Brown v. Harris

• Decision Date: 07 December 1981
• Docket Number: D,No. 221,221
• Citation: 666 F.2d 782
• Parties: 9 Fed. R. Evid. Serv. 1124 James W. BROWN, Plaintiff-Appellant, v. David R. HARRIS, Superintendent, Greenhaven Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Defendants-Appellees. ocket 81-2139.
• Court: U.S. Court of Appeals — Second Circuit

Page 782

666 F.2d 782

9 Fed. R. Evid. Serv. 1124

James W. BROWN, Plaintiff-Appellant, v. David R. HARRIS, Superintendent, Greenhaven Correctional

Facility, and Robert Abrams, Attorney General of

the State of New York, Defendants-Appellees.

No. 221, Docket 81-2139.

United States Court of Appeals, Second Circuit.

Argued Oct. 6, 1981.

Decided Dec. 7, 1981.

Steven Lloyd Barrett, The Legal Aid Society, Federal Defender Services Unit, New York City, for plaintiff-appellant.

Robert K. Mekeel, Asst. Dist. Atty. of Westchester County, White Plains, N. Y. (Carl A. Vergari, Dist. Atty. of Westchester County, John R. Dinin, Anthony J. Servino, Asst. Dist. Attys., White Plains, N. Y., of counsel), for defendants-appellees.

Before FEINBERG, Chief Judge, and TIMBERS and MESKILL, Circuit Judges.

FEINBERG, Chief Judge:

James W. Brown, a state prisoner, appeals from a decision of the United States District Court for the Southern District of New York, Pierre N. Leval, J., denying appellant's petition for a writ of habeas corpus. Appellant had been convicted in 1975 of kidnapping in the first degree and related crimes. He is now serving a sentence of 25 years to life on the former charge and lesser, concurrent sentences on the latter. Appellant challenges his detention on the grounds that he was denied his Sixth Amendment right to a venire drawn from a fair cross-section of the community and that he was denied due process by the voice identification testimony of two officers at his trial. We find both contentions without merit.

I

Appellant's argument regarding the venire from which his jury panel was drawn is that persons between the ages of 18-28 were unconstitutionally excluded. Appellant rests his claim primarily on Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), which held that in order to establish a prima facie violation of the fair cross-section requirement, a defendant 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 under-representation is due to systematic exclusion of the group in the jury-selection process.

439 U.S. at 364, 99 S.Ct. at 668. See also Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

This challenge was the subject of an evidentiary hearing in the state courts and was rejected in a written opinion by Judge Isaac Rubin on the ground that appellant had failed to prove that the alleged exclusion was intentional or systemic. In denying the writ, Judge Leval appeared to agree with this conclusion but did not rest upon it; instead, he denied relief on the ground that "the underrepresentation was not of a 'distinctive' group in the community...."

The question whether young people, variously defined, are a "distinctive" group under Duren and Taylor has been much bruited about in the federal courts. The weight of authority is in the negative, see, e.g., United States v. Ross, 468 F.2d 1213, 1217 (9th Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188 (1973); United States v. Kuhn, 441 F.2d 179, 181 (5th Cir. 1971); United States v. DiTommaso 405 F.2d 385, 391 (4th Cir. 1968), cert. denied, 394 U.S. 934, 89 S.Ct. 1209, 22 L.Ed.2d 465 (1969), but see United States v. Butera, 420 F.2d 564, 570 (1st Cir. 1970). This circuit has not ruled after Duren on whether young people can be regarded as a distinctive group for this purpose, although we have in the past certainly indicated sympathy with the majority view. See United States v. Guzman, 468 F.2d 1245, 1247 n.5 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973). We see no need to decide this general proposition because we agree with Judge Leval that there was no evidence in the record "concerning the nature of the group" and "no basis for a finding that it shared any special cohesion or similarity of interests."

Moreover, we agree with the state judge that any exclusion was not systematic within the meaning of Duren. When appellant challenged the jury selection system in August 1974, persons under the age of 21 were not then eligible for jury service. A statute lowering the eligibility