Anderson v. Gladden

• Decision Date: 26 June 1963
• Citation: 383 P.2d 986,234 Or. 614
• Parties: James Quinten ANDERSON, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 986

383 P.2d 986

234 Or. 614

James Quinten ANDERSON, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 2, 1963.

Decided June 26, 1963.

Louise Jayne, Portland, argued the cause and filed a brief for appellant.

C. L. Marsters, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty.Gen., Salem.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

GOODWIN, Justice.

Petitioner was convicted in 1955 of second degree murder. Judgment was affirmed on appeal. State of Oregon v. Anderson, 207 Or. 675, 298 P.2d 195, 60 A.L.R.2d 850 (1956). Subsequently, Anderson challenged by writ of habeas corpus the jurisdiction of the convicting court. Relief was denied. Anderson v. Britton, 212 Or. 1, 318 P.2d 291 (1957), cert. den. 356 U.S. 962, 78 S.Ct. 999, 2 L.Ed.2d 1068 (1958). He now seeks under the Oregon Post-Conviction Hearing Act, ORS 138.510 to 138.680, to present additional reasons why he should have a new trial.

The essential background facts are reported in the cases cited above. It is sufficient for the present case to recall that Anderson was convicted of killing one Miller, within the boundaries of the Klamath Indian Reservation. Anderson is a member of the Klamath tribe. In Anderson v. Britton, he had challenged without success the jurisdiction of the state courts to try an Indian for a murder committed in Indian country.

Anderson now seeks to overturn his conviction by alleging a number of irregularities that fall under two general headings: (a) denial of equal protection, and (b) new evidence related to the merits. Denial of equal protection of the law is charged in the formation of the grand jury and petit jury. Newly discovered evidence of perjury, going to the merits of the original case, is alleged as an additional bais for a new trial. We will first consider the objections to the grand jury and to the trial jury.

Anderson alleges inter alia: (1) that he was discriminated against because of his race and color in that Indians were systematically excluded from the Klamath County grand jury which indicted him; (2) that Indians were systematically excluded from the Harney County jury list (trial being had in that county upon his motion for a change of venue); and (3) the Harney County officers charged with the preparation of jury lists had not complied with ORS 10.110 to 10.160, the statutory method of selecting jurors, with the result that professional, or volunteer, jurors made up a part of the panel.

To these allegations, the state interposed a demurrer, thereby admitting, at least for a limited purpose, the three classes of alleged irregularities. The trial court sustained the demurrer with reference to the systematic exclusion of Indians from the trial jury in Harney County. The cause eventually came to trial upon certain other factual issues. These included the alleged failure of Harney County officials to comply with ORS 10.110 to 10.160 (the 'professional jurors' issue). The trial court found no prejudice against Anderson resulting from the failure of the county officials strictly to follow ORS 10.110 to 10.160 in the formation of jury lists. The trial court also held that Anderson waived the irregularities, if any, in the make-up of the Klamath County grand jury when he pleaded to the indictment.

The state has argued in this court a number of defenses to the present proceeding. The first is that the objections to the grand jury and to the trial jury should have been taken in Anderson's original appeal to this court. Since they were not so taken, the state says they are barred by ORS 138.550(2):

'When the petitioner sought and obtained direct appellate review of his conviction and sentence, no ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 to 138.680 unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding * * *.' (Petitioner was represented by counsel at all material times.)

The foregoing quotation contains the statutory form of the general rule which this court followed for many years in habeas corpus cases prior to the adoption of the present post-conviction statute. In the petitioner's most recent appearance in this court we said '* * * that habeas corpus will not lie where an appeal was taken and the question was not raised, when if it had been raised, the remedy by appeal would have been adequate.' Anderson v. Britton, supra, 212 Or. at 7, 318 P.2d at 294.

