Ramirez v. State, S02A1769.

• Decision Date: 13 January 2003
• Docket Number: No. S02A1769.,S02A1769.
• Citation: 575 S.E.2d 462,276 Ga. 158
• Parties: RAMIREZ v. The STATE.
• Court: Georgia Supreme Court

575 S.E.2d 462

276 Ga. 158

RAMIREZ v. The STATE.

No. S02A1769.

Supreme Court of Georgia.

January 13, 2003.

Reconsideration Denied February 7, 2003.

Thomas M. West, Dwight L. Thomas, Robert H. Citronberg, Atlanta, Keith E. Adams, Decatur, for appellant.

J. Tom Morgan, III, Dist. Atty., Mike McDaniel, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., for appellee. BENHAM, Justice.

Bautista Ramirez has been indicted on one count of malice murder, one count of felony murder, two counts of aggravated assault, two counts of aggravated battery, and one count of carrying a concealed weapon. The charges arise out of the fatal shooting of a Doraville police officer and the non-fatal shooting of a security guard at a nightclub. The trial court filed an order authorizing an application for interim review in this Court, and, exercising its power to order issues addressed that were not raised by the parties on application for interim review, this Court directed the parties to address the following two questions:

1. Whether the trial court erred in denying the defendant's motion to quash his indictment insofar as that motion addressed the alleged under-representation of "African-Americans" on the source list from which his grand jury was selected.

2. Whether application of the following portion of the Unified Appeal Procedure in conjunction with the remainder of the Unified Appeal Procedure is unlawful or improper either in general or in this case: "The [trial] court shall compare the percentages of each cognizable group in the county, according to the most recent official decennial census figures, with the percentages represented on the grand and traverse jury lists." U.A.P. II(C)(6).

See OCGA § 17-10-35.1(d) (authorizing interim review of issues not raised on application for interim review); U.A.P. II(H)(1) (same). In addition to these two issues, Ramirez has raised in this interim review the trial court's alleged error in denying his motion to quash the indictment on the ground of alleged under-representation of Hispanic persons and the trial court's alleged error in certifying the grand and traverse jury source lists pursuant to the Unified Appeal Procedure. For the reasons set forth below, we find no error.

Alleged Under-Representation of African-American Persons

1. (a) On November 15, 2000, Ramirez filed a motion to quash his indictment, alleging the under-representation of, inter alia, African-American persons. In subsequent briefs filed in the trial court, Ramirez focused his arguments on the alleged under-representation of Hispanic persons, however, we find that the issue of the alleged under-representation of African-American persons has been preserved for review by Ramirez's original motion.

In a hearing held on October 30, 2001, an expert witness testified briefly on Ramirez's behalf regarding the percentage of persons classified as "black" in federal census reports in 1990 and 2000 as compared to the percentage of persons classified as "black" on the source list from which Ramirez's grand jurors were selected in 2000. The expert testified that the percentage of "black" persons in the county had increased by 11.9 percentage points over the time period spanning 1990 to 2000. The expert concluded that the increase in the "black" population coupled with the county's forced balancing system (whereby the percentage of "black" persons on the grand jury source list was made to correspond exactly to the percentage of "black" persons reported in the 1990 Census) created a disparity of 11.9 percentage points between the percentage of "black" persons on the 2000 grand jury source list and the actual "black" population of DeKalb County in 2000.

(b) In order to make a prima facie claim of a violation of the equal protection clause of the Fourteenth Amendment, Ramirez was required to demonstrate that African-American persons were a recognizable, distinct class of persons, that they were under-represented over a significant period of time or under other circumstances which raised an inference of discrimination, and that the selection procedure employed was susceptible of abuse or was not racially neutral such that any presumption of discrimination raised by the statistics was supported. Castaneda v. Partida, 430 U.S. 482, 494(III), 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977) (prima facie case demonstrated by composition of grand juries over time); Alexander v. Louisiana, 405 U.S. 625, 628-632(I), 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (prima facie case demonstrated by highly improbable outcome of grand jury selection in particular case at hand); see also Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998) (holding that the defendant who was of one race had standing to raise an equal protection claim alleging the systematic exclusion from the grand jury of persons of another race). African-American persons are clearly a distinct class of persons for Fourteenth Amendment purposes, and the absolute disparity of 11.9 percentage points between their representation on the 2000 grand jury source list and their presence in DeKalb County's population in 2000 would be sufficiently high, if considered in a vacuum, to raise an inference of discrimination. See Morrow v. State, 272 Ga. 691(1), 532 S.E.2d 78 (2000); 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."). However, the statistical evidence should not be considered in a vacuum.

The evidence presented to the trial court clearly demonstrated that the jury commissioners had fixed the percentage of "black" persons on Ramirez's 2000 grand jury source list to the percentage of "black" persons in the county reported in the 1990 Census. This procedure was consistent with, and undoubtedly arose directly out of, this Court's directive in the Unified Appeal Procedure that trial courts must certify that each cognizable group is represented on grand and traverse jury source lists by a percentage that is within five percentage points of the group's percentage in the total population as measured by "the most recent official decennial census figures...." (Emphasis supplied). U.A.P. II(C)(6). Because the jury commissioners had obviously structured their system in compliance with the Unified Appeal Procedure, this Court, in its order granting Ramirez's application for interim review, focused the parties' attentions on the question of whether that rule was itself improper.

In Walraven v. State, 250 Ga. 401(1), 297 S.E.2d 278 (1982), this Court previously ordered compliance with the Unified Appeal Procedure's rule of using the most recent census as a benchmark, but the Court did not address whether doing so in that particular case would entail statistical variations of the magnitude presented in this case. In Morrow v. State, supra, 272 Ga. at 693-695, 532 S.E.2d 78, this Court also found no abuse of a trial court's discretion in making a factual finding that the most recent census report was more reliable than more recent population reports presented in that case that were mere estimates. Since granting the application for interim review in Ramirez's case, this Court has directly addressed the pivotal issue in Ramirez's case under similar facts in Smith v. State, 275 Ga. 715, 571 S.E.2d 740 (2002) (assuming, without deciding, the existence of an under-representation of 12.5 percentage points). We held there that a trial court did not err in finding no equal protection violation where a defendant was indicted in 2000 by a grand jury drawn from a source list constructed to conform to the statistics of the 1990 Census and where the source list was later shown upon the release of the 2000 Census to have represented a cognizable group by 12.5 fewer percentage points than the percentage of that group in the actual population at the time of the indictment. In doing so, this Court noted the comprehensiveness of decennial census reports and the need of jury commissions to have "a valid population benchmark" by which to guide and measure their efforts at including all cognizable groups in appropriate numbers. Id.

Because we find that the source list from which Ramirez's grand jury was drawn was constructed, in accordance with the Unified Appeal Procedure, specifically with the intent to equally represent the cognizable groups in DeKalb County as measured by the most comprehensive and objective source available at the time the list was constructed, and because the population movements in and out of DeKalb County were...