contrary is made to appear.'

This presumption places upon one claiming discrimination through arbitrary exclusion from jury service of a class, sex or race the burden of producing substantial evidence to support the charge. Hoyt v. State of Florida, 1961, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118. In the absence of a showing to the contrary it will be presumed that the selecting officials compiled the jury list in a fair effort to select the best qualified persons without discrimination because of race or color. Discrimination will not be presumed. State v. Gill, 1937, 186 La. 339, 172 So. 412, cert. den. 301 U.S. 685, 57 S.Ct. 792, 81 L.Ed. 1343; Montgomery v. State, 1908, 55 Fla. 97, 45 So. 879; Tarrance v. State of Florida, supra.

In this case appellant has not met the burden of overcoming the presumption that the selecting officials proceeded properly.

Assuming for the purpose of argument only that the statistics and figures testified to by appellant's counsel would be adequate to show such a great disportion in Negroes qualified for jury service and the number included on the jury list, i. e. 10.8% as opposed to 1.2%, the figures used to arrive at these percentages are admitted by appellant's counsel not to be accurage or reliable.

As pointed out by the state, the evidence presented by appellant does not show how many of the 740 Negroes who were registered voters were women and how many of these women had made themselves subject to call for jury service by registering for such service pursuant to Sec. 40.01(1), F.S.A.

Under this statute, recently approved by the United States Supreme Court in the Hoyt case, supra, women cannot be selected for jury service, even though registered to vote, unless they volunteer by registering with the clerk of the circuit court. The number of the Negro voters who are women and who are not registered for jury service could make a great difference in the percentages relied upon by the appellant.

It cannot be assumed that there are not many of the registered Negro voters who are of good moral character, sound judgment and intelligence, mentally and physically sound, and otherwise qualified as jurors under the applicable statute. Hill v. Texas, 1942, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. Nor is it enough that the selecting officials rely on the fact that they knew no Negroes who met the statutory qualifications for jurors. Hill v. Texas, supra.

By the same token it cannot be assumed that all of the 740 Negroes were qualified as jurors; that among the 740 there were no Negro women who had not volunteered for jury service; that there were no Negroes who were not qualified under the statute or who were exempt from call for jury service under the applicalb estatutes.

Thus, we are driven to the conclusion that the evidence...