Lawrence Rice has been charged with the murders of Connie and Ethan Mincher and with related crimes. The State has given notice of its intent to seek the death penalty. This Court granted Rice’s application for interim review and directed the parties to address the following three issues: whether the trial court erred in denying Rice’s motion concerning the composition of the grand and traverse jury lists; whether the trial court erred in ruling that the pretrial deposition testimony of Trevor Mincher would be admissible at trial; and whether the trial court erred in refusing to allow a second pretrial deposition of Lillian Heaton. We find no error and, therefore, affirm. 1. Rice contends that the lists from which his grand jury was drawn and from which his traverse jury will be drawn are unconstitutional because they under-represent Hispanic persons. Such jury composition claims, whether based on the Fourteenth Amendment’s equal protection clause, the Sixth Amendment’s fair cross-section requirement, OCGA § 15-12-40, or the Unified Appeal Procedure, require both a showing that the group which allegedly is under-represented is a distinctive, cognizable group in the community and a showing of actual under-representation. See Ramirez v. State , 276 Ga. 158 575 SE2d 462 2003. We need not address the trial court’s finding regarding whether Hispanic persons are a cognizable group in Cobb County in order to decide Rice’s jury composition claim, because we find that he failed to show any actual under-representation of Hispanic persons.
Rice presented expert testimony by a statistician regarding the representation of Hispanic persons on Cobb County’s jury lists. The expert testified that he had undertaken a “surname review,” which he testified was “a standard census bureau technique” for estimating the number of Hispanic persons in a given population. The expert concluded as follows: There’s underrepresentation if you are using the total population numbers, and there’s not if you are using adjusted-for-citizenship numbers for Hispanic or Latinos. A review of the exhibits admitted at the hearing supports this conclusion and shows, in fact, a slight over -representation of Hispanic persons who are citizens in comparison to the total population of citizens in Cobb County. Because Rice’s own expert testimony showed that there was no under-representation of Hispanic citizens , the trial court did not err in denying Rice’s jury composition claims regarding that group. See Smith v. State , 275 Ga. 715, 725 5 571 SE2d 740 2002 holding that citizenship is properly considered in jury composition claims.
