*1 Nichols, J., who C. concurs specially.
Arguеd 21, 1977 Decided March 7, 1977. June Robinson, Harben, Milliken, Armstrong & Sam S. Harben, Jr., appellants. for Dunn, Greer, Parks, Reed,
Reed & Robert J. Douglas Deal, Jarrard, Greer, Birch, Orr & for appellees. Tifton Justice, Chief concurring specially.
Nichols, case, While I concur the results this reached appellants have not on enumerated error the trial court’s finding they failed as an standing establish aggrieved party Therefore, recover this action. appellees prevail would be entitled to for motion summary judgment, judgment and the court trial Aiken, must be affirmed. Nalley App. 377) (1969). 32223. BARROW v. THE STATE. Presiding Justice. Undercofler, granted We have in- application for terlocutory appeal important consider questions concerning the compositions indicted him and the traverse that will him for try murder. Barrow faces death court penalty. The trial sustained the legality juries; both we reverse.
1. Barrow indicted on April Although he was represented 11,1975, by counsel from February no motion regarding was made the composition of the jury. tried, convicted, Barrow was given the death murder, sentence for but his conviction was overturned this court and sent back new trial. Barrоw v. Barrow then filed his challenge to the grand jury, which the trial We, however, overruled as not timely. because special facts reverse trial court on this point. general rule is challenged indictment unless prior
must be
notice of
no
or constructive
defendant shows
had
actual
SE
Sanders v.
[1962].” 171) (1965). In his on Barrow’s testimony hearing at the motions, defender, represented public who had trial, had not his first made clear that he very Barrow at though he challenge, even making considered such have been probably under our cases he would realized successful. did not that the reasons he attorney stated that he had grand included fact
challenge jury court by superior been for a term appointed two-year rehired, that he felt that to judge county and wanted to him inure pressure adverse would community on placed if he more blacks personally attempted other clients grand obligations and that he had jury, bringing an to jeopardize by whom he did not want unpopular he felt some motion. He said also Barrow, who was pressure represented because he accused of a well-likеd white member killing challenge such a though community, because For county. in to the money would be both time and costly reasons, not policy all he made it a blanket these that thinking in for grand challenge jury any sake, it would reasons, personal well as for the client’s as expedient not be the course to follow. Were there "Q.
On examination the state: сross you that being not other reasons besides Public Defender case? A: challenge Barrow’s did not file such Keithen Well, they my all reflect there were other reasons but Defender,
being yes Q: you saying you Public sir. Are that not, did and do you remember told me that one you you the reasons did it because felt that [sic] would be in the best interest Keithen Barrow in this Well, not so challenge? case file this A: Keithen Barrow else anybody matter.” think attorney We on this record that did Barrow’s proper not exercise "A lawyer’s duty function determine it is whether to the best interest his client to Whitley, raise the of systematic exclusion.” Burkes issue Cobb v. supra; We therefore hold that under these extraordinary circumstances the trial erred overruling chаllenge grand having Barrow’s to the been raised too late. next We reach the plea merits
abatement the 1973 illegally are He constituted. claims that which indicted him 1975 traverse jury blacks, women, are unconstitutional and 18 to 30- because year-olds underrepresented. are
We do not
alleged underrepresentation
consider the
*3
18
30-year-olds
of
to
because
are
a
they
recognized
not
Gould,
312)
clаss. State v.
(209
232
Ga. 844
SE2d
State,
White
v.
230 Ga.
327
do
Nor
we consider
the exclusion of women on
grand
because the 1973
which
jury
indicted Barrow was
constituted
before
United States
Court’s
Supreme
Louisiana,
(1975),
decision in
v.
Taylor
419
522
U. S.
holding that
as
women
a
could not
class
from
excluded
jury
That
Louisiana,
service.
court made clear in
v.