With reference to his objections to the grand jury and to the trial jury, Anderson had an opportunity in his appeal to present whatever objections he thought had merit. His current petition does not allege a sufficient reason for his failure earlier to challenge these supposed irregularities. (He alleges that he has been in custody at all times since the date of the crime.) Anderson's brief asserts that he had insufficient knowledge of the facts to make known his objections to the jury at an earlier time, but his petition does not so allege. Assuming, however, that there was in fact systematic exclusion of Indians and that Anderson knew nothing of it until after his trial, it does not follow that he could not have raised the matter in his appeal.

We are not aware of any rule that excuses a person in custody from the duty to bring up in his appeal such questions as he thinks may have bearing upon the lawfulness of his conviction. His attorneys were not in custody. Any legitimate concern about the jury could have been investigated. Anderson knew there were no Indians on his jury. The reasons for diligence in the appeal are fully set forth in Anderson v. Britton, supra, and need not be repeated here.

This case properly falls within the rule set forth in ORS 138.550(2), and could be disposed of under that section of the code. However, the petition, briefs and arguments deal with constitutional rights which are entitled to federal ¹ as well as state protection. Rather than have the petitioner contend that we have denied him his day in court, we shall consider the questions on the merits as if they had been timely presented.

There is no merit, however, in the belated objection to the failure of the Harney County officials to comply with ORS 10.110 et seq. in selecting jury panels. These defects do not amount to a calculated denial of equal protection of the laws. The mere fact that volunteers (professional jurors) were permitted to serve would not, therefore, present a constitutional issue. Such a defect affords no basis for post-conviction relief. Brooks v. Gladden, 226 Or. 191, 358 P.2d 1055 (1961), cert. den. 366 U.S. 974, 81 S.Ct. 1942, 6 L.Ed.2d 1263 (1961); and see Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963).

On the race question, Anderson's petition perhaps does allege a denial of rights guaranteed by the federal constitution. Systematic exclusion from the jury of members of a defendant's race, if proven, would be a denial of equal protection of the laws. See, e. g., Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950) (grand jury); Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R.2d 1286 (1947) (grand and petit juries). See, also, annotations, 52 A.L.R. 919, 1 A.L.R.2d 1291, 82 L.Ed. 1053, 94 L.Ed. 856, and 97 L.Ed. 1249. The trial court may have been of the opinion that the petition did not allege facts which, if proven (or admitted), would show a calculated system of racial prejudice resulting in a denial of equal protection. In the alternative, the trial court may have deemed the objections as waived. Both theories are discussed in the colloquy. The record does not reveal the basis for the trial court's ruling as clearly as it might have. If the ruling was correct on either basis, however, it is our duty to affirm.

In testing upon demurrer the allegations of racial prejudice in Harney County, we have to assume their truth. Anderson's petition alleged that there were many qualified Indians in Harney County, and that none had ever served on any jury. Anderson then concluded that systematic exclusion existed. If we are permitted to speculate that systematic exclusion was the only possible explanation for such a state of affairs, the petition does not say who excluded the Indians. A separate affidavit says that such exclusion was practiced by the county clerk, and was based on racial grounds. The petition, however, alleged no such facts. The most that can be said for the pleading is that it contained a conclusion which, since there was no motion to make it more specific, might have justified the admission of evidence to prove it. We will treat the pleading, although not artfully drawn, as sufficient against a demurrer in a case in which liberty is at stake. Such a petition, therefore, ordinarily would require an answer and the taking of testimony. In the case at bar, however, the petition incorporated by reference such public records as to make the petition manifestly contradictory, if not, indeed, frivolous with reference to Harney County.

The trial court was entitled to take judicial notice of the federal decennial census most nearly relevant to the case at bar (1950 or 1960). The census for 1950 had been incorporated by Anderson in his pleadings. It is not significantly different from that of 1960. The 1960 census for Harney County reveals the following racial distribution: white, 6558; negro, 6; all others (not further classified), 180. Of the 180 persons not otherwise classified, the court can only speculate how many were members of any particular race. Some undisclosed number may have been members of an American Indian nation, Klamath or otherwise. We can assume that some Indians did, in fact, reside in Harney County. We...