U.S. v. Yazzie, 80-1429

• Decision Date: 25 January 1982
• Docket Number: No. 80-1429,80-1429
• Citation: 660 F.2d 422
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. Terry YAZZIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 422

660 F.2d 422

The UNITED STATES of America, Plaintiff-Appellee, v. Terry YAZZIE, Defendant-Appellant.

No. 80-1429.

United States Court of Appeals Tenth Circuit.

Argued and Submitted July 14, 1981.

Decided Sept. 18, 1981.

Certiorari Denied Jan. 25, 1982.

See 102 S.Ct. 1282.

R. Raymond Twohig, Jr., Asst. Federal Public Defender for the District of New Mexico, Albuquerque, N. M., for defendant-appellant.

Stanley Kotovsky, Jr., Asst. U. S. Atty. for the District of New Mexico, Albuquerque, N. M. (R. E. Thompson, U. S. Atty. for the District of New Mexico, Albuquerque, N. M. with him on the brief), for plaintiff-appellee.

Before BARRETT and SEYMOUR, Circuit Judges, and BROWN, ^* Senior District Judge.

WESLEY E. BROWN, Senior District Judge.

This is a criminal appeal arising out of appellant Yazzie's conviction by a jury of voluntary manslaughter in the stabbing death of David James, in violation of 18 U.S.C.A. § 1153 and 1112(a). Both Yazzie and James were Indians, and the crime occurred within the Navajo Indian Reservation. Though appellant was indicted by the grand jury on the charge of second-degree murder, the jury acquitted him of that charge, and found him guilty only of the lesser included offense of voluntary manslaughter. On appeal, five issues were presented: The first two concern the composition of the grand jury which indicted Yazzie, and the petit jury which convicted him, while the last three concern alleged errors in the instructions given by the district court. We address each of the issues in turn.

I. The Composition of the Grand and Petit Juries

Prior to trial, defense counsel moved to dismiss the indictment on the basis that the underrepresentation of Indians on the grand and petit jury venires denied Yazzie his rights to equal protection of the laws under the Fifth Amendment , and to juries drawn from a fair cross section of the community under the Sixth Amendment. After evidentiary hearings on February 8 and 25, 1980, the district court found that Yazzie had not made out a prima facie case of constitutional violations in the jury selection process, and denied the motion to dismiss. The evidence presented at these hearings consisted primarily of testimony by the clerk of the United States District Court regarding operation of the jury selection plan used in the district, testimony by an expert in the field of statistics, and testimony from various county clerks, and the director of elections for New Mexico regarding voter registration in the state.

The clerk of the district court testified that the jury selection plan used in the District of New Mexico had been adopted by the district court and approved by the Judicial Conference of the Tenth Circuit, as required by 28 U.S.C.A. § 1863. Under the plan and pursuant to the Jury Selection and Service Act of 1968, 28 U.S.C.A. § 1861, et seq., as amended, a master jury wheel is reconstituted once every four years by obtaining from the county clerks a list of all the registered voters in the state, determining the number of prospective jurors needed, and dividing the number of registered voters available by the number needed, to arrive at an "increment". A starting number is then drawn at random by one of the judges of the district in open court, and the person whose name corresponds to that number on the registered voter list, and persons whose names fall at successive increments, are sent a qualification questionnaire. When the questionnaires are completed and returned, the names of those persons who are not disqualified or excused are placed in the qualified jury wheel to be summoned as needed. The names of those to be actually summoned to serve on a grand or petit jury are randomly selected from the qualified jury wheel by using the same procedure described above for establishing the master wheel. The clerk of the district court also testified that under his direction, a survey of all of the returned questionnaires had been performed, categorizing them by race, and comparing the percentages of persons found qualified as prospective jurors with the percentages of persons of that race in the general population, according to the 1970 Census. These statistics were the basis for the expert testimony and the decision of the district court. [ ²] The county clerks and the director of elections for the state testified that no discrimination was practiced in registration of voters, that no one was denied the right to register, including Indians, and that in fact the registration of Indian voters was being encouraged by the state through a minority registration program, and, in some counties, by the appointment of deputy registrars in Indian pueblos and reservations.

The United States Supreme Court, in two recent cases, has clarified the elements of prima facie showings for both equal protection and fair-cross-section challenges to jury selection. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), dealing with an equal protection challenge in the context of grand jury selection, stated at 430 U.S. 494-495, 97 S.Ct. 1280, 51 L.Ed.2d 510-511:

The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. This method of proof, sometimes called the "rule of exclusion," has been held to be available as a method of proving discrimination in jury selection against a delineated class. Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case. (Citations omitted).

In order to establish a prima facie violation of the fair-cross-section requirement, as set forth in Duren v. Missouri, 439 U.S. 357 at 364, 99 S.Ct. 664 at 668, 58 L.Ed.2d 579 at 586-587 (1979):

... the 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 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.

While equal protection and fair-cross-section cases are not entirely analogous, as noted in footnote 26 in the Duren decision, 439 U.S. at 368, 99 S.Ct. at 670, 58 L.Ed.2d at 589, both violations require a showing of a distinctive group and a substantial underrepresentation of that group in jury venires before a prima facie case is established and the burden of proof shifts.

In United States v. Test, 550 F.2d 577 (10th Cir. 1976), this Court considered statutory and constitutional challenges to the jury selection plan for the District of Colorado, which, having been adopted under the federal Jury Selection and Service Act, supra, was very similar to the one here in question. Although the Test case was decided prior to Castaneda and Duren, we find that those recent Supreme Court decisions have reinforced the reasoning in Test, and that it controls the case before us.

The state jury selection procedures under scrutiny in Castaneda and Duren did not have the definitive requirement of the federal Jury Selection and Service Act, supra. We need not repeat here the constitutional and statutory standards set forth in Test because those standards apply as well to the District of New Mexico as to the District of Colorado.

We do repeat what was said in Test concerning the practical operation of a jury system.

Defendants also overlook the fact that in the day-to-day operation of the jury system, the criminal defendant is not indicted or convicted by the community at large, but rather by relatively small groups of 12 or 23 persons selected to represent the community on petit and grand juries. In assessing whether a given defendant's constitutional or statutory rights have been violated through the operation of a jury selection process, the proper focus of inquiry must therefore be the impact of the challenged process on the grand and petit juries. This assessment must be made in light of the well-settled rule that a defendant has no right to a grand or petit jury of any given demographic composition, but only to jury panels selected from a source "reasonably representative" of the community. E. g., Taylor v. Louisiana, supra, 419 U.S. (552) at 538, 95 S.Ct. 692 (at 701, 42 L.Ed.2d 690). Alexander v. Louisiana, supra, 405 U.S. (625) at 628, 92 S.Ct. 1221 (at 1224, 31 L.Ed.2d 536). It must likewise be remembered that our jury system of necessity deals with living individuals rather than fractional percentage persons. Changes in the demographic composition of juries and jury panels can therefore only be made by the addition or deletion of one or more individuals. Both Congress and the courts have been mindful of this latter fact in concluding that only "gross" or "marked" disparities or "substantial" departures from a "fair cross section" of the community require judicial intervention.

The Test court examined several modes of comparison to determine proportional representation, including absolute disparity, comparative disparity, and the absolute impact standard [ ³], and held that an absolute disparity of approximately 4% was insufficient to establish a prima facie case of systematic exclusion.

There is no question that Indians constitute a distinctive group in the community, so our analysis begins with the second prong of each violation alleged, that is whether...