Singleton v. Lockhart, s. 86-2263

• Decision Date: 09 May 1989
• Docket Number: Nos. 86-2263,86-2289,s. 86-2263
• Citation: 871 F.2d 1395
• Parties: Charles Laverne SINGLETON, Appellant, v. A.L. LOCKHART, Commissioner, Arkansas Department of Correction, Appellee. Charles Laverne SINGLETON, Appellee, v. A.L. LOCKHART, Commissioner, Arkansas Department of Correction, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1395

871 F.2d 1395

Charles Laverne SINGLETON, Appellant, v. A.L. LOCKHART, Commissioner, Arkansas Department of

Correction, Appellee.

Charles Laverne SINGLETON, Appellee, v. A.L. LOCKHART, Commissioner, Arkansas Department of

Correction, Appellant.

Nos. 86-2263, 86-2289.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 18, 1988.

Decided April 10, 1989.

Rehearing and Rehearing En Banc Deinied May 9, 1989.

Jeff Rosenzweig, Little Rock, Ark., for appellant Singleton.

Jo Ann Goldman, Little Rock, Ark., for appellant Perry.

Clint Miller, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before JOHN R. GIBSON, FAGG, and WOLLMAN, Circuit Judges.

WOLLMAN, Circuit Judge.

Charles Laverne Singleton appeals the district court's order denying in part his petition for habeas corpus relief under 28 U.S.C. Sec. 2254 (1982). The State cross-appeals the court's order vacating Singleton's death sentence. We affirm the order upholding Singleton's conviction, reverse the order vacating the death sentence, and remand for reinstatement of the death sentence.

I.

On the evening of June 1, 1979, a man entered York's Grocery Store in Hamburg, Arkansas, stabbed the storekeeper, Mary Lou York, twice in the neck, and took an undetermined amount of money. Before York died on the way to the hospital, she told several witnesses that Singleton was the man who had stabbed her.

In July of 1979, a jury in Ashley County, Arkansas, convicted Singleton of capital murder for committing a homicide during the course of a felony. See Ark.Stat.Ann. Sec. 41-1501. ¹ In a separate penalty phase trial, the jury found a single aggravating circumstance--that pecuniary gain was a motive for the murder--and sentenced Singleton to death by electrocution. See Ark.Stat.Ann. Secs. 41-1302, 41-1303. The Supreme Court of Arkansas affirmed, ² Singleton v. State, 274 Ark. 126, 623 S.W.2d 180, 183 (1981), cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458 (1982), and denied, without opinion, Singleton's petition for post-conviction relief under Ark.R.Crim.P. 37. The United States Supreme Court denied certiorari. Singleton v. Arkansas, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1983).

In 1982, Singleton filed a petition for writ of habeas corpus with the district court. On February 14, 1985, he filed a supplement to his petition, challenging his death sentence under Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). The court affirmed Singleton's conviction for capital murder, but vacated his death sentence in accordance with Collins. See Singleton v. Lockhart, 653 F.Supp. 1114, 1117 (E.D.Ark.1986).

On appeal, Singleton raises two major issues: (1) he was denied his constitutional right to a jury selected from a venire representing a fair cross-section of the community where he was tried; and (2) he was denied his constitutional right to effective assistance of counsel. The State also raises two issues: (1) the district court erred in retroactively applying Collins; and (2) the court erred in prohibiting the State from retrying the penalty phase of Singleton's trial. The case was submitted November 13, 1987. On January 13, 1988, the United States Supreme Court decided Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). We requested additional briefing and argument on the Collins issue in the light of Lowenfield, and the case was resubmitted following reargument on August 18, 1988.

II.

At the time of Singleton's trial, Ashley County used a jury commissioner system to create a master list of prospective jurors. The seven jury commissioners in Ashley County, six of whom were white and one of whom was black, selected prospective jurors from the voter registration lists. Two of the jury commissioners acknowledged at the habeas hearing that they had selected some potential jurors on the basis of what those commissioners believed to be their good character. After the commissioners compiled a list of eight hundred names, either the trial judge or the clerk of the court chose a venire by pulling numbered disks from a box. The disks were numbered one to eight hundred and corresponded to the names on the master list.

