Davis v. State ( 1978 )

Hill, Justice,

dissenting.

I dissent from Divisions 1 and 2 of the court’s opinion and the judgment.

As the majority opinion notes, the defendant offered evidence showing that 31.8% of the population of Troup County is black and 52.9% is female (my computations from the 1970 census of Troup County as to the population over 18, and thus eligible to serve as jurors, shows that 27.8% is black and 55.3% is female). The evidence showed that the applicable traverse jury list was 13.7% black and 34.5% female. The disparity in black jurors was a least 14.1% (27.8% minus 13.7%) and the disparity in women was even greater.

Our law, Code Ann. § 59-106 (as amended), requires that when the jury list does not contain a fairly representative cross-section of the upright and intelligent citizens of the county, the jury commissioners shall supplement the list so as to make identifiable groups (e.g., blacks, women) fairly representative. There is no evidence of compliance in this case with this requirement and the percentages demonstrate that it has not been satisfied. Because the jury selection procedure did not comply with our law, I must dissent.

I believe that juror Ruben Haynes was excused for cause in violation of Witherspoon v. Illinois, 391 U. S. 510 (88 SC 1770, 20 LE2d 776) (1968). The voir dire of this prospective juror shows that after expressing general opposition to capital punishment, he responded to the district attorney’s questions by saying that his attitude was not such as would cause him to automatically vote against the death penalty, that he guessed he could give a person capital punishment under some circumstances or at least would have to do some thinking on that, and that whether he would give anybody capital punishment would depend on the circumstances. When informed by the court that his last answer was not a full answer, the juror apparently believed the judge was telling him he would have to make up his mind one way or the other, that he could not equivocate depending "on the circumstances.” In any event, he then said that he "would not give it to anybody” under any conditions. The state moved to strike the juror and the defense sought to examine him. In response to questions from defense counsel, the juror said that if the evidence was concrete then he could not say unequivocally that he would automatically vote against the death penalty but that he couldn’t consider the death penalty if he wasn’t sure. This juror was excused for cause, improperly I believe. He did not show "... unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal. . .” Witherspoon, supra, 391, p. 516, n. 9.Hewas notshowntobe irrevocably committed to vote against the penalty of death regardless of the facts and circumstances adduced at trial. See Davis v. Georgia, 429 U. S. 122, 123 (97 SC 399, 50 LE2d 339) (1976).

For the foregoing reasons, I must dissent.