Cook v. State

Weltner, Justice,

concurring specially.

I concur in the judgment of affirmance, but I disagree with the approach followed in Division 11.

In my opinion, this issue should be governed by the statutory requirements of OCGA § 15-12-40 (a) (1), which require that jury panels be “a fairly representative cross-section of the intelligent and upright citizens of the county. ...”

The value of this rule is that it is simple to apply, and demands a *588proper result — independent of often chimerical questions such as motive, design, and pattern. Hence, the legality of the array is tested by comparing the composition of the pool to the composition of the county.

Decided March 7, 1986 Reconsideration denied April 1, 1986. Allen R. Hirons, for appellant. Thomas J, Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Assistant Attorney General, for appellee.

In this case, any disparity relative to the participation of black citizens is less than 5%, and the panel clearly meets the requirement of the statute. That being the case, there is no need to consider all of the other matters treated in Division 11 of the majority opinion.

Appendix.

Walker v. State, 254 Ga. 149 (327 SE2d 475) (1985); Mincey v. State, 251 Ga. 255 (304 SE2d 882) (1983); Castell v. State, 250 Ga. 776 (301 SE2d 234) (1983); Tucker v. State, 245 Ga. 68 (263 SE2d 109) (1980); Davis v. State, 241 Ga. 376 (247 SE2d 45) (1978); Stephens v. State, 237 Ga. 259 (227 SE2d 261) (1976); Spencer v. State, 236 Ga. 697 (224 SE2d 910) ((1976); Mitchell v. State, 234 Ga. 160 (214 SE2d 900) (1975).