Thacker v. State, 25494

• Court: Supreme Court of Georgia
• Writing for the Court: PER CURIAM; All the Justices concur except FELTON; FELTON
• Citation: 226 Ga. 170,173 S.E.2d 186
• Parties: James C. THACKER v. The STATE.
• Docket Number: No. 25494,25494
• Decision Date: 13 February 1970

Page 186

173 S.E.2d 186 226 Ga. 170 James C. THACKER
v.
The STATE. No. 25494. Supreme Court of Georgia. Feb. 13, 1970.
Rehearing Denied March 5, 1970.

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Syllabus by the Court

1. 'Ga.Code Ann., Title 59' is not subject to the specific constitutional attacks made thereon, nor is it shown to have been unconstitutionally applied in connection with this case, therefore,[226 Ga. 171] the overruling of the defendant's motion to quash the indictment and his challenge to the array, based on these grounds, was not error.

2. The trial court did not abuse its discretion in denying the defendant's motion for change of venue.

3. The trial judge did not err in refusing, upon motion of defendant's counsel, to disqualify himself in the trial of the case.

4. The court did not err in overruling the defendant's motion to suppress evidence obtained in a reasonable search of the defendant incidental to his lawful arrest, nor in overruling his objection to testimony as to such search and seizure.

5. The court did not err in excluding for cause veniremen who unmistakably expressed the view that their feelings toward capital punishment were such that they would never vote to impose the death penalty regardless of the facts of the case.

6. The trial court did not abuse his discretion in disallowing the questioning of prospective jurors as to their previous service on any jury that had returned a death penalty verdict.

7. The trial court did not abuse his discretion in refusing to permit the defendant to challenge prospective jurors on the ground of their having contributed to a fund raised for the family of the deceased.

8. The constitutionality of the State statutes authorizing capital punishment and the discretionary reduction of the sentence to life imprisonment by juries has been previously upheld.

9. The trial court's refusal to allow defense counsel to ask the defendant a question in the course of his unsworn statement, if error, was not harmful under the circumstances.

10. The evidence supported the verdict; therefore, the overruling of the general grounds of the motion for new trial was not error.

11. Where the jury conveyed their request for a recharge on a particular point to the judge in his chambers by way of a bailiff and the judge conveyed by the same means his response to the jury that he could not tell them, all not in the presence of the defendant but with the knowledge of his counsel before verdict, there was no error.

[226 Ga. 172] John F. M. Ranitz, James E. Yates, III, Howard A. McGlasson, Jr., Savannah, for appellant.

Andrew J. Ryan, Jr., Dist. Atty., Robert E. Barker, Andrew J. Ryan, III, Tom Edenfield, Savannah, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Larry H. Evans, Atlanta, for appellee.

PER CURIAM.

1. Enumerated errors 1 and 2 are on the overruling of the defendant's motion to quash the indictment and his challenge to the array. It is contended, briefly, that Code Ann., Title 59 is unconstitutional because it excludes a large portion of persons from jury service without justification and permitted a racial imbalance on the county board of jury commissioners and a racial, sexual and age imbalance in the array of jurors in the present case.

(a) The fact that only one of the six members of the Chatham County Board of Jury Commissioners is a Negro, representing 17% of the board's membership, whereas 32% of the county population is Negro, makes neither the statute providing for the appointment of the commissioner (Code Ann. § 59-101) nor its application

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unconstitutional. The constitutionality of this statute was upheld as applied in the case of Avery v. State, 209 Ga. 116, 122(1b), 70 S.E.2d 716, in which case there was not even one Negro commissioner on the board. Although this case was reversed by the U.S. Supreme Court, Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, in neither that case nor in the subsequent case of Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, was the racial composition of the board even alluded to, much less disapproved.

