White v. State, 27612

• Decision Date: 15 March 1973
• Docket Number: No. 27612,27612
• Citation: 196 S.E.2d 849,230 Ga. 327
• Parties: Harry WHITE v. The STATE.
• Court: Georgia Supreme Court

Page 849

196 S.E.2d 849

230 Ga. 327

Harry WHITE v. The STATE.

No. 27612.

Supreme Court of Georgia.

March 15, 1973.

Rehearing Denied March 29, 1973.

Syllabus by the Court

1. The requirements of Georgia Laws 1968, p. 533 (Code Ann. § 59-106) and of Code Ann. § 59-201 requiring the grand jurors in the various counties of this state to be chosen from among the most experienced, intelligent and upright citizens are not violative of the Equal Protection and Due Process Clauses of the Constitution of this State nor of the United States Constitution.

2. The evidence did not demand a finding that the jury commissioners of Coweta County purposefully refused to place persons on the jury panels on account of their age, race or sex, and the trial court did not err in overruling the accused's challenges to the grand and petit jury panels on account of such alleged de facto discrimination, nor in overruling the motions to quash the panels raising the same questions.

3. The grounds of enumerated error complaining of alleged improper argument are without merit as pointed out in the corresponding division of the opinion.

4. The evidence as to the chain of possession of the suspected drugs from the time they were received by the investigating narcotics agent and delivered to the State Crime Laboratory was sufficient to show prima facie that those tested by the toxicologist who testified as to her findings with respect thereto were the same as those delivered by the accused to the investigating agent.

5. Under the facts of this case, it was not harmful error to refuse to permit the wife of the accused to sit at counsel table during the striking of the jury, nor was it an abuse of discretion for the trial court to refuse to permit the jurors to be questioned as to their age.

6. The trial court did not err in refusing to grant the motion of the accused for discovery and the production of evidence, since, if granted, such motion would have compelled the district attorney to open his file to the accused contrary to the ruling of this court in Walker v. State, 215 Ga. 128, 131, 109 S.E.2d 748.

7. The trial court did not err in refusing the requests to charge filed by accused as complained of in grounds of enumerated error numbered 29, 34 and 35.

8. The remaining grounds of error as dealt with in the corresponding division of the opinion are not meritorious.

9. The evidence authorized the verdict.

Millard C. Farmer, Jr., Newnan, for appellant.

Eldridge W. Fleming, Dist. Atty., William F. Lee, Jr., Newnan, for appellee.

HAWES, Justice.

Harry White was convicted of violating the Georgia Drug Abuse Control Act (Ga.L.1970, pp. 462, 463; Code Ann. § 79A-9916) and sentenced to two years imprisonment and $1,000 fine. He appealed, and in this court enumerates 36 grounds of alleged error. Such facts as may be necessary to a full understanding of the rulings made will be set forth in the opinion.

1. The accused filed in the trial court challenges to the array of the grand and petit juries and moved to quash the panel of grand jurors and panel of petit jurors. The challenges and all of accused's motions in this regard were overruled, and the rulings thereon constitute the basis of the first 12 grounds of his enumeration of errors.

Code § 59-106, as amended by Ga.L.1968, p. 533, relating to the revision of jury lists provides that the jury commissioners of each county shall compile, maintain and revise at least bienially a jury list of intelligent and upright citizens of the county to serve as jurors. The commissioners are required to select a fairly representative cross-section of the intelligent and upright citizens of the county from the official registered voters list which was used in the last preceding general election. It further provides, 'If at any time it appears to the jury commissioners that the jury list, so composed, is not a fairly representative cross-section of the intelligent and upright citizens of the county, they shall supplement such list by going out into the county and personally acquainting themselves with other citizens of the county, including intelligent and upright citizens of any significantly identifiable group in the county which may not be fairly representative thereon. After selecting the citizems to serve as jurors, the jury commissioners shall select from the jury list a sufficient number of the most experienced, intelligent and upright citizens, not exceeding two-fifths of the whole number, to serve as grand jurors.' (Emphasis supplied). The accused contends that the language quoted, and especially that italicized, results in the exclusion of young adults ranging in age from 18 to 30 years from service on the grand jury and thereby deprives a young adult from being charged by a jury composed of his peers, since a significantly identifiable segment of the community is unrepresented on the grand jury panel as a result of such exclusion, and that the Due Process and Equal Protection Clauses of the U.S. and State Constitutions are violated by the procedure engendered by such words. He also attacks on the same ground the provisions of Code Ann. § 59-201 relating to the qualifications of grand jurors.

