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24824 - State v. Ricky George

Davis Adv. Sh. No. 27
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court





The State, Respondent,

v.

Ricky George, Appellant.



Appeal From Horry County

Edward B. Cottingham, Judge





Opinion No. 24824

Heard May 12, 1998 - Filed July 27, 1998





AFFIRMED





Senior Assistant Appellate Defender Wanda H. Haile,

of South Carolina Office of Appellate Defense, of

Columbia; and William Isaac Diggs, of Myrtle Beach,

both, for appellant.





Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka., all of

Columbia; and Solicitor Ralph J. Wilson, of Conway,

all, for respondent.





TOAL, A.J.: Ricky George appeals from an order rejecting his claim

of an equal protection violation based on systematic exclusion of African

Americans in the Horry County grand jury selection process. We affirm.



p.14


STATE v. GEORGE





FACTUAL/PROCEDURAL BACKGROUND

George was charged and convicted of murder, conspiracy to commit

murder, and armed robbery. He was sentenced to death. In State v. George,

323 S.C. 496, 476 S.E.2d 903 (1996), cert. denied, 117 S. Ct. 1261 (1997), we

affirmed George's conviction and sentence, but remanded the matter for an

inquiry about one issue, namely, George's allegation that the indictment in

the case was issued by a grand jury from which African Americans had been

excluded. On appeal, we observed that although the record contained no

statistical evidence to support George's claim that African Americans had

been systematically or deliberately excluded, it did appear that they were

underrepresented on the grand jury in this matter. Because the trial court

had denied George's request for a separate hearing to present data pertaining

to the disqualification of individual grand jurors in Horry County, we

concluded that George was denied the opportunity, as outlined in Castaneda

v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977), to provide

statistics comparing the proportion of African Americans in Horry County to

the proportion called to serve as grand jurors.



Accordingly, the matter was remanded to the circuit court to carry out

a factual inquiry about this issue, pursuant to the standard enunciated in

Castaneda. After remand, a hearing was conducted where evidence was

presented on whether African Americans had been systematically excluded

from the Horry County grand jury. The circuit court subsequently issued an

order finding there had been no discriminatory exclusion of African

Americans. George appeals that order.





LAW/ANALYSIS

George argues the circuit court erred in finding that no systematic

discrimination against African Americans existed within the Horry County

grand Jury selection process. We disagree.



George notes that his indictment was handed down by a grand jury

that included no African Americans. Additionally, no African Americans sat

on Horry County's grand jury for the period 1991-93. George's expert, Dr.

Albiniak, testified that the probability of this occurring was 1 in 5,000.

Further, George asserts that although African Americans represented 13% of

Horry County's population, only 7.5% of those summoned for grand jury

service during the 1991-96 period were African Americans. Based on this

statistical information, George argues that the circuit court erred in finding

no systematic exclusion.



p.15


STATE v. GEORGE





In Castaneda, the United States Supreme Court outlined the following

test to be utilized when a defendant makes a grand jury discrimination claim:





[I]n order to show that an equal protection violation has occurred

in the context of grand jury selection, the defendant must show

that the procedure employed resulted in substantial under-

representation of his race or of the identifiable group to which he

belongs. The first step is to establish that the group is one that

is a recognizable, distinct class, singled out for different

treatment under the laws, as written or as applied. Next, the

degree of underrepresentation must be proved, by comparing the

proportion of the group in the total population to the proportion

called to serve as grand jurors, over a significant period of time.

. . . Finally, . . . a selection procedure that is susceptible of

abuse or is not racially neutral supports the presumption of

discrimination raised by the statistical showing. Once the

defendant has shown substantial underrepresentation of his

group, he has made out a prima facie case of discriminatory

purpose, and the burden then shifts to the State to rebut that

case.





Castaneda, 430 U.S. at 494-95, 97 S. Ct. at 1280, 51 L. Ed. 2d at 510-11

(citations omitted)(emphasis added).





Under the Castaneda test, it is undisputed that George satisfied the

first element of belonging to a group that is a recognizable, distinct class.

The second element of the Castaneda test is that the degree of

underrepresentation must be proved by comparing the proportion of the group

in the total population to the proportion called to serve as grand jurors, over

a significant period of time. Because Castaneda requires analysis of

underrepresentation over "a significant period of time," we must conduct our

examination based not on the 1991-93 figures, but rather the 1991-96 figures.



