665 S.W.2d 304 (Ky. 1983), Ford v. Commonwealth

Citation665 S.W.2d 304
Opinion JudgeGANT, Justice.
Party NameLouis M. Parker FORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
AttorneyJack Emory Farley, Public Advocate, Kevin McNally, M. Gail Robinson, Asst. Public Advocates, Frankfort, for appellant. Steven L. Beshear, Atty. Gen., Mary D. Schoening, Asst. Atty. Gen., Frankfort, for appellee.
Judge PanelLEIBSON, Justice, dissenting.
Case DateDecember 22, 1983
CourtSupreme Court of Kentucky

Page 304

665 S.W.2d 304 (Ky. 1983)

Louis M. Parker FORD, Appellant,

v.

COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky

December 22, 1983

Page 305

Rehearing Denied March 29, 1984.

Page 306

Jack Emory Farley, Public Advocate, Kevin McNally, M. Gail Robinson, Asst. Public Advocates, Frankfort, for appellant.

Steven L. Beshear, Atty. Gen., Mary D. Schoening, Asst. Atty. Gen., Frankfort, for appellee.

GANT, Justice.

Appellant was convicted of capital murder in the death of Susanne Schick, which murder occurred as a result of beating and stabbing on September 11, 1980. At the time of the murder, appellant was an inmate at LaGrange Reformatory but was housed in a dormitory in Frankfort and working as a trusty about the grounds of the capital and the governor's mansion. The murder occurred in the immediate vicinity of the dormitory and the victim's home near there. The appellant was sentenced to life imprisonment.

The other facts of this case will be discussed as necessary if they pertain to issues presented for argument by the appellant.

GRAND JURY SELECTION

Appellant was indicted in Franklin County, the county of the offense, and he raises several issues concerning the composition of the grand jury, contending that the pool from which the grand jury was selected in that county did not represent a fair cross section of the community. He complains that women, young adults and college students were underrepresented on the panel. It should be first noted that the grounds for challenge of the composition of a grand jury panel lie in the equal protection clause of the Fourteenth Amendment and not in the due process requisites of the Fifth and Sixth Amendments. See Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). Inasmuch as the appellant is a male penitentiary inmate, over 50 years of age, his complaint that women, young adults and college students were underrepresented on the panel does not merit our consideration.

However, as appellant is a black, we must examine appellant's complaint of underrepresentation by nonwhites. There is absolutely no showing herein, by any direct evidence whatsoever, of any racial discrimination in the method of selection of grand jurors. However, the federal decisions have enshrined the statistician on the throne of expertise, and it is on statistical data alone that the appellant relies. See Castaneda v. Partida, supra. In so relying, the appellant carries the burden to establish a prima facie case under the guidelines set out in the federal cases, and an excellent dissertation on that burden is contained in Moultrie v. Martin, 690 F.2d 1078, 1081 (4th Cir.1982):

In order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. 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. Hernandez v. Texas, 347 U.S. 475, 478-479, 74 S.Ct. 667, 670, 671, 98 L.Ed. 866 (1954). Next the degree of underrepresentation must

Page 307

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. (Case citations omitted). 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. (Citation omitted). 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. (Citations again omitted). 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 the case.

As heretofore stated, the appellant has taken the first step because he is black, and thus a member of a "recognizable, distinct class, singled out for different treatment under the laws." However, striding up the next two steps is fraught with opportunity to trip when employing raw statistical data. In the case before us, the appellant has exhibited two distinct stumbling blocks. First, his statistical data was based on random sampling of jury panels for a period of two years, which period we do not feel constitutes a period of significance such as would satisfy the directives of Moultrie and Castaneda, supra. Additionally, the basis for comparison between the number of blacks contained in the random samples was the U.S. census for 1970, which furnished data on the total population of the county, without regard for jury eligibility. This comparison was specifically condemned in Moultrie v. Martin, supra, in which the court stated:

First, the petitioner utilized the percentage of blacks in Colleton County (47%) as the statistic for comparison with the percentage of blacks actually on the grand juries. The use of this statistic for this purpose is inappropriate because the grand jury membership was based on the county voting rolls.

KRS 29A.040, as then in effect, directed that the master list from which names of prospective jurors shall be selected shall consist of the voter registration lists and the property tax rolls for the county. We have been furnished with no statistics reflecting black voters or black property owners, so there is no basis upon which we can apply any formula reflecting a standard deviation analysis and hypothesis testing. See Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), and Moultrie v. Martin, supra.

Even should we accept the period of two years as significant or accept the census report as a statistical basis for comparison, the appellant has failed to make a prima facie case. As the Moultrie court stated:

When a litigant seeks to prove his point exclusively through the use of statistics, he is borrowing the principles of another discipline, mathematics, and applying these principles to the law. In borrowing from another discipline, a litigant cannot be selective in which principles are applied. He must employ a standard mathematical analysis. Any other requirement defies logic to the point of being unjust.

