State v. Divers

• Decision Date: 22 June 2001
• Docket Number: No. 34,748-KA.,34,748-KA.
• Citation: 793 So.2d 308
• Parties: STATE of Louisiana, Appellant, v. James DIVERS, Appellee.
• Court: Court of Appeal of Louisiana — District of US

793 So.2d 308

STATE of Louisiana, Appellant, v. James DIVERS, Appellee.

No. 34,748-KA.

Court of Appeal of Louisiana, Second Circuit.

June 22, 2001.

Rehearing Denied August 16, 2001.

COPYRIGHT MATERIAL OMITTED

Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Madeleine M. Slaughter, Assistant District Attorney, Counsel for Appellant.

Charles L. Kincade, Monroe, R. Neal Walker, New Orleans, G. Benjamin Cohen, Counsel for Appellee.

Before STEWART, GASKINS and DREW, JJ.

STEWART, J.

The defendant, James Divers, was convicted of first degree murder, and sentenced to death. On September 5, 1996, the Louisiana Supreme Court reversed the conviction. On September 20, 1999, Divers filed a motion to quash the original 1988 indictment alleging "Historic, Systematic Discrimination Against African-Americans and Women in the Selection of Grand Jury Forepersons." The trial court granted the motion to quash the indictment. The state now appeals. For the reason set forth herein, the trial court's quashing of the indictment is affirmed.

FACTS

James Divers is one of the defendants in the "Moon Lake murders." On April 12, 1988, two men were found bound and shot at the Moon Lake Recreational Area. One was dead, and the other died shortly thereafter. A few days later, the defendant and his cousin, Everett English, were arrested for the crime and, on July 6, 1988, a grand jury indicted the defendant for first degree murder. The grand jury that indicted Divers was comprised of six whites and six blacks. The foreperson was a white male.

Prior to trial, Divers filed a motion to quash the grand jury indictment, alleging racial discrimination in the selection of the grand jury. The motion listed three claims:

1. That the method and manner of the selection of the grand jury venire does not insure the presence and participation of a fair cross-section of the community and dilutes the potential presence of black persons on the general venire.

2. That the Clerk of Court or the Jury Commission for Ouachita Parish violated defendant's constitutional rights, when the names of those persons chosen for inclusion on the venire were excluded because they had served on a grand or petit jury in this parish within the last two years.

That the Clerk and/or Jury Commission as a matter of general policy exclude from the general venire the names of individuals engaged in certain occupational classes, namely attorneys and physicians.

A hearing was held on the defendant's motion, and on November 17, 1988, in a written ruling, the trial court dismissed the defendant's motion to quash. The trial court's ruling also made several findings of fact, including facts as to the composition of the grand jury, and the population and racial composition of Ouachita Parish at the time of the indictment.

Thereafter the matter went to trial, and a jury found the defendant guilty. On September 12, 1991, the trial court sentenced Divers to death by lethal injection. The case was appealed directly to the Louisiana Supreme Court, which reversed the conviction. State v. Divers, 94-0756 (La.9/5/96), 681 So.2d 320.

The state proceeded on the original July 6, 1988 indictment. On September 20, 1999, Divers filed a motion to quash the indictment styled: "Motion to Quash Indictment Due to Historic, Systematic Discrimination Against African-Americans and Women in the Selection of Grand Jury Forepersons."

On February 25, 2000, the state filed "State's Answer to Defendant's Motion to Quash Indictment Filed 9/20/99" and a motion to dismiss the defendant's motion to quash. Divers filed a motion to recuse all of the district court judges for the motion to quash only, because all would be possible witnesses in the hearing. The state concurred, and the Honorable Graydon K. Kitchens, Jr., was appointed judge pro tem to hear the motion to quash.

The trial court granted the state's motion, ruling that the defendant would be precluded from going "back to the beginning to challenge the indictment or litigate other matters which are classified as pretrial motions, which relate to something that has previously been litigated or to something that the law has changed." To this ruling, the defendant sought writs to this court. State v. Divers, No. KW99-33,625 (La.App.2d Cir.1/20/20). This court reversed the trial court, and held that the defendant was not precluded from filing and litigating the issues in the earlier trial, particularly in light of the decision in Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998). The state sought reconsideration of this court's ruling, which was denied. State v. Divers, # KW00-33,795 (La.App.2d. Cir.2/28/00).

