State v. Towns

• Decision Date: 21 October 2019
• Docket Number: S19A0557
• Citation: 834 S.E.2d 839,307 Ga. 351
• Court: Georgia Supreme Court
• Parties: The STATE v. TOWNS.

307 Ga. 351

834 S.E.2d 839

The STATE

v.TOWNS.

S19A0557

Supreme Court of Georgia.

Decided: October 21, 2019

Timothy Grady Vaughn, District Attorney, Keely Kight Pitts, A.D.A., Oconee Judicial Circuit District Attorney's Office, P.O. Box 1027, Eastman, Georgia 31023, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellant.

Franklin J. Hogue, James Travis Griffin, Hogue Hogue Fitzgerald & Griffin, LLP, P.O. Box 1795, Macon, Georgia 31201, Gabrielle Amber Pittman, Office of the Georgia Capital Defender, Middle Georgia Regional Office, P.O. Box 18122, Macon, Georgia 31209, Nathanial Lane Studelska, Metro Capital Defender Office, 104 Marietta St., NW, Suite 630, Atlanta, Georgia 30303, for Appellee.

Blackwell, Justice.

On March 16, 2015, a Telfair County grand jury indicted Ronnie Adrian Towns, charging him with murder and armed robbery. Two years later, Towns filed a motion to dismiss the indictment, alleging that the grand jury was unlawfully constituted because some of the grand jurors were not selected randomly. Following an evidentiary hearing, the trial court agreed that two of the grand jurors were not selected randomly, and it dismissed the indictment. The State appeals,¹ and we affirm.²

1. The record shows that 50 prospective jurors were summoned to appear at 8:50 a.m. on March 16 for service on the grand jury. Fewer than 16 prospective grand jurors, however, appeared on time and ready to serve. Half of the summoned jurors had been excused or had been given deferrals. The others simply did not show up. Because the presence of 16 jurors is essential to empanel a grand jury, see OCGA § 15-12-61 (a), the presiding judge directed the sheriff to attempt to locate the jurors who had failed to appear. Unsure whether the efforts of the sheriff would prove successful, the presiding judge also directed the clerk to supplement the number of prospective grand jurors with persons who had been summoned to appear for service as petit jurors, a procedure that is authorized by OCGA § 15-12-66.1.

One hundred and fifty prospective jurors had been summoned to appear on the following day for service as petit jurors. With the assistance of her chief deputy, the clerk examined the list of prospective petit jurors, identified four possible candidates for service on the grand jury, and reached out to those four prospective petit jurors. Two were unavailable to report on March 16. But the other two prospective petit jurors—T.S. and B.W.—were available and agreed to report immediately for service on the grand jury.

By the time T.S. and B.W. reported, several of those summoned for service on the grand jury who initially failed to report had appeared, on their own or at the behest of the sheriff. Having secured the attendance of 23 prospective grand jurors—21 jurors originally summoned for service on the grand jury, plus T.S. and B.W.—the trial court empaneled the grand jury on March 16. T.S. was chosen as the foreperson. That same day, 22 of the grand jurors—including both T.S. and B.W.—heard the evidence against Towns, and the grand jury returned a true bill of indictment.³

Towns filed a motion to dismiss the indictment, alleging that T.S. and B.W. were not chosen at random to serve on the grand jury. The trial court conducted an evidentiary hearing in August 2018, at which the clerk and chief deputy clerk both testified. The clerk explained that, when asked to select some persons summoned for service as petit jurors to supplement the number of persons available to serve on the grand jury, she based her selections on her assessments of whether she already had the information necessary to readily make contact with particular prospective jurors and whether the prospective jurors likely would be available to report immediately. Those assessments were predicated on the personal knowledge of the clerk and her staff. T.S. was known to the chief deputy clerk because he had appeared at the courthouse on the morning of March 16 to seek a deferral of his service as a petit juror, telling the chief deputy clerk that he had a conflict on March 17. B.W., on the other hand, was previously known to the clerk as a local businessman. The clerk knew how to contact both T.S. and B.W., and based on her knowledge of their circumstances, she believed that both might be available to report immediately for service on the grand jury.