The first venire panel at Singleton's trial consisted of forty-three people summoned by mail after being selected as described above. When this panel was exhausted, another thirty-three persons were impaneled. The second group was summoned by telephone during the voir dire of the first group as soon as it became apparent that the original panel would be insufficient to seat a jury. They were telephoned by the local deputy sheriff, who testified at the habeas hearing that she called people in the order in which their names appeared on the list. The second group appeared within a matter of hours.

Singleton claims that two distinct groups of Ashley County residents, blacks and a somewhat vague "economic" class consisting of people without phones and people who are not ordinarily home during the day, were unfairly underrepresented on the venire from which his jury was selected, in violation of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Singleton does not challenge the composition of the venire on equal protection grounds and does not contest the constitutionality of the Arkansas jury commissioner system or the petit jury that tried him.

The State first argues that Singleton is procedurally barred from challenging the racial and economic composition of the venire because he failed to make a timely objection at trial, as required by Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508-09, 53 L.Ed.2d 594 (1977). An examination of the record, however, reveals that Singleton's trial counsel made a timely objection to the process by which the venire was selected on the ground that it excluded certain sectors of the population. Although Singleton's counsel specifically referred to those Ashley County residents without phones, we will treat his motion as having objected to the discriminatory exclusion of any identifiable group, including blacks.

Under the sixth amendment, as applied to the states by the due process clause of the fourteenth amendment, criminal defendants have a right to be tried "by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const., amend. VI. The Supreme Court has interpreted this to mean that the venire from which a jury is chosen must be a "representative cross section of the community" where the defendant is tried. Taylor, 419 U.S. at 528, 95 S.Ct. at 696. A venire selection process that "systematically exclude[s] distinctive groups in the community" will result in a venire that is not fairly representative. Id. at 538, 95 S.Ct. at 702.

For a defendant to establish a prima facie case of discrimination in the selection of a venire panel, he 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.

Duren, 439 U.S. at 364, 99 S.Ct. at 668. To demonstrate the existence of systematic exclusion, a defendant must prove unfair underrepresentation of the excluded group on his venire and in general on other venires in the relevant judicial system near the time of his trial. Id. at 366, 99 S.Ct. at 669 (petitioner successfully demonstrated systematic exclusion by establishing that "discrepanc[ies] occurred not just occasionally, but in every weekly venire for a period of nearly a year"); Euell v. Wyrick, 714 F.2d 821, 822-23 (8th Cir.1983); United States ex rel. Shepherd v. Wyrick, 675 F.2d 161, 162 (8th Cir.1982).

We note that although the random use of voter registration lists to select venires has been approved many times, see, e.g., Brown v. Lockhart, 781 F.2d 654, 656 (8th Cir.1986), a "key man" system in which commissioners select persons they know is highly suspect and provides an "obvious opportunity to discriminate." Ross v. Wyrick, 581 F.2d 172, 174 (8th Cir.1978); see Castaneda v. Partida, 430 U.S. 482, 497, 97 S.Ct. 1272, 1281, 51 L.Ed.2d 498 (1977). Although such a system is disfavored, Singleton still must establish the three elements of the Duren test. ³

According to the 1980 census, the population of Ashley County was 26,538, including 7,237 blacks. Blacks therefore accounted for 27.2% of the population as a whole. The first panel of forty-three consisted of thirty-one whites and twelve blacks, with blacks comprising 27.9% of the panel. The second venire panel consisted of twenty-seven whites and six blacks, or in other words was 18.2% black. The entire venire, the original group summoned by mail and the second group called by phone, was 23.7% black. The variation between the percentage of blacks in the total population of Ashley County compared with the overall percentage of blacks on both venires was 3.6%. ⁴

In the face of this small discrepancy, we find that the representation of blacks on the venire was statistically fair and reasonable in relation to their percentage in the population. Accordingly, Singleton's claim does not satisfy the second requirement of the Duren test. See, e.g., Euell, 714 F.2d at 823 (discrepancy of 7.5% not significant underrepresentation); Shepherd, 675 F.2d at 163 (discrepancy of 22% not "constitutionally offensive"); see also United States v. Clifford, 640 F.2d 150, 155 (8th Cir.1981) (discrepancy of 7.2% not unfair) (citing Swain v. Alabama, 380 U.S. 202, 208-09, 85 S.Ct. 824, 829-30, 13 L.Ed.2d 759 (1965) (underrepresentation by up to 10% not prima facie evidence of discrimination)); cf. Duren, 439 U.S. at...