The hearing on the defendant's motion to quash the indictment was tried intermittently from February 29, 2000 to May 23, 2000. The trial court had limited the scope of the inquiry as to the selection of grand jury forepersons from 1968 to the 1988 grand jury which indicted the defendant. The trial court left open the question as to whether the composition and selection of grand jury forepersons since 1988 were admissible, and allowed the evidence of subsequent grand jury forepersons as a proffer.

The defendant called 30 witnesses, most of whom had been grand jury forepersons from 1968 to 1998. The evidence established that of the 41 grand juries empaneled from 1968 to 1988, all had African-Americans on the grand juries. The evidence further established that of the 41 grand jury forepersons picked, none were black.

The defendant called as an expert witness Joel Devine, who was tendered as an expert statistician. Devine testified that considering the racial composition of the grand jury venires from 1968 to 1988, the odds of no black being selected as a foreperson, in a random selection, ranged from 1 in 30,000 to over 1 in 10,000,000.

At the close of Diver's case, the trial court ruled that the defendant had proven a prima facie case of purposeful discrimination in the selection of the grand jury forepersons from 1968 to 1988. The trial court shifted the burden of proof to the state.

The state adduced ten witnesses, being the judges still living that appointed grand jury forepersons from 1968 to 1998. Six of the judges that selected grand jury forepersons from 1968 to 1988 were deceased at the time of this trial.

On August 29, 2000, the trial court issued a written ruling which found the following:

1. The trial court did not consider, in its ruling, the evidence of the selection of grand jury forepersons after the defendant's 1988 indictment.

2. The defendant had established a prima facie case of purposeful discrimination in the selection of the grand jury foreperson in his case, by showing:

A. Women and African-Americans are a distinct class, singled out for different treatment.

B. The degree of underrepresentation has occurred over a significant period of time. From 1968 to 1988 41 grand jury forepersons were selected in Ouachita Parish. Zero were African-American and 6 were women.

C. That the selection procedure for rand jury forepersons was susceptible to abuse.

3. The trial court accepted the findings of fact by Judge Ingram in his 1988 ruling, where Judge Ingram found that there were 68,558 registered voters in Ouachita Parish in 1988, and 74% were white and 25% were African-Americans. The Grand Jury Venire in March 1988 contained 26 males and 24 females, and 36(72%) were white and 14(28%) were African-American. The grand jury that indicted the defendant was composed of 5 males and seven females, 6 were white and 6 were African-American. The foreperson was white. (The issue in the 1988 hearing, discrimination in the selection of the grand jury venire, was not at issue in the 2000 hearing, and the August 29, 2000 ruling did not disturb the 1988 ruling that there was no finding of discrimination in the selection of the grand jury venire)

4. The trial court found that the defendant had failed to show a degree of underrepresentation of women to establish a prima facie case of purposeful discrimination in the selection of women as forepersons.

5. The trial court did find that the defendant had made the requisite showing of a prima facie case of discrimination against African-Americas in the selection of forepersons, in that zero out of forty-one selected was a clear showing of underrepresentation.

6. The trial court found that the presumption of racially discriminatory conduct may successfully be rebutted by testimony that establishes the use of racially neutral selection procedures. The trial court noted that ten past and present judges testified about their selection criteria and found that they used some "criteria that at best could be classified as general or vague." The trial court found that "there were no objective criteria or guidelines used by the Judges." The trial court found that the "State has failed to rebut the prima facie showing and resulting presumption of discrimination against African-Americans in the selection of forepersons in this case."

7. The trial court ordered that the July ;20, 1988 indictment against the defendant be quashed.

8. The trial court also informed the state that nothing in its ruling would prevent the state, in its discretion, from obtaining a superceding indictment to cure any defect in the previous indictment.

This appeal by the state followed.

DISCUSSION

The state advances several arguments in support of its contention that the trial court erred in granting the defendant's motion to quash. Particularly, the state argues that the 1988 ruling on the motion to quash bars the defendant from trying to again quash the indictment during the re-trial. The state asserts that the issue of the composition of the grand jury was addressed in 1988, and that the selection of the foreperson involves the composition of the grand jury. Secondly, the state established that there was no "purposeful discrimination" or "discriminatory intent" by the judges...