Sullivan v. State
| Decision Date | 08 May 1969 |
| Docket Number | No. 25147,25147 |
| Citation | 168 S.E.2d 133,225 Ga. 301 |
| Parties | Julious SULLIVAN v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
For the reasons stated in the opinion, the judgment of conviction and sentence thereon, and the denial of the motion for new trial, are affirmed.
Richard W. Watkins, Jr., Jackson, W. B. Mitchell, Forsyth, for appellant.
Edward E. McGarity, Dist. Atty., McDonough, Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.
This court affirmed the conviction of this appellant of murder (Sullivan v. State, 223 Ga. 643, 157 S.E.2d 247), which judgment was reversed by the United States Supreme Court (Sullivan v. Georgia, 390 U.S. 410, 88 S.Ct. 1113, 19 L.Ed.2d 1273), citing Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599. The defendant was re-indicted for murder, was retried, and was again convicted of murder and sentenced to death. The appeal is from that judgment and sentence.
1. The first enumeration of error alleges that the court erred in denying the defendant's motion to quash the indictment on the ground that he was denied a speedy trial in violation of the Federal and State Constitutions, in that 18 months elapsed between the commission of the crime and his trial, at which he was convicted, from which this appeal was taken.
Both the State and Federal Constitutions guarantee a speedy trial. United States Constitution, Amendment VI (Code § 1-806); Georgia Constitution, Art. I, Sec. I, Par. V (Code Ann. § 2-105). The Court of Appeals of this State in Harris v. State, 84 Ga.App. 1, 65 S.E.2d 267, applied this constitutional provision and ordered discharge of the prisoner. In United States ex rel. Von Cseh v. Fay, 2 Cir., 313 F.2d 620, 623, cited in the defendant's brief, it is stated that four factors are relevant to a consideration of whether denial of a speedy trial assumes due process proportions: 'the length of delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant,' with which we agree.
The defendant was first tried on March 15, 1967, within less than three months from the commission of the crime (December 24, 1966). He appealed this conviction to this court, which judgment was affirmed (October 5, 1967). He then appealed to the United States Supreme Court, which reversed this court on March 18, 1968. This court made the judgment of the United States Supreme Court its judgment on April 18, 1968. Sullivan v. State, 224 Ga. 249, 161 S.E.2d 265. More than thirteen months elapsed between the commission of the crime and the judgment of the United States Supreme Court, and more than nine months of that time was consumed by appeals made by the defendant.
After the United States Supreme Court's judgment was made the judgment of this court on April 18, 1968, the defendant's counsel requested that the judge grant him a leave of absence from the June, 1968, term of the court, which the judge granted. Counsel was under orders to report for military duty, which would prevent his trying the case in June. The defendant was then tried at the next term of the court in September, 1968.
It is obvious that any delay in trying the defendant was the result of appeals made by him and absence of his counsel. No purposeful delay on the part of the State is shown, nor any prejudice to the defendant. This ground is without merit.
2. Enumeration of error 2 alleges that due process and equal protection of law under the Fourteenth Amendment of the United States Constitution was denied to the defendant because the court refused to appoint a psychiatrist to examine him. The same question was raised and the same contentions were made and ruled upon adversely to the defendant in the previous trial of the case; and upon review of the question this court in Sullivan v. State, 223 Ga. 643(3), 157 S.E.2d 247, supra, held that there was no error in the refusal of the trial court to have a psychiatrist examine him. We re-affirm that ruling. The ground is without merit. The United States Supreme Court did not reverse any ruling of this court in the former case except those regarding the selection of jurors.
3. Enumeration of error 3 alleges failure of the court to quash the indictment and sustain the plea in abatement on the ground that grand and traverse juries were illegally drawn and composed and were not representative of a cross-section of the citizens of the county in violation of Art. I, Sec. I, Pars. III, V, and XXV of the Constitution of Georgia (Code Ann. §§ 2-103, 2-105, and 2-125), and the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution.
