Cooper v. State

352 Ga.App. 783

835 S.E.2d 724

COOPER

v.The STATE.

A19A1289

Court of Appeals of Georgia.

October 30, 2019

Lon Powell Kemeness, Tifton, for Appellant.

Clifford Paul Bowden, Zachary Layne Register, for Appellee.

Coomer, Judge.

Shay Patrick Cooper was convicted of one count of trafficking in illegal drugs and sentenced to 30 years in confinement. Cooper appeals his conviction arguing the trial court erred by not granting his motion challenging Tift County’s method of selecting prospective jurors. Cooper further contends the trial court erred by not applying the rule of lenity to his sentence and by not granting his motion for mistrial after a witness testified to improper character evidence. For the reasons that follow, we affirm in part and remand for resentencing.

1. Cooper first argues the trial court erred in denying his challenge to Tift County’s method of jury selection. Specifically, Cooper contends that Tift County failed to comply with the Georgia Supreme Court’s Jury Composition Rule (the "Jury Rule")¹ in the following three ways: (1) the clerk/vendor made no effort to check the addresses for undeliverable returned summonses; (2) the clerk improperly removed jurors from the venire; and (3) the vendor/clerk operated under an outdated local order.

In support of his argument, Cooper relies on our Supreme Court’s holding in Ricks v. State , 301 Ga. 171, 173-174 (1), 800 S.E.2d 307 (2017). In Ricks , our Supreme Court reversed a trial court’s order denying a defendant’s claim that the list from which Fulton County jurors were summoned was produced in a manner that violated the Jury Rule. 301 Ga. at 172, 800 S.E.2d 307. The Supreme Court found that instead of choosing venires as provided under the Jury Rule, the county produced its own lists created by its vendor based on outdated guidelines from a local jury management order. See id . at 179 (3) (a), 800 S.E.2d 307. The Supreme Court further noted that the testimony at the evidentiary hearing regarding how the county constructs its jury lists "was uncertain and incomplete" and that the county’s jury clerk and court administrator were not aware of the details of the county’s computerized jury selection system. See id . at 179 (3), 800 S.E.2d 307. The Supreme Court ultimately held that Fulton County had violated several aspects of the Jury Rule by allowing its vendor to use "legacy data" to add and remove names from its master jury lists, to eliminate potential duplicate records, and to inactivate names on the master jury list that it concluded were undeliverable based on the submission of all the addresses to the National Change of Address database. See id . at 188-193 (5) (a)-(e), 800 S.E.2d 307. We disagree with Cooper’s argument and find that the facts outlined in Ricks are distinguishable from those presented here.

In the present case, the trial court held an evidentiary hearing on Cooper’s motion challenging Tift County’s method of selecting jurors at which Bill Bennett, the jury vendor contracted by Tift County to maintain the county’s jury box database, testified regarding the procedures and methods used by the county to select and maintain its jury database. Bennett testified that he was aware of the Jury Rule and familiar with the Georgia Supreme Court’s ruling in Ricks v. State . Specifically, Bennett testified regarding the process Tift County uses to obtain and maintain its jury box database, and that Tift County’s method of selecting jurors was in compliance with the Jury Rule and applicable state law. Bennett explained the jury selection process and testified that after the Council of Superior Court Clerks (the "Council") obtains a list of registered voters from the Secretary of State’s office and a list of licensed drivers from the Department of Driver Services, the Council combines those two lists and purges the duplicates using a probabilistic matching algorithm. The results of combining both lists is the data that becomes the jury box for Tift County. As of the date of the hearing, Tift County’s jury database contained 32,001 records (the "master jury list").

Bennett also testified that as the county’s vendor, his company downloads the county’s master jury list directly from the Council’s server and that there are "[n]o legacy data, no duplication, no addition or deletions at all to that database that we download from the Council as required by the Jury Composition Act of 2011." Bennett stated that as individuals are summoned for jury duty, each time a person is excused or inactivated from jury service as allowed by the Jury Rule (e.g. person is a felon, summons returned as undeliverable, person moved out of county, person is over 70, etc.), the county clerk signs an affidavit to that effect and that information is later transmitted to the Council for use in compiling the master jury lists for the following year. See OCGA § 15-12-1.1 Bennett stated that Tift County’s exemption list does not permanently delete anyone from the master jury list, but instead allows his company to temporarily inactivate a person until the Council investigates that individual’s status further. Once Bennett’s company receives orders from the court requesting jurors for a term, jurors are randomly selected from the county’s master jury list.