Daniel
(1974)
Blacks 37.3% differential is sufficient the 1973 This jury. of 3% exclusion systematic facie case of prima establish State, 235 Ga. Sanders v. grand jury. from the blacks (1975). 'spectacular’ "Evidence burden, making meets the underrepresentation Caldwell, p. facie case оf discrimination.” Pass v. supra, petit Barrow’s The 1975 traverse from which jury, chosen, black 34.6% originally will be 11.3% in the 51%, respectively, female versus 37.3% in the trial court below hearings community. then suspended by judge; challenges were supplement commissioners ordered the a cross-section "fairly represent list so that it would that 757 blacks Barrow informed the court community.” necessary were 686 would have to be female which However, jury. on the traverse percentages correct the Barrow 321 were black. only names were added of which now supplemented jury, 22.9% claims female, in the community, black versus 39.2% 37.3% improperly in the is still community, opposed 51% constituted. has been pattern
An of discrimination historical un Barrow, who submitted evidence shown period and women over a derrepresentation of blacks (207 SE2d Compare Gould App. 131 Ga. years. 844, (1974), part reversed in part, affirmed infra. supra, with White See Division *4 346, 355, United States Fouche, 396 U. S. the In Turner v. Georgia, County, the Taliaferro Supreme Court held up made unconstitutional where blacks % grand jury list, and supplemented on a grand jury the thus Court Suprеme the was black. county where 60% the of blacks underrepresentation found that 38.3% opportunity to discriminate made out a prima facie case of discrimination. On this Oglethorpe County list, jury blacks are 38.6% under- supplemented, Therefore, that a represented. Barrow has shown "sig- source, nificant existed between the disparity” community, and the actual lists.
(b) Opportunity discrimination.
The commissioners
testified
that
the method
selecting jurors
proceed
was
list
through the
of voters
choosing
or
rejecting
prospective
a
juror
recommendation
of a commissioner
knew
personally
the voter. Anyone not known
by a member
commission was not selected. There
were no black
Although
commissioners.
attempts were at times made to
voters,
identify unknown
was not
regular
or
practice.
Fouche,
extensive
Turner v.
supra.
potential
The fact that the
had
be known
jurors
by
one of the commissioners
leads to the
conclusion
race
sex
of the persons selected
also apparent.
were
Although
there was no evidence
jurors were
sex,
consciously
by
selеcted
race
the method used made
it incumbent on the state to
procedure
show that
Caldwell,
fact neutral. Pass
The only evidence
presented
state was
the form of affirmations by
the commissioners
that qualified jurors were selected
without
regard to race or sex. Mere
good
statements
faith have never been deemed sufficient
ovеrcome
facie
case of discrimination.
Alexander
Louisiana,
U.
Fouche,
S. 625
supra;
Turner v.
Texas,
(1949).
Cassel v.
In commissioners, most on questioning, were not informed of the meaning of the term "a fairly representative cross-section intelligent of upright citizens of the county.”1 Nor did they make any attempt accomplish such goal. This was true even after the trial court ordered the commissioners to supplement the list to bring order it up to constitutional levels. After commissioners made required supplementation, no attempt was made to calculate the percentages of blacks and women to see if a representative cross section of the had community been attained. just They "thought it was right.”
The commissioners admitted that there were blacks on the voters’ list not known of them any may qualified been to serve as jurors. Little was attempt made persons ascertain which of these placed could have been the juries. The state made no attempt, rebutting facie to show that the blacks on the qualified. list were fact not Georgia, supra. Whitus v. Women werе excused upon request and the commissioners testified that this was the there reason lists, were so few on the jury although were many qualified. See Division infra. used, overall result of the of method selection of understanding
lack of what required part was the commissioners with apparent their failure to out carry required statutory duty, opportunity discrimination was а list consistently overrepresented by white males. The justify state failed to (1967). We, this Georgia, result. Jones v. 389 U. 24S. therefore, hold that 1973 grand and the 1975 does that "Q: [fairly representative What term cross mean to community] you? doing section of A: It means help what can to your community. Q: That is what a cross section of the means to A: Isn’t that you? says, help your neighbor?” what Oglethorрe County illegally were constituted and must reverse trial court’s overruling of Barrow’s challenges to these juries. In error, third his enumeration Barrow claims the trial court refusing erred in to allow evidence of juries 1971, 1973, other than those of
and 1975. Because our ruling 2, however, in Division we do not find Barrow was thereby harmed and refuse to reverse the trial court on point.
4. Barrow’s fourth enumeration of error raises the *6 сonstitutionality (b), of Code Ann. 59-112 which allows § women with children under petition fourteen to the court to be excused from jury duty. We have in already held v. State, (219 389) Zirkle 235 Ga. 289 (1975), SE2d that this has, statute is constitutional. however, Barrow produced sufficient evidence to show that this may statute been in improperly applied Oglethorpe County. No discretion appears to hаve been the trial exercised in excusing women with children2 young with the result that women have thus been generally un- derrepresented juries. on its The commissioners almost uniformly gave this reason for the low number of women on the jury. Since these juries redrawn, must be we comment on point this so that juries new will composed to according the law. concur,
Judgment All reversеd. the Justices except Bowles, J., 1, who dissents as to Division and concurs specially 2, 3,' 4, Jordan, J., Divisions and dissents.