Article VI, Sec. XVI, Par. II of the Constitution of the State of Georgia, 1945 (Code Ann. § 2-5102) provides: 'The general assembly shall provide by law for the selection of the most experienced, intelligent and upright men to serve as grand jurors, and intelligent and upright men to serve as travers jurors.' The appellant has made no attack on the validity of this provision as respects rights guaranteed by the U.S. Constitution. When the Constitution of the State of Georgia of 1945 was voted on and adopted by the people of this State, this provision was a part thereof. The people of the State of Georgia have not seen fit to change this provision since its adoption in 1945. It clearly sanctions, if indeed it does not command, the requirements of Ga.L.1968, p. 533 (Code Ann. § 59-106), and of Code Ann. § 59-201. This court is unwilling to say that it is not within the power of the people of this state to fix qualifications of intelligence, character and experience in order for persons to be selected to serve on grand and petit juries. It is inherent in the system that discretion to make judgments as to those persons meeting those qualifications must be reposed somewhere. Our legislature has seen fit to vest a panel of jury commissioners with this authority. The jury commissioners in this case, so far as appears, were appointed according to law. The standards of intelligence, uprightness and experience are not violative of the Constitution of this State and do not violate the Equal Protection and Due Process Clauses of the U.S. Constitution.

Furthermore, it cannot be said that the requirement that the jury commissioners select the most experienced from the jury list to make up the grand jury box necessarily results in the rejection of young adults. Whether this is so depends, at least in some measure, on the way in which the law is administered.

2. With respect to the contention of de facto discrimination by the jury commissioners in the selection of individuals to be placed on the jury list, it is sufficient to say that appellant did not introduce evidence demanding the conclusion of de facto discrimination. No question is presented as to the standing of appellant, a white male 24 years of age, to raise the question as to discrimination against negroes and women. Any doubt as to this has clearly been laid at rest by the recent decision of the Supreme Court of the United States in Peters v. Kiff, Warden, 407 U.S. 493, 92 S.Ct.2d 2163, 33 L.Ed.2d 83. To establish de facto discrimination appellant relied principally upon a statistical analysis and comparison of the ratio of the percentage of blacks on the jury panel with the percentage of blacks in a true cross-section of the population; the percentage of women on the jury panels, with the percentage of women in a true cross-section of the population; and the percentage of young adults on the jury panels as compared with the percentage of young adults in the age bracket of 18 to 30 years in a true cross-section of the population of Coweta County. For the purpose of this decision, we may concede that the figures shown by appellant's evidence are accurate. This evidence all related to persons on the current grand jury list and the current petit jury list. While appellant did introduce in evidence one previous grand jury and petit jury list, he nowhere produced any evidence showing the number of negroes, women and young adults thereon. This is not sufficient. Purposeful discrimination is not shown by introducing evidence that as to a single grand jury or petit jury members of any large or identifiable segment of the community thereon, either negroes, women or young adults, are less in proportion than the proportion such identifiable segment bears to the population in general. Adkins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 89 L.Ed. 1692. 'The well settled rule is that, given a lawfully selected panel, free from any taint of invalid exclusions or procedures in selection and from which all disqualified for cause have been excused, no cause for complaint arises merely from the fact that the jury finally chosen happens itself not to be representative of the panel or indeed of the community. There is, under such circumstances, no right to any particular composition or group representation on the jury.' Frazier v. United States, 335 U.S. 497, 507, 69 S.Ct. 201, 207, 93 L.Ed. 187.

Additionally, the appellant sought to support his contention of purposeful discrimination against the classes of persons involved, that is, negroes, women and young adults, by introducing evidence that the six jury commissioners were all men over the age of 38 and that only one of their number was a negro. He coupled this evidence with testimony of the jury...