Following the hearing, the trial court found that neither T.S. nor B.W. was chosen at random to serve on the grand jury:

While the Clerk of Court did not have any nefarious intent in selecting [T.S.] and [B.W.] ... to serve on the grand jury, her reasoning of selecting those individuals that she knew, could contact quickly, and who were most likely available to serve[ ] did have the effect of destroying the randomness of the grand jury. While both [T.S.] and [B.W.] were randomly selected from the master jury list for inclusion on the traverse jury list, they were not randomly selected to serve on the grand jury. The Clerk of Court chose [T.S.] and [B.W.] purposefully and not at random ....

Based on these findings, the trial court granted the motion to dismiss the indictment, and the State appeals.

2. As we noted earlier, OCGA § 15-12-66.1 authorizes a court to select persons who have been summoned for service as petit jurors to supplement the number of persons summoned to appear for service on the grand jury when necessary to secure the attendance of enough jurors to empanel a grand jury. Section 15-12-66.1 requires, however, that the petit jurors selected to serve on the grand jury be chosen randomly :

When from challenge or from any other cause there are not a sufficient number of persons in attendance to complete the empaneling of grand jurors, the presiding judge shall order the clerk to choose at random from the names of persons summoned as trial jurors a sufficient number of prospective grand jurors necessary to complete the grand jury.

OCGA § 15-12-66.1 (emphasis added). The State argues that T.S. and B.W. were selected "at random." The trial court disagreed, and so do we.

Like most words, "random" is a word that can vary somewhat in meaning when used in different contexts. When used in a colloquial sense, "random" ordinarily denotes the absence of any "plan, purpose or pattern." United States v. Kotrlik, 465 F.2d 976, 977 (9th Cir. 1972) (addressing "random" selection of Selective Service registrants for military service).⁴ But when "random" is used in a strict statistical sense, it commonly is understood to refer to the results of a selection process in which each candidate for selection has an equal probability of being chosen. See Smirnov v. Clinton, 806 F.Supp.2d 1, 15 (D.D.C. 2011) (in context of statute requiring random selection of immigration visa lottery winners, "random" means "governed by or involving equal chances for each of the actual or hypothetical members of a population").⁵

Even if "random" is used only in a more colloquial sense in OCGA § 15-12-66.1 —that is, even if the statute does not demand a selection process in which each petit juror has a perfectly equal chance of being chosen to serve on the grand jury, cf. United States v. Butts, 514 F.Supp. 1225, 1234 (M.D. Fla. 1981) (concerning random selection of jurors)—the provision that petit jurors must be chosen "at random" for the grand jury means at the very least that the clerk must employ a selection process that produces choices that are substantially unpredictable and not meaningfully susceptible to the conscious influence of the clerk or other court personnel.

In this case, it is true that the persons summoned for service as petit jurors were selected at random from the master jury list. But in selecting T.S. and B.W. from that random list to serve on the grand jury, the clerk relied on her personal knowledge of the prospective petit jurors, her own assessment of the extent to which she had the information necessary to contact them, and her estimate of the likelihood that they would be available to report immediately. Those selections were not "random" in any sense of the word.⁶ The trial court was right to conclude that T.S. and B.W. were not "cho[sen] at random" for service on the grand jury and were not, therefore, selected as required by OCGA § 15-12-66.1.⁷

3. A violation of an "essential and substantial" provision of the statutes governing the selection of juries vitiates the array, and with respect to an irregular grand jury, the remedy for such a violation is the dismissal of an indictment returned by the grand jury. See Harper v. State, 283 Ga. 102, 103 (1), 657 S.E.2d 213 (2008). Although the State does not dispute that the randomness requirement of OCGA § 15-12-66.1 is an "essential and substantial" provision,⁸ the dissent does, and so, we will consider whether the randomness requirement is "essential and substantial." To begin, we note that the dissent fails to articulate a meaningful standard by which "essential and substantial" provisions of the jury selection statutes may be differentiated from those provisions that are neither essential nor substantial. This shortcoming is understandable, considering that this Court never before has attempted to articulate a standard that clearly marks the line between the provisions of jury selection statutes that are "essential and substantial" and those that are not. But if "essential and substantial" has any meaning—and it must have meaning, inasmuch as it is the test that we have applied consistently for more than 100 years, see Pollard v. State, 148 Ga. 447, 453, 96 S.E. 997 (1918) —there must be a line. In the absence of an articulated standard to mark the line, the best way to find the line is an examination of how we have applied the "essential and substantial" test in prior cases, especially cases like this one that...