Anderson v. Frey

• Decision Date: 31 August 1983
• Docket Number: No. 82-2208,82-2208
• Citation: 715 F.2d 1304
• Parties: Victor Paul ANDERSON, Appellant, v. Gerard FREY, Superintendent of Missouri Eastern Correctional Center, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1304

715 F.2d 1304

Victor Paul ANDERSON, Appellant, v. Gerard FREY, Superintendent of Missouri Eastern Correctional

Center, Appellee.

No. 82-2208.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 17, 1983.

Decided Aug. 31, 1983.

Thompson & Mitchell, Jason M. Rugo, St. Louis, Mo., for appellant.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before HEANEY, McMILLIAN and ARNOLD, Circuit Judges.

McMILLIAN, Circuit Judge.

Victor Paul Anderson appeals from a final judgment entered in the District Court for the Eastern District of Missouri denying his petition for writ of habeas corpus. For reversal appellant argues the district court erred in finding that the method of selecting supplemental prospective jurors or "bystander" jurors used in his trial did not violate due process. For the reasons discussed below, we reverse the judgment of the district court and remand with directions.

Procedural History

Appellant was found guilty by a jury of attempted armed robbery in the Circuit Court for New Madrid County, Missouri, in October 1980. Appellant was sentenced to ten years imprisonment. Appellant appealed his conviction to the Missouri Supreme Court alleging that the county sheriff unconstitutionally participated in the selection of the jury panel pursuant to Mo.Rev.Stat. § 494.250(2) (1978). ¹ The Missouri Supreme Court rejected this constitutional attack and affirmed his conviction. State v. Anderson, 620 S.W.2d 378 (Mo.1981).

In September 1981 appellant filed this petition for writ of habeas corpus raising four grounds for relief: (1) the state improperly called a witness who was not listed as a prosecution witness, (2) the jury was unconstitutionally selected, (3) appellant was unlawfully arrested and did not receive a full and fair hearing, and (4) two state witnesses committed perjury at the trial. The district court referred the petition to a magistrate pursuant to 28 U.S.C. § 636(b). The magistrate found that appellant had failed to exhaust available state remedies with respect to every ground except the jury selection ground ² and recommended an evidentiary hearing on that ground in light of Henson v. Wyrick, 634 F.2d 1080 (8th Cir.1980) (filed Nov. 12, 1980), cert. denied, 450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 383 (1981), a case decided after the trial in the present case in which this court disapproved of the same method of bystander juror selection. Anderson v. Frey, No. 81-1187-C(2) (E.D.Mo. Dec. 8, 1981).

Following the Supreme Court's disapproval of mixed petitions for writ of habeas corpus in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), appellant elected to waive his three unexhausted grounds and to proceed on the jury selection ground only. Following an evidentiary hearing, the magistrate found that the method used to select bystander jurors in the present case did not violate due process and distinguished the present case from Henson on three grounds: the sheriff did not personally select any of the bystander jurors but delegated that responsibility to deputy sheriffs and city marshals, the sheriff placed some limitations on the exercise of discretion by the deputy sheriffs and no sheriff's department personnel testified on behalf of the prosecution. Anderson v. Frey, No. 81-1187-C(2) (E.D.Mo. Aug. 9, 1982). The district court accepted the report and recommendation of the magistrate and denied the petition for writ of habeas corpus. This appeal followed.

Background Facts

Appellant's trial was held in October 1980 in New Madrid County, Missouri. New Madrid County is a rural and relatively sparsely populated county in southeast Missouri. In 1980 the county sheriff's department consisted of a sheriff, four full-time deputies and several city marshals who served as part-time deputies. The sheriff is an elected official. The sheriff's department's duties include law enforcement, criminal investigation, subpoenaing prospective jurors and witnesses, and delivering civil summonses. The sheriff also serves as the bailiff during criminal trials and is in charge of or supervises the selection of bystander jurors upon order of the county circuit court pursuant to Mo.Rev.Stat. § 494.250(2). At the evidentiary hearing the sheriff testified that in 1980 in order to select bystander jurors he would contact the deputy sheriffs and city marshals by radio and direct them to select a certain number of persons for jury service. The sheriff would give the deputy sheriffs and city marshals general guidelines (i.e., sex and race) in order to produce a mixed panel of bystander jurors representative of the county. The deputy sheriffs and city marshals testified that they selected bystander jurors within these general guidelines. They tried to select "upstanding citizens" who were county residents and "available" for jury service on the basis of their personal knowledge of the particular individual. The sheriff testified that he would veto a particular bystander juror if the individual was a close friend or for some other good reason unqualified.