At first blush the statistical data mentioned above may raise the

specter of underrepresentation; however, a closer examination reveals that

George's statistical figures are seriously flawed. There are three major

problems with George's statistical argument. First, George's statistical

comparisons are based on an incorrect base figure. As indicated above,

George asserts that although African Americans represented 13% of Horry

County's population, only 7.5% of those summoned for grand jury service

during the 1991-96 period were African Americans. The problem with this

argument is that the 13% figure is not the percentage of Horry County's



p.16


STATE v. GEORGE





African American population that was eligible for jury duty, but rather the

percentage of African Americans who were registered to vote. The manner

in which grand juries are selected in South Carolina is as follows:



Each county receives a list of individuals who reside within that

county, who are over eighteen years of age, who hold a South

Carolina driver's license or identification card, and who are

United States citizens. This list is merged with the county list

of registered voters to establish the roll of eligible jurors for that

county.





George, 323 S.C. at 506, 476 S.E.2d at 909 (citing S.C. Code Ann. § 14-7-130

(Supp. 1995)). In his statistical arguments George's expert witness based his

calculations on a 13% figure that constituted just the voter registration pool,

not the potential jury pool.1 In other words, the figure did not take into

account the statutory requirement of both the voter registration list and the

driver's license/identification card list. At the hearing, the circuit court raised

this question, but the question was not adequately addressed by the parties.

Because the base figure was incomplete and did not conform to the statutory

requirements, all of George's figures rest on a suspect foundation.





If the voter registration list information had been combined with the

driver's license/identification card list, then the figures may well have been

different. Without having this additional information, it is speculative to

suggest that the percentage of jurors selected of a particular race is

disproportionate to the percentage in the total population. George's expert

witness testified that he was not sure how the addition of the driver's

license/identification card records would have affected the base percentage of

African Americans.



The second major problem with George's statistical argument is that

the data does not take into account excusals. Even if the 13% figure is

presumed to be accurate, the greatest discrepancies between the population

figures and the juror figures appeared in the jurors actually selected, not in

the persons summoned. After the jurors were summoned, they were qualified

by the court. Jurors could be excused based on various factors. Such


1 We note that the circuit court's order incorrectly refers to Dr. Albiniak's

testimony concerning African Americans making up more than 13% of the

"voting and driving population." This statement -- that the percentage was

based on voting and driving population -- is directly contradicted by the

record, so we assume this was a scrivener's error.

p.17


STATE v. GEORGE



excusals may well have had an impact on the number of African Americans

jurors available for selection; however, George has not presented any evidence

as to who was excused, why they were excused, and whether there "was a

discrepancy between excusals for African Americans and whites. Dr. Albiniak

testified that he did not know how many of those in the jury pool were

excused for valid reasons.



The third major problem with George's statistical analysis is that it

fails to take into account holdover jurors. Dr. Albiniak's probability figures

were based on an independent selection of jurors for each year. However,

this is not a valid assessment because the selection of jurors was not entirely

independent each year, but depended to a significant degree on the

composition of the previous year's grand jury. One-third of the grand jury

was composed of jurors held over from the previous year's grand jury. See

S.C. Code Ann. § 14-7-1510 (Supp. 1997).2 Thus, if the 1991 grand jury was

all-white, then one-third of the seats on the 1992 jury would have definitely

been taken up by whites. Thus, there would have been only 12, not 18,

potential seats that would have been open for African American jurors.

George's statistical data did not in any way take this factor into account.



Assuming arguendo that George's statistical information was valid, the

discrepancies in this case are not comparable to those cases wherein equal

protection violations have been upheld. For example, in Castaneda, an equal

protection violation was found by the United States Supreme Court where

Mexican-Americans constituted over 79% of the population of a county, but,

over an 11-year period, only 39% of persons summoned for grand jury service

were Mexican-American. Castaneda, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed.

2d 498; see Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567

(1970)(blacks constituted 60% of the general population, but 37% on the

grand jury lists); Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed.

2d 599 (1967)(blacks listed on tax digest amounted to 27.1% of taxpayers, but


2 The statute provides:

During the last term of the court of general sessions held in each

county for any year six of the grand jurors then in service must.

be drawn as provided in this article who, together with twelve

grand jurors selected in the manner prescribed, shall constitute

the grand jury for the succeeding year. No person shall serve as

a grand juror for more than two consecutive years.



