Wooten v. State, 7 Div. 597
Decision Date | 29 August 1978 |
Docket Number | 7 Div. 597 |
Citation | 361 So.2d 1192 |
Parties | David WOOTEN, alias David Lee Wooten v. STATE. |
Court | Alabama Court of Criminal Appeals |
William D. Hudson, Gadsden, for appellant.
William J. Baxley, Atty. Gen. and Anthony McLain, Asst. Atty. Gen., for the State.
The appellant was indicted and convicted for rape. A jury fixed sentence at ten years' imprisonment.
There was no motion to exclude the state's evidence, no request for an affirmative charge or directed verdict, and no motion for new trial. All the requested charges were given and defense counsel announced "satisfied" with oral charge of the trial court. We are not called upon to review the sufficiency of the evidence to support the conviction. Without detailing the testimony of each witness we will simply state that there was sufficient evidence to support the charge of rape.
The day before trial the appellant made an oral motion to quash the entire jury venire on the grounds that it "was not constitutionally constituted to race and age." In support of this motion, the clerk for the Etowah County Jury Commission had been ordered "to evaluate its system of selecting jurors for the jury roll as regards to race and age". Exhibits were introduced to show the number of names added and deleted from the jury roll by the Jury Commission since that time. The appellant argues that since these figures show more deletions than additions they alone are "sufficient to show a total failure of the commission to attempt to comply with the Court order of 1976 and that Wooten was not given a properly constituted jury venire from which to select his jury".
The clerk of the Jury Commission testified that she did not keep up with how many names were removed and added to the jury list. She denied any intentional discrimination and stated that she had made an effort to get more "young people" and blacks on the jury roll since 1976.
The exhibits introduced by the appellant list only the number of additions and deletions of names from the jury roll. They contain no indication of race or age. The only other evidence bearing on the issue of discrimination was statements of counsel of the facts that, of the ninety-four veniremen who were summoned and appeared for a week of jury trials, only three jurors were black and "a very small percentage no one counted them specifically because no one had access specifically to their ages, but a very small number by appearance appeared to be under 30". No attempt was made to prove the percent of the black population of Etowah County and what percent was present on the entire jury venire. Nor was there any effort to prove how many individuals under thirty were included on or excluded from the venire list. The only reference to this matter was the statement of an attorney for another defendant who was to be tried the same week as the appellant made in the initial presentation of the motion to the court, that "only three blacks are upon the venire, which represents some less than two and one-half percent of the total jury venire as opposed to a population in Etowah County representative of some twenty to twenty-two percent". The actual proof in this matter, without reference to surmise and speculation, is totally insufficient to support appellant's contentions of constitutional violations of the jury selection process.
Rainer v. State, 342 So.2d 1348, 1349 (Ala.Cr.App. 1977).
See also Butler v. State, 285 Ala. 387, 232 So.2d 631 (1970).
Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 827, 829, 830, 13 L.Ed.2d 759 (1965).
These same comments regarding discrimination based on race are equally applicable to discrimination based on age or any other factor. Giddens v. State, 333 So.2d 615 (Ala.Cr.App. 1976).
Disproportionate statistics, e. g. black population as against black jurors, may constitute a prima facie case of purposeful discrimination shifting the burden to the state to rebut the presumption of unconstitutional action. Black v. Curb, 464 F.2d 165, 168 (5th Cir. 1972). Here the appellant failed to sustain his burden of proof in supplying such disproportionate statistics. There is no legal evidence in this case to even find a...
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