Of the twenty-six prospective jurors summoned by the Clerk of the New Madrid County Board of Jury Commissioners for appellant's trial, four were absent and four were removed for cause. The state trial court directed the sheriff to summon a total of thirteen bystander jurors to complete the jury panel. The sheriff contacted five deputy sheriffs and one city marshal, who was not an employee of the sheriff's department, and asked them to find the necessary bystander jurors. The selections were made on short notice; the supplemental venire orders were issued on October 27 and 28 and the trial was scheduled to begin October 29. The sheriff was slightly acquainted with all thirteen bystander jurors but did not know any of them well. On the first day of trial one of the bystander jurors was removed for cause and two were absent. Appellant challenged the ten bystander jurors for cause and then moved to quash the jury panel on the grounds that the jury commissioners had improperly failed to summon a sufficient number of prospective jurors and the necessary bystander jurors had been selected by the sheriff. The state trial court denied both motions. Three of the bystander jurors served on appellant's jury.

The New Madrid County sheriff's department conducted the investigation of the attempted armed robbery for which appellant was convicted. The sheriff testified that he did not personally conduct the investigation but that he was the supervisor of the deputy sheriff who was primarily responsible for the investigation. The investigating deputy sheriff was not involved in the selection of the bystander jurors. The sheriff served as the bailiff during appellant's trial but did not testify at the trial. The investigating deputy sheriff was called as a witness by the defense ³ and testified about his investigation and about written and oral statements made by one of the persons involved in the attempted armed robbery which tended to incriminate appellant.

Discussion

The issue in the present case is whether the sheriff's involvement in the selection of bystander jurors deprived appellant of due process.

This court has been concerned with the opportunity for abuse presented when the sheriff or another "key man" exercises discretion in selecting bystander jurors to complete jury panels. See Ross v. Wyrick, 581 F.2d 172, 174-75 (8th Cir.1978) (unconstitutional underrepresentation of blacks on master jury list was not cured by sheriff's personal selection of blacks as bystander jurors); cf. Cravens v. United States, 62 F.2d 261, 271 (8th Cir.1933) (selection of bystander jurors by "interested" marshal under repealed federal statute), cert. denied, 289 U.S. 733, 53 S.Ct. 594, 77 L.Ed. 1481 (1933). This court has reviewed the sheriff's selection of prospective jurors in three recent cases, Henson v. Wyrick, 634 F.2d 1080 (8th Cir.1980), Holt v. Wyrick, 649 F.2d 543 (8th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 295 (1982), and Thompson v. White, 661 F.2d 103 (8th Cir.1981), vacated and remanded, 456 U.S. 941, 102 S.Ct. 2003, 72 L.Ed.2d 463 (1982), on remand, 680 F.2d 1173 (1982) (per curiam), cert. denied, --- U.S. ----, 103 S.Ct. 830, 74 L.Ed.2d 1024 (1983).

In Henson v. Wyrick the record showed that the sheriff handpicked his acquaintances to serve as bystander jurors. ⁴ 634 F.2d at 1081-82. The sheriff was not personally involved in the investigation of the crime at issue in the case, but the sheriff's subordinates were responsible for the investigation and the arrest of the defendant and testified at trial. Id. The court held that the sheriff's selection of his acquaintances as the bystander jurors in order to complete the jury panel violated the defendant's due process rights. Id. at 1084. The court stated that although neither the fact that some jurors were acquaintances of the sheriff nor the fact that the state court allowed the sheriff some discretion in the selection of bystander jurors would in itself invalidate the conviction, id., there was a considerable, and unacceptable, risk that the sheriff would select bystander jurors sympathetic to the prosecution. Id. at 1085. In addition there was the possibility that the jurors would associate the credibility of the sheriff with that of the deputy sheriff who was a prosecution witness. Id. The court recognized that defense counsel has the opportunity to show bias on voir dire and thus protect the defendant from the potentially prejudicial bystander jurors selected by the sheriff but rejected voir dire as an adequate remedy. Id. "The subtleties involved in identifying [prospective] jurors' sympathies and predicting their evaluation of the deputies' prospective testimony are often too intangible to identify during voir dire." Id. Moreover, the availability of voir dire does not really address the defendant's...