Anderson v. Johnson, 16533.

• Decision Date: 22 December 1966
• Docket Number: No. 16533.,16533.
• Parties: Brooks Lee ANDERSON, Petitioner-Appellant, v. Wilburn C. JOHNSON, Warden, Tennessee State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

371 F.2d 84 (1966)

Brooks Lee ANDERSON, Petitioner-Appellant, v. Wilburn C. JOHNSON, Warden, Tennessee State Penitentiary, Respondent-Appellee.

No. 16533.

United States Court of Appeals Sixth Circuit.

December 22, 1966.

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J. Brad Reed, Nashville, Tenn. (Court appointed), for appellant, J. O. Bass, Jr., Nashville, Tenn. (Court appointed), on brief.

Ed R. Davies, Special Counsel, Nashville, Tenn., for appellees, Henry C. Foutch, Asst. Atty. Gen., State of Tennessee, Nashville, Tenn., on brief, George F. McCanless, Atty. Gen., and Reporter, State of Tennessee, Nashville, Tenn., of counsel.

Before PHILLIPS, Circuit Judge, and McALLISTER and CECIL, Senior Circuit Judges.

HARRY PHILLIPS, Circuit Judge.

This is an appeal from the order of the district court denying appellant's petition for a writ of habeas corpus.

Appellant, a Negro, was tried in the Circuit Court of Maury County, Tennessee, in 1949, under an indictment charging him with the crime of rape of a girl under fifteen years of age. The jury returned a verdict of guilty and fixed his sentence at forty-nine years and one day. Details as to appellant's previous criminal record and his personal history are set forth in the dissenting opinion of Judge McAllister.

In his trial in the State court appellant was represented by Mr. Pride Tomlinson, Jr., a leading member of the Maury County Bar, as court-appointed counsel. This attorney filed a motion for a new trial, which later was dismissed on appellant's own application made in open court. Appellant is now serving his sentence in the Tennessee Penitentiary.

The District Judge, the Honorable William E. Miller, conducted a thorough evidentiary hearing in the habeas corpus proceeding. Appellant was represented capably in the district court by Mr. Kent Sandidge, III, of the Nashville Bar as court-appointed counsel. Prior to the hearing in this court Mr. Sandidge had been appointed Assistant United States Attorney and was permitted to withdraw as counsel for appellant. Thereupon, this court appointed Mr. James O. Bass, Jr., and Mr. J. Brad Reed of the Nashville Bar as counsel for appellant. These attorneys have filed a comprehensive brief and made an able oral argument before this court.

Two questions are raised on this appeal: (1) that a confession was elicited from appellant subsequent to his arrest and before indictment, after his request to see a lawyer had been denied, relying upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and (2) that Negroes were systematically excluded because of their race from the grand jury which indicted appellant and from the petit jury which convicted him, in violation of his rights under the equal protection clause of the Fourteenth Amendment.

I.

Appellant previously filed a habeas corpus proceeding in the State courts, but did not raise the Escobedo question in that proceeding. This issue was presented for the first time in the district court in the present case. The district judge correctly ruled that appellant has failed to exhaust his State remedies and that the district court would not consider his claim for relief based on that issue. 28 U.S.C. § 2254.

It is now settled that neither Escobedo v. State of Illinois, supra, nor Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, would apply retroactively to this case, which was tried in 1949. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Further, since appellant's contention is premised upon a denial of his right to counsel, and no question is made in this court as to the voluntariness of his confession, Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895, is not applicable.

We accordingly hold that no relief on the issue of denial of the right to counsel is available to appellant in this case.

II.

Both the grand jury which indicted appellant and the petit jury which returned a guilty verdict against him were composed entirely of members of the white race. We now turn to the contention that Negroes were excluded systematically from the grand jury and the petit jury, in contravention of appellant's rights under the Fourteenth Amendment. This contention is based upon a principle of constitutional law long since firmly established. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664.