Argued May 9, Decided June 7, 1977. Farmer, Jr., Millard C. for appellant.
2 To be excused a letter to was written the clerk. The list year was carried from year over so that so once excused, again those women were never asked serve. 59-124, 1975, 779, See Ann. L. repеaled Code Ga. pp. § Miller, Johnson, Bryant Cleve Cíete District Huff, Jackson, Attorneys, Attorney, Dawson Assistant District Bolton, General, Kohler, Attorney Arthur K. Harrison General, Attorney Assistant appellee. Justice, dissenting in part specially
Bowles, concurring in part.
I
1 of
respectfully
holding
dissent from the
Division
opinion
because it is
firm belief that defendant has
my
right
waived his
to attack the
of the
composition
appointed
this case. Counsel was
for the defendant
indictment,
prior
to the
elected
voluntarily
not to make a
pre-indictment
challenge
of that
When he elects to
he has waived his
body.
do this
State,
(208
object. Estes v.
right
to later
806)
State,
McHan v.
(1974);
SE2d
457)
(1975);
Williams
majority
testimony
based
did
attorney’s
making
challenge,
reason for not
lawyer’s proper
duty
not exercise a
function
determine
whether
is to the best interest of his client
raise the issue of
An
systematic exclusion.
examination
record
indicates
lawyer
very
same
*7
in
adequately represented
very
the defendant
a
difficult
case. Following
successfully
the first
conviction
he
prosecuted
appeal
an
in this court and obtained for his
client a new trial. No
is
It is
to look
lawyer
perfect.
easy
back, put the
examine him
lawyer
stand
cross
in
doing
about his reasons for
or not
a
act
doing particular
the course of trial.
the
or
not
lawyer says
say
What
does
his client
is a confidential matter
cannot be
which
evidence,
penetrated under our rules of
without consent.
mind,
Who can
what the
in
he be a
say
lawyer has
whether
defender,
public
counsel,
appointed
employed
or
counsel.
event,
situation,
In any
when faced with
he
a difficult
his
might
realize that a
which is to consider
client’s case
be
Can he then sit
may
illegally constituted.
trial,
returned,
allow the
idly by,
go
indictment
to be
lose his
other counsel
employ
allow the defendant
judgment
havе the verdict and
reversed because
might
what the defendant’s
have done but did not
lawyer
effect,
is an
give
do? There
old
"Don’t
saying
what you
you
you
reason for
did until
have to.
the time
By
to,
may
thought of a
If
have
better
reason.”
opinion
position
is
we will be in
majority
followed
second
judging
guessing
or
the acts of
counsel
capable
we
which I feel
should not do. This is a thicket from which
ourselves,
we will
be able to extricate
we will not
not
follow-
lay
be able to
down rules or standards
that can be
any degree of practicality.
ed with
Additionally,
defendant and his
not shown
subsequent
attorney have
any
prejudice
actual
his first
make a
by
counsel’s failure to
challenge to the
timely
array
which
In
indicted him.
order to excuse
resulting
a waiver
from
his failure to assert
in
an
fashion he must
objection
timely
not
show
This
has
done. Francis v.
prejudice.
Hen-
derson,
1708,
Granted, оf of a out with blacks composed only 3% stitutionally this, the jury with Faced community. total of in the 37.3% bona fide effort apparent made an commissioners the citizens cross-section of representative a fairly secure persons the addition of black community by percentage the black 22.9% brought list. This female versus in the versus 39.2% 37.3% community. in the 51% that your to the commissioners says
This court names until fruitless, keep adding go back and efforts are females; only of blacks percentage the exact you reach trial. "perfect” give the defendant then can pristine can ever reach justice of system No to trial with put is If a defendant perfection. heights com- represent cross-section "fairly who jurors him imрartiality who swear between munity” than Nothing more state, he ask? what more can and the required. is needed opinion. Division dissent from respectfully I INVESTMENT al. v. FIRST GEORGIA 32106. KIRK et CORPORATION. Justice.
Hall, Court Superior order of the from an appeal This is an summary motion for denying appellant’s County of Heard summary motion for granting appellee’s judgment appellee brought by original action judgment. release certain performance sought specific to secure debt. in a deed provisions acres Cannon, 587.78 purchased D. Jr. A. In