In the instant case, the appellant utilized a statistical expert, who employed the standard mathematical analyses and who testified that none of the analyses for race "reached significance."

In passing, appellant contends that KRS 29A.040 is unconstitutional on the ground that many otherwise eligible jurors are excluded because they do not register to vote nor do they own property. No authority is cited other than a report on a project of the League of Women Voters, referred to in 2 Black L.J., 164, 165 (1972). It is our opinion that KRS 29A.040 is constitutional, representing an effective manner by which to insure representative jury panels from segments of the community. Cf. Sims v. Georgia, 389 U.S. 404, 88 S.Ct.

Page 308

523, 19 L.Ed.2d 634 (1967), and Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967).

Appellant's attempt to place the stamp of discrimination by reference to the color (white) of the jury commissioners, who are selected by circuit judges, and of grand jury foremen, who are elected by the other members of their group, does not contain either substance or merit.

PETIT JURY SELECTION

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39 practice notes
  • 600 N.E.2d 764 (Ohio App. 4 Dist. 1991), 1676, State v. Lewis
    • United States
    • Ohio Court of Appeals of Ohio
    • August 22, 1991
    ...v. Harris (C.A.2, 1981), 666 F.2d 782; State v. Rupe (1987), Page 768 108 Wash.2d 734, 743 P.2d 210; Ford v. Commw. of Ky. (Ky.1984), 665 S.W.2d 304. Argument is made under the second assignment of error that the court erred in allowing the state to impeach its witness, Paris Thomas, by use......
  • 580 A.2d 942 (Vt. 1990), 89-260, State v. Pelican
    • United States
    • Vermont Supreme Court of Vermont
    • June 29, 1990
    ...finding. With few exceptions, both state courts, see, e.g., Thomas v. State, 443 N.E.2d 1197, 1199 (Ind.1983); Ford v. Commonwealth, 665 S.W.2d 304, 308 (Ky.1983); Commonwealth v. Szczuka, 391 Mass. 666, 671, 464 N.E.2d 38, 42 (1984); State v. Perkins, 219 Neb. 491, 497, 364 N.W.2d 20, 25 (......
  • 669 S.W.2d 519 (Ky. 1984), McQueen v. Commonwealth
    • United States
    • Kentucky Supreme Court of Kentucky
    • February 16, 1984
    ...Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). We have disposed of this argument in Ford v. Commonwealth, Ky., 665 S.W.2d 304 (1983), and note in passing that both this case and Ford involved communities in which colleges and universities are located, which has a te......
  • Allison v. Commonwealth, 020609 KYCA, 2006-CA-002294-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • February 6, 2009
    ...This failure is fatal to her argument. See id. ; Commonwealth v. McFerron, 680 S.W.2d 924, 927 (Ky. 1984); Ford v. Commonwealth, 665 S.W.2d 304, 308 (Ky. 1983). Allison offered the trial court only a general assertion that the percentage of African-Americans in the jury pool grossly underre......
  • Request a trial to view additional results
39 cases
  • 600 N.E.2d 764 (Ohio App. 4 Dist. 1991), 1676, State v. Lewis
    • United States
    • Ohio Court of Appeals of Ohio
    • August 22, 1991
    ...v. Harris (C.A.2, 1981), 666 F.2d 782; State v. Rupe (1987), Page 768 108 Wash.2d 734, 743 P.2d 210; Ford v. Commw. of Ky. (Ky.1984), 665 S.W.2d 304. Argument is made under the second assignment of error that the court erred in allowing the state to impeach its witness, Paris Thomas, by use......
  • 580 A.2d 942 (Vt. 1990), 89-260, State v. Pelican
    • United States
    • Vermont Supreme Court of Vermont
    • June 29, 1990
    ...finding. With few exceptions, both state courts, see, e.g., Thomas v. State, 443 N.E.2d 1197, 1199 (Ind.1983); Ford v. Commonwealth, 665 S.W.2d 304, 308 (Ky.1983); Commonwealth v. Szczuka, 391 Mass. 666, 671, 464 N.E.2d 38, 42 (1984); State v. Perkins, 219 Neb. 491, 497, 364 N.W.2d 20, 25 (......
  • 669 S.W.2d 519 (Ky. 1984), McQueen v. Commonwealth
    • United States
    • Kentucky Supreme Court of Kentucky
    • February 16, 1984
    ...Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). We have disposed of this argument in Ford v. Commonwealth, Ky., 665 S.W.2d 304 (1983), and note in passing that both this case and Ford involved communities in which colleges and universities are located, which has a te......
  • Allison v. Commonwealth, 020609 KYCA, 2006-CA-002294-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • February 6, 2009
    ...This failure is fatal to her argument. See id. ; Commonwealth v. McFerron, 680 S.W.2d 924, 927 (Ky. 1984); Ford v. Commonwealth, 665 S.W.2d 304, 308 (Ky. 1983). Allison offered the trial court only a general assertion that the percentage of African-Americans in the jury pool grossly underre......
  • Request a trial to view additional results