In Carter v. State of Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 690, 44 L.Ed. 839, the Supreme Court said:

"Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States. Strauder v. West Virginia, 100 U.S. 303 25 L.Ed.2d 664; Neal v. State of Delaware, 103 U.S. 370, 397 26 L.Ed. 567, 574; Gibson v. State of Mississippi, 162 U.S. 565 16 S.Ct. 904, 40 L.Ed. 1075."

In Norris v. State of Alabama, 294 U.S. 587, 589, 55 S.Ct. 579, 580, 79 L.Ed. 1074, the court said:

"Although the state statute defining the qualifications of jurors may be fair on its face, the constitutional provision affords protection against action of the state through its administrative officers in effecting the prohibited discrimination."

The "rule of exclusion" has been applied to prohibit discrimination against any delineated class. Hernandez v. State of Texas, 347 U.S. 475, 480, 74 S.Ct. 667, 98 L.Ed. 866. Briefly stated, the rule is: proof that Negroes constitute a substantial segment of the population of the jurisdiction, that some Negroes are qualified to serve as jurors, and that none of them have been called for jury service over an extended period of time establishes a prima facie case of systematic exclusion of Negroes from jury service. Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579; Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Cassell v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Ross v. State of Texas, 341 U.S. 918, 71 S.Ct. 742, 95 L.Ed. 1352; Labat v. Bennett, 365 F.2d 698 (C.A.5).

It is equally well settled that a member of a racial group has no constitutional right to be tried by a jury composed proportionately of members of his own race. In Swain v. State of Alabama, 380 U.S. 202, 208, 85 S.Ct. 825, 829, 13 L.Ed.2d 759, the Court said:

"A defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. State of Virginia v. Rives, 100 U.S. 313, 322-323 25 L. Ed. 667; Gibson v. State of Mississippi, 162 U.S. 565 16 S.Ct. 904; Thomas v. State of Texas, 212 U.S. 278, 282 29 S.Ct. 393, 53 L.Ed. 512; Cassell v. State of Texas, 339 U.S. 282 70 S.Ct. 629. Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. `Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.\' Cassell v. State of Texas, 339 U.S. 282, 286-287 70 S.Ct. 629 (opinion of Mr. Justice Reed, announcing judgment)."

In Thomas v. State of Texas, 212 U.S. 278, 282, 29 S.Ct. 393, 394, the Court stated that:

"It was ruled in Martin v. State of Texas, 200 U.S. 316 26 S.Ct. 338, 50 L.Ed. 497, as in other cases, that discrimination in organizing a grand jury and impanelling a petit jury cannot be established by merely proving that no one of the defendant\'s race was on either of the juries, and that an accused person cannot of right demand a mixed jury, some of which shall be of his race, nor is a jury of that kind guaranteed by the 14th Amendment to any race. And it was said `What an accused is entitled to demand, under the Constitution of the United States, is that, in organizing the grand jury, as well as in the impanelling of the petit jury, there shall be no exclusion of his race, and no discrimination against them, because of their race or color.\'"

District Judge Miller made a finding of fact that there was no purposeful exclusion of qualified Negroes from the grand and petit juries in Maury County, Tennessee, in 1949, including the following:

"Petitioner has failed to establish a prima facie case of purposeful discrimination or exclusion of qualified negroes from the grand and petit juries of Maury County during 1949. Petitioner introduced census reports which purported to establish that the population of Maury County during the period in question was twenty-five per cent negro. He then introduced testimony of several witnesses who said that they were unable to recall that any negroes had served on the grand or petit juries during that time. They further testified that there were qualified negroes living in the county at that time. (It is to be noted that one of the witnesses who testified that there were qualified negroes who could have served on the jury did not even know what the qualifications for jury duty were.)

"In order to establish sufficient ground for relief, it must be shown that there was a purpose to discriminate. Mere racial imbalance will not suffice. Akins v. Texas, 325 U.S. 398 65 S.Ct. 1276, 89 L.Ed. 1692. While petitioner introduced evidence as to the percentage of negro population in Maury County in 1949, he did not establish with any certainty what proportion of the negro population would qualify for jury duty. Against the testimony of the individuals who

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