S.C. Code Ann. § 14-7-1510.



p.18


STATE v. GEORGE



only 9.1% on the grand jury venire); Sims v. Georgia, 389 U.S. 404, 88 S. Ct.

523, 19 L. Ed. 2d 634 (1967)(blacks made up 24.4% of taxpayers, but only

4.7% of those on grand jury lists). In contrast, this case presents a

comparison between 13% and 7.5%.





In Castaneda, the United States Supreme Court observed that as a

general rule for large samples, if the difference between the expected value

and the observed value is greater than two or three standard deviations,3

then the hypothesis that the jury drawing was random would be suspect to

a social scientist. Castaneda, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498.

In this case, George's expert testified that for each year between 1991 and

1996, the standard deviation was less than three. With the exception of

1993, every year between 1991 and 1996 was statistically within tolerance

(i.e. the allowable deviation).



The third element of the Castaneda test is that "a selection procedure

that is susceptible of abuse or is not racially neutral supports the

presumption of discrimination raised by the statistical showing." Castaneda,

430 U.S. at 494, 97 S. Ct. at 1280, 51 L. Ed. 2d at 510-11. George argues

that the selection process is not racially neutral because although it may

produce random results in the long-run, it does not produce representative

juries in the short-term. This argument lacks persuasion because the

selection process needs only be race neutral; there is not a strict legal

requirement that every single jury be uniformly representative of the

population. Additionally, George argues that the excusal process could be

abused, but he does not offer evidence in support of this proposition.



Based on the foregoing, we conclude that George has not made a prima

facie showing under the Castaneda test. However, even if it is assumed that

George has made a prima facie showing of substantial underrepresentation,

then the burden shifts to the State to rebut that case. See Castaneda, 430

U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498; Alexander v. Louisiana, 405 U.S.

625, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972)(Once a prima facie case of

invidious discrimination is established, the burden of proof shifts to the State

to rebut the presumption of unconstitutional action by showing that

permissible racially neutral selection criteria and procedures have produced

the monochromatic result.). The State has met this burden.



Horry County follows a jury selection process based on statutory


3 The standard deviation is the measure of the predicted fluctuations

from the expected value.

p.19


STATE v. GEORGE



provisions, as well as on a plan submitted to, and approved by, the South

Carolina Supreme Court. The merging of the voter registration and driver's

license/identification card information is done by the South Carolina Budget

and Control Board. This list of potential jurors is prepared for the State

Election Commission, which forwards it to Horry County. This information,

in turn, is inputted into the local computer.





In Horry County, three jury commissioners -- composed of the Clerk of

Court, the Auditor, and the Treasurer -- gather and input their passwords

into the computer to request a jury list. The passwords must be entered by

each commissioner, and the commissioners do not know one another's

passwords. The computer generates a random listing of potential jurors,

based on the list forwarded by the State Election Commission. After the

computer generates the list of potential jurors, the commissioners send

notices to these individuals to appear before the court. In court, the Clerk

calls out the names of those on the list. The judge then qualifies the jurors,

determining if any excusals apply. Once the jurors are qualified, then the

Clerk starts reading sequentially the names left on the list, until reaching

the desired number of grand jurors (e.g. 18).



The commissioners testified that they could not alter the computer

functions. Additionally, they did not remove the names of any African

Americans from the jury list. The Clerk of Court testified that from 1991 to

1996, jurors were selected randomly through the use of the computer and

that none of the commissioners removed any persons from the list of jurors

or altered the computer list after it was printed. Further, no names were

added to the list. The circuit court found "beyond a reasonable doubt that

the procedure utilized by the jury commissioners in Horry County in the

selection of this Grand Jury follows exactly the law of this State."





Based on the evidence offered, the State has established that Horry

County uses race neutral selection criteria and procedures. In fact, the

system attempts to make the selection process as neutral and random as

possible. As the circuit court orally ruled: The "evidence and testimony in

this case is absolutely void of any inference or indication that any

skullduggery was used, that any abuse was used or that it was not racially

neutral. "





Thus, since George has not shown systematic exclusion of African

Americans from the Horry County grand jury, we conclude the circuit court's

order must be affirmed.





p.20


STATE v. GEORGE





CONCLUSION

Based on the foregoing, we AFFIRM the circuit court's order rejecting

George's claim of an equal protection violation.





FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.







P.21