(a) Undeliverable Address

Cooper contends that Tift County violated the Jury Rule by not making more of an effort to find the correct address for those summonses that are returned as undeliverable. However, Cooper does not identify what effort the Jury Rule requires on the part of a county clerk when a summons is returned as undeliverable. Section 5 (h) of the Jury Rule provides that

A clerk may subject the county master list, or lists of jurors selected for summoning, to processing performed by an authorized United States Postal Service ("USPS") National Change of Address ("NCOA") service provider.

However, there is no requirement that the county clerk do so or that failure to do so is tantamount to a violation of the Jury Rule.

At the evidentiary hearing, the county clerk, Clay Pate, testified that after he receives the list of undeliverable summonses from Bennett, he takes those names off the list for that trial week only and keeps a record of them in his office. Even though he stated that he had not submitted the names of the undeliverable summonses as part of the county exemption list to Bennett as of the date of the hearing, the Jury Rule does not specify a time frame for which this task must be done. Although Ricks states that "[t]he county may inactivate names on the annual county master jury list based on actual summons mail that is returned as undeliverable, where reasonable subsequent efforts fail to reveal a correct address[,]" neither the Supreme Court nor the Jury Rule explain what effort the county must expend to reveal a correct address. Ricks , 301 Ga. at 192 (5) (d), 800 S.E.2d 307. Aside from submitting those names in the county exception list to the Council, it does not appear the Jury Rule requires additional action. Accordingly, we find no error.

(b) Juror removal

Cooper next contends the county clerk improperly removed jurors from the venire. This argument is belied by the record. OCGA § 15-12-1.1 allows for county clerks to have the authority to defer, excuse, or inactivate jurors based on certain criteria. Section 5 (f)-(g) of the Jury Rule provides that

In accordance with a local jury management court order, a clerk may excuse or defer a juror: (i) Pursuant to OCGA § 15-12-1.1 ; ... (iii) Determined by the clerk as having an address that is undeliverable. A clerk may inactivate a juror: (i) Who is ineligible due to permanent mental or physical disability; (ii) Who is 70 years of age or older and has been granted inactivation as the result of his or her age; (iii) Who is identified by the clerk as being deceased; (iv) Who is identified by the clerk as ineligible due to having been declared mentally incompetent by order of a court.

The Jury Rule further

directs the Clerks Council to purge names contained in the county exception list that each county provides in March of each year, which includes records of persons who have been permanently excused or inactivated by the local court due to a mental or physical disability; persons over 70 who have requested permanent excusal; and persons identified by the local jury clerk as deceased, as convicted felons whose civil rights have not been restored, as individuals formally declared to be mentally incompetent, as having undeliverable addresses after reasonable efforts to locate such persons, as non-residents of the county, or as non-citizens.

Ricks , 301 Ga. at 189 (5), 800 S.E.2d 307.

At the evidentiary hearing, Bennett testified that jurors are temporarily inactivated from the master jury list when jury services notifies his company that the juror is a felon, has moved out of the county, the summons was returned undeliverable, the juror files an over 70 affidavit, the juror is a student, or the juror has an illness that will prevent jury service. Inactivated jurors are not deleted from the master jury list, but their information is provided to the Council who then determines the status of the juror. Bennett testified that all of Tift County’s temporary inactivations were based on exemptions allowable under OCGA § 15-12-1.1. Unlike Ricks , where the vendor would inactivate names based on its submission of addresses to the National Change of Address database without following the specific protocol outlined in the Jury Rule, here the process of inactivating names from the jury lists complies with the guidelines expressed in the rule. See Ricks , 301 Ga. at 192 (5) (d), 800 S.E.2d 307 ("The county may inactivate names on the annual county master jury list based on actual summons mail that is returned as undeliverable[.]"). Thus, we find no error.

(c) Local Order

Cooper next argues that Tift County failed to comply with the Jury Rule because it operated under an outdated...