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12/02/94 EARNEST JEROME HOGAN v. STATE

December 2, 1994

EARNEST JEROME HOGAN
v.
STATE



Appeal from Autauga Circuit Court. CC-90-146. John Bush, TRIAL JUDGE.

Rehearing Denied March 24, 1995. Certiorari Denied May 26, 1995. Released For Publication November 20, 1995.

Bowen, Presiding Judge. All Judges concur.

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

After being transferred from juvenile court to circuit court for prosecution as an adult, Earnest Jerome Hogan, the appellant, was indicted, along with codefendants Sylvester Ephraim and Nathaniel Gilder, for capital murder in the deaths of Lena and Napoleon Goodson. The appellant entered a guilty plea to the capital offense of murder committed during the course of a robbery.

A jury was empaneled, pursuant to Ala. Code 1975, § 13A-5-42, and the State proved the appellant's guilt of the capital offense beyond a reasonable doubt. The appellant waived jury participation in sentencing, and the circuit court, after conducting a hearing pursuant to Ala. Code 1975, § 13A-5-45, sentenced the appellant to life imprisonment without parole. On this direct appeal of his conviction, the appellant raises three issues, which he reserved for appeal prior to pleading guilty.

I

First, the appellant claims that blacks were underrepresented in the jury pool from which the grand jurors who indicted him were selected and that, consequently, the trial court erred in denying his motion to quash the indictment.

Randy Helms, Court Operations Supervisor at the Administrative Office of Courts (AOC), testified that Autauga County uses a one-step jury selection system in which AOC randomly selects jurors from a list of driver's license holders in the county. In July 1990, the master jury list for Autauga County consisted of 22,244 names. Of that number, 19,032 were white, 3,157 were black (14.19%), and 55 were of other minority groups. R. Vol.4 at 8-9. According to the 1980 census, blacks comprised 19.86% of the population of Autauga County.

Autauga Circuit Clerk Fred Posey testified that the grand jury that indicted the appellant was empanelled from an AOC-generated list of 175 jurors, 154 of whom were white and 21 of whom were black. R. Vol. 4 at 18. The appellant's grand jury was composed of 17 white persons and 1 black person. R. Vol 4 at 22.

We addressed all of the fair cross-section arguments made by the appellant in Sistrunk v. State, 630 So. 2d 147 (Ala.Cr.App. 1993):

"The Sixth Amendment requires that petit juries 'be drawn from a source fairly representative of the community.' Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690 (1975). When raising a claim under this requirement, a defendant 'has the burden of establishing a prima facie case of a "fair cross section" violation. Rayburn v. State, 495 So. 2d 733 (Ala.Crim.App. 1986).' Pierce v. State, 576 So. 2d 236, 241 (Ala.Cr.App. 1990), cert. denied, 576 So. 2d 258 (Ala. 1991). In Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), the United States Supreme Court held that a defendant seeking to establish a prima facie case of a violation of the fair cross-section requirement must demonstrate the following three elements:

"'(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.'

439 U.S. at 364, 99 S. Ct. at 668. While the appellant established that blacks are 'a "distinctive" group in the [Dale County] community,' see Lee v. State, 631 So. 2d 1059 (Ala.Cr.App. 1993), it is clear that he has ...


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