II. In Lee v. State, 631 So.2d 1059 (Ala.Cr.App. 1993), and Locke v. State, 631 So.2d 1062 (Ala.Cr.App. 1993), the Court of Criminal Appeals held that a criminal defendant's constitutional right to equal protection under the law has been violated if racial discrimination occurred in the selection of the foreperson of the grand jury that returned the indictment and that that error requires that the indictment be quashed. Quoting from Johnson v. Puckett, 929 F.2d 1067 (5th Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991), the Court of Criminal Appeals also held that because the denial of equal protection caused by such discrimination is an injury to society as a whole, it does not matter whether the defendant is a member of the racial group discriminated against.
"To prove a prima facie case of discrimination in the selection of grand jury forepersons a petitioner must show: 1) that the group alleged to be discriminated against is a distinct group; 2) that the degree of underrepresentation is significant over a period of time; and 3) that the selection procedure is susceptible to abuse or is not race-neutral. Lee v. State, 631 So.2d 1059, 1060 (Ala.Cr.App. 1993), and Locke v. State, 631 So.2d 1062 (Ala.Cr.App. 1993). See also Johnson v. Puckett, 929 F.2d 1067, 1071 (5th Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 274, 116 L Ed.2d 226 (1991).
Specifically, he contends that Monroe County discriminates against blacks in the selection of the foremen for the grand jury. This very issue, concerning the same county, was recently addressed by this court in Lee v. State, 631 So.2d 1059 (Ala.Cr.App. 1993). (Montiel, J., dissenting with opinion).
Delester Lee appeals from his second conviction for the murder of Howard Stabler, and his sentence to life imprisonment. In Lee v. State, 631 So.2d 1059 (Ala.Cr.App. 1993), this court reversed Lee's first conviction on this charge. In the instant appeal, Lee raises five issues for review.
Such a selection of a grand jury foreperson is prima facie discriminatory and the indictments are voidable. See Lee v. State [ 631 So.2d 1059], No. CR-91-294 (Ala.Cr.App. Mar. 5, 1993)." Petition for Writ of Mandamus filed October 1, 1993. It should be noted that the respondent circuit judge involved in this case is not the same circuit judge who appointed the foreman of the grand jury.
In those cases, the victims were viciously cut with knives on and around their throats and remained alive during, and for a short time after, the attacks. McNair has also raised here an additional issue that was not presented to either the trial court or the Court of Criminal Appeals. Citing Lee v. State, 631 So.2d 1059 (Ala.Crim.App. 1993), McNair contends that no black person has presided over a grand jury in Henry County for the past 20 years. In a two-paragraph argument, he challenges the constitutionality of the method that was used in selecting the presiding juror of the grand jury that returned the indictment against him in this case.
The Alabama Supreme Court in Pace refused to find plain error in the discriminatory selection of a foreperson of an otherwise properly constituted grand jury because the role of the foreperson in almost entirely ministerial. This Court held in Lee v. State, 631 So.2d 1059 (Ala.Crim.App. 1993), and Locke v. State, 631 So.2d 1062 (Ala.Crim.App. 1993), that in order to establish a prima facie case of racial discrimination in the selection of a grand jury foreperson, the defendant must show: (1) that the group alleged to be discriminated against is a distinct group; (2) that the degree of under representation is significant over a period of time; and (3) that the selection procedure is susceptible to abuse or is not race-neutral. We note that this Court has used this test when determining whether there was gender discrimination in the selection of a grand jury foreperson.
Rule 15.2(c), Ala. R.Crim. P. Campbell's attempt to avoid the waiver on grounds that this court's decision in Pace v. State, [Ms. CR-93-740, Sept. 27, 1996] ___ So.2d ___ (Ala.Cr.App. 1996), was a drastic departure from established law, fails because Pace discussed 1993 decisions regarding proof of discrimination in the selection of grand jury forepersons. Lee v. State, 631 So.2d 1059 (Ala.Cr.App. 1993); Locke v. State, 631 So.2d 1062 (Ala.Cr.App. 1993). Further, Campbell cited these same precedents in his motion to set aside his conviction.
This court has stated that in order to establish a prima facie case of discrimination in the selection of the grand jury foreperson the appellant must demonstrate " '1) that the group against whom discrimination is asserted is a distinct class; 2) the degree of underrepresentation by comparing the proportion of the group in the total population to the proportion called to serve as foreman over a significant period of time; and 3) that the selection procedure is susceptible to abuse or is not racially neutral.' " Lee v. State, 631 So.2d 1059, 1060 (Ala.Cr.App. 1993), quoting Johnson v. Puckett, 929 F.2d 1067 (5th Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991). The appellant now challenges the new selection process because at the time of the new indictment the new procedure had yet to result in a black grand jury foreperson.
To prove a prima facie case of discrimination in the selection of grand jury forepersons a petitioner must show: 1) that the group alleged to be discriminated against is a distinct group; 2) that the degree of underrepresentation is significant over a period of time; and 3) that the selection procedure is susceptible to abuse or is not race-neutral. Lee v. State, 631 So.2d 1059, 1060 (Ala.Cr.App. 1993), and Locke v. State, 631 So.2d 1062 (Ala.Cr.App. 1993). See also Johnson v. Puckett, 929 F.2d 1067, 1071 (5th Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991).