The record does not support that contention. After the reversal of the original conviction of this defendant by the United States Supreme Court (Sullivan v. Georgia, 390 U.S. 410, 88 S.Ct. 1113, 19 L.Ed.2d 1273, supra), on the ground that the jury was illegally composed, the jury commissioners compiled an entirely new jury list, grand and traverse. Where the previous list was made up from the tax digest, the new list was drawn from the voters' registration lists, as required by Georgia Code § 59-106, which section had twice been amended (Ga.L.1967, p. 251, and Ga.L.1968, p. 533) in an effort to meet the objections of the United States Supreme Court in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, and other cases.
The defendant has the burden of proving the existence of systematic exclusion. Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Swain v. Alabama, 380 U.S. 202, 226, 85 S.Ct. 824, 13 L.Ed.2d 759. However, once a prima facie case of racial exclusion is made, the burden shifts to the prosecution. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, supra.
We find no evidence of discrimination by the jury commissioners in the selection of the jurors. The commission was composed of a woman, as chairman, and two men, one of whom was a Negro. Each of them actively participated in the work, and testified that there was no discrimination against any one or any class in the selection of the jury. They made no effort to effect a certain percentage of representation of any segment of group in the county. Warren Bush, the Negro on the board, testified that there was no discrimination because of race; that no effort was made to put a certain percentage of whites or Negroes on the list.
A comparison of the facts as to compilation and composition of the jury lists in the Whitus case, supra, with this case reveals: (1) Male population over 21 years of age, in Whitus case, 42% Negro men; in defendant's case, 32.74% Negro men. (2) Percentage of Negroes comprising source from which jurors chosen, Whitus, tax digest, 27.1%; defendant, voters' list, 22%. (3) Negro jurors in Whitus, 9.3% grand jury venire, 7.8% petit jury venire; in defendant's case, 33% grand jury venire, 25% petit jury venire. (4) Negroes in defendant's case comprising the grand jury list, 22%, traverse jury list, 19%; unknown in Whitus. (5) Jury commissioners, in Whitus, all white; in defendant's case 2 white and 1 Negro. (6) Source of jurors, Whitus, tax digest, separated and identified as to race; defendant's case, voters' registration list, fully integrated, with no indication of race.
The uncontradicted evidence of no discrimination and the relative facts and figures above set forth lead to only one conclusion, that the grand and traverse jurors involved in this case were chosen indiscriminately by a fair and impartial board of jury commissioners without regard to color, creed, or race, in an effort to procure a jury list reasonably reflecting a cross-section of the population.
4. Enumeration of error 4 alleges that Code § 59-106, as amended (Ga.L.1967, p. 251; Ga.L.1968, p. 533), is...
To continue reading
Request your trial
-
Davenport v. State
...we did not address the sufficiency of the evidence. See, e.g., Lingo v. State , 226 Ga. 496, 175 S.E.2d 657 (1970), Sullivan v. State , 225 Ga. 301, 168 S.E.2d 133 (1969), judgment vacated in part by Sullivan v. Georgia , 408 U. S. 935, 92 S.Ct. 2854, 33 L.Ed.2d 749 (1972).In 1973, the Geor......
-
Reaves v. State
...the prejudice to the defendant and waiver by the defendant (Mays v. State, 229 Ga. 609(1), 193 S.E.2d 825 (1972); Sullivan v. State, 225 Ga. 301(1), 168 S.E.2d 133 (1969)), we agree with the trial court that the appellant was not denied his constitutional right to a speedy trial. This enume......
-
People v. Archerd
...v. United States (D.C.App., 1967) 233 A.2d 506, 510--512; United States v. Perez (7th Cir. 1968) 398 F.2d 658, 660; Sullivan v. State (1969) 225 Ga. 301, 168 S.E.2d 133, 135.) In People v. Hryciuk (1967) 36 Ill.2d 500, 224 N.E.2d 250 the court found that the state had all the evidence on a ......
-
Brown v. State
...Brookins v. State, 221 Ga. 181, 187, 144 S.E.2d 83, 88. And see Thacker v. State, 226 Ga. 170, 172, 173 S.E.2d 186; Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133; Burns v. State, 119 Ga.App. 678(1), 168 S.E.2d 2. 'The court did not err in excluding for cause veniremen who unmistakably expr......