☢ test - Í

Guzman v. State, 287 Ga. 759, 700 S.E.2d 340 (September 20, 2010). Defendant’s malice murder conviction affirmed. “‘[A]ny challenge to the composition of a panel of traverse jurors must be made when the panel is first put upon the accused, or there shall be a waiver of the right to contest its composition.’ Holsey v. State, 235 Ga. 270(2) (219 S.E.2d 374) (1975). ‘[A] jury is “put upon” a defendant at the time that the jury array is seated and voir dire commences.’ Guest v. State, 186 Ga.App. 318(1) (367 S.E.2d 105) (1988), quoting Spencer v. Kemp, 781 F.2d 1458, 1463 (11 th Cir., 1986). ‘[I]n the absence of a timely trial court directive to the contrary, a challenge to the traverse jury array is timely filed any time before the voir dire begins .’ Isaacs v. State, 259 Ga. 717(3a) (386 S.E.2d 316) (1989).” Williams v. State, 287 Ga. 735, 699 S.E.2d 25 (June 28, 2010). Interim review of defendant’s capital murder prosecution; rejects defendant’s contention that jury box balanced according to 2000 decennial census can be attacked by showing substantial discrepancy with latest census estimates for county African-American population. 1. Fourteenth Amendment Equal Protection argument fails because defendant can’t show that a box balanced according to the latest Decennial Census, even ten years after that census, was the product of a process that “was susceptible of abuse or was not racially neutral,” quoting Ramirez v. State, 276 Ga. 158 (575 S.E.2d 462) (2003). “To make a prima facie claim directly under the equal protection clause of the Fourteenth Amendment, appellant ‘was required to demonstrate that African-American persons were a recognizable, distinct class of persons, that they were under-represented over a significant period of time or under other circumstances which raised an inference of discrimination, and that the selection procedure employed was susceptible of abuse or was not racially neutral such that any presumption of discrimination raised by the statistics was supported. [Cits.]’ Ramirez v. State, supra, 276 Ga. at 159(1)(b). We have noted that the Decennial Census is the only ‘comprehensive county-wide head count’ available to jury commissions and that jury commissions throughout the State of Georgia need ‘a valid population benchmark’ to guide them in ensuring adequate representation of various groups of persons. Smith v. State, 275 Ga. 715, 719(3) (571 S.E.2d 740) (2002). Accordingly, this Court, through the Unified Appeal Procedure, has continued to mandate the statewide use of this comprehensive source of data as an objective, readily-implemented test of whether cognizable groups are adequately represented on jury source lists. Because use of the Decennial Census as a benchmark has been adopted by this Court for the very purpose of promoting adequate representation of cognizable groups and because the demographic changes at issue in appellant's case ‘were obviously beyond the control of the county's jury commissioners,’ Ramirez v. State, supra at 161(1)(b), we conclude that appellant has failed to show that the jury selection procedure in his case ‘was susceptible of abuse or was not racially neutral.’ Id.” 2. Sixth Amendment “fair cross-section” argument fails , athough defendant shows significant under-representation of African-American citizens, because of significant state interest in using Decennial Census as benchmark. “This Court has … held that a fair cross-section is also guaranteed by OCGA § 15-12-40 under standards ‘comparable if not identical’ to Sixth Amendment standards. Id. To make a prima facie claim of a fair cross-section violation, a defendant must show ‘(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group [on the jury source list] is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under representation is due to systematic exclusion of the group in the jury selection process. [Cits.]’ Morrow v. State, 272 Ga. 691, 692(1) (532 S.E.2d 78) (2000). A fair cross-section claim is ‘almost identical’ to a claim raised directly under the equal protection clause of the Fourteenth Amendment, ‘with the one prominent exception being that the claimant need not demonstrate any intent to under-represent a cognizable group. [Cit.]’ (Emphasis in original.) Ramirez v. State, supra at 161-162(1)(c). However, ‘ a prima facie showing of a fair cross-section violation can be rebutted if the State can demonstrate that “attainment of a fair cross section (is) incompatible with a significant state interest.” [Cit.]’ Id. at 162(1)(c).” “Although, in some instances, that procedure may create temporary, self-rectifying anomalies as Decennial Census reports grow old, we conclude that the ill done by those temporary anomalies is outweighed by the other benefits of the procedure. Based upon our careful consideration of the issue, we hold that a continued adherence to the requirements of the Unified Appeal Procedure regarding the balancing of cognizable groups to match the most- recent Decennial Census is justified by a sufficiently-significant state interest. Therefore, we conclude that appellant's prima facie showing of a fair cross-section violation has been rebutted.” Melton dissents, criticizing sole reliance on Decennial Census. Accord, Foster v. State , 288 Ga. 98, 701 S.E.2d 189 (November 1, 2010) (same jury lists); Greene v. State , 312 Ga.App. 666, 722 S.E.2d 77 (November 17, 2011) ( citing Williams to affirm defendant’s DUI conviction; “Although Greene correctly maintains that the UAP does not apply to misdemeanor cases, we see no possible rationale for concluding that the State's use of the Decennial Census to provide a "comprehensive and objective standard" to promote adequate representation would prove acceptable in capital cases, but not so in misdemeanor cases.”). MacBeth v. State, 304 Ga.App. 466, 696 S.E.2d 435 (June 17, 2010). In defendant’s DUI prosecution, 1. state court erred by ruling that it had no jurisdiction to consider defendant’s challenge to the array. “[I]n its order transferring MacBeth's appeal back to this Court, the Georgia Supreme Court held that this matter ‘does not involve a mandamus action brought