(b) It is alleged that, whereas the population of Chatham County is 68% white and 32% Negro, the petit jury list was comprised of 87.7% white and 12.3% colored persons, the entire petit jury was 89.7% white and 10.3% colored and the panel of 48 jurors actually put upon the defendant was 99.6% white and .4% colored. These statistics, stipulated by both parties, indicate a disproportionate number of whites as compared to Negroes on the list of jurors, it is true. 'However, proportionate[226 Ga. 173] representation of the races is not necessary to guarantee equal protection of the law to the accused. Heard v. State, 210 Ga. 523, 81 S.E.2d 467; Swain v. State of Alabama, supra; (380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759;) Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692.' Brookins v. State, 221 Ga. 181, 187, 144 S.E.2d 83. What the Supreme Court disapproved, in such cases as Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, supra, was not the disproportionate representation of the races on the jury list per se, but the existence of the opportunity for discrimination, arising out of certain procedures there employed. The disproportion was viewed merely as evidence tending to support the suspicion of discrimination, which together comprised a prima facie case. The Supreme Court, in the Whitus, case, supra, p. 552, 87 S.Ct. 643, recognized that the conclusion of discrimination from the disproportion was necessarily based upon mathematical probability, which necessarily resulted in some variance between the ratios of Negroes to whites on the jury lists and on the tax digest.

The primary objectionable procedure in the prior cases was the use, in the boxes from which jurors' names were drawn, of different colored tickets, which, along with the jury lists, were made up from the county tax digest, which had the letter (c) after the names of the Negroes and which, in turn, was made up from tax return sheets furnished by the State Revenue Department which were segregated according to race, either by the use of yellow and white sheets or separate listings, as was authorized by former Code Ann. §§ 92-6307, -6308. Both of the statutes were repealed by the Ga.L.1966, p. 373, thereby eliminating this basis for discrimination.

Furthermore, Code Ann. § 59-106 was revised by Ga.L.1967, p. 251, so as to provide that the jury list should be compiled from the official registered voters' list which was used in the last preceding general election, rather than from the tax digest, as was previously provided.

All public officers are presumed to have discharged their sworn official duties. Kirk v. State, 73 Ga. 620(3b); Horne v. State, 170 Ga. 638, 640, 153 S.E. 749; Cornelious v. State, 193 Ga. 25, 32, 17 S.E.2d 156; Thompson v. State, 203 Ga. 416, 418, 47 S.E.2d 54. Based on the record in this case we must assume that [226 Ga. 174] the jury commissioners eliminated prospective jurors on the basis of their competency to serve, rather than because of racial discrimination.

(c) Nor do the facts that persons the defendant's age, twenty, are excluded from the jury list and that the ratio of females to males in the county is not maintained on the jury list make the statute or its application unconstitutional. In the case of Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664, the court said: 'We do not say that within the limits from which it is not excluded by the (14th) amendment, a State may not prescribe the qualifications of its jurors, and in so doing make discriminations. It may confine the selection

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to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the 14th Amendment was ever intended to prohibit this.' (Emphasis supplied.)

(d) We have held above that the application of the statutes concerning the selection of the jury has not been shown to be unconstitutional. Title 59 of our Code is challenged as a whole, which attack must fail, since the statute is not invalid in every part for any reason alleged. Williams v. Ragsdale, 205 Ga. 274, 53 S.E.2d 339.

2. The defendant's motion for change of venue, on the ground of the unobtainability of an impartial jury, showed that there had been extensive radio, television and newspaper coverage of the events connected with the shooting of the police detective with whose murder the defendant was charged.

The key rulings on such motions in this type of case, as gleaned from Morgan v. State, 211 Ga. 172(1), 84 S.E.2d 365 and cit., may be expressed thus: There is no inference of prejudice requiring a change of venue from the mere fact of the publishing of descriptive or even denunciatory matter, or even from the juror's having formed or expressed an opinion from rumor or from reports from newspapers or other news media; what is required is a showing that the juror had formed such a fixed or unchangeable opinion as to the guilt or innocence of the defendant as would not yield readily to the testimony. The record in the instant case indicates that, subsequent to the [226 Ga. 175] making of the motion, the 48 prospective jurors were each qualified by asking them whether they had read, heard or seen the allegedly prejudicial reports and that all of them stated under oath that, even if they had, they had an open mind about it and were not prejudiced in any way. The publicity was not prejudicial per se. Even where the evidence is in substantial conflict, the trial judge does not abuse his discretion in overruling a motion for change of venue. Chatterton v. State, 221 Ga. 424, 429, 144 S.E.2d 726. The court did not abuse his discretion in denying the change of venue under the circumstances in this case, as contended in enumerated error 3.

3. 'Alleged prejudice or bias of a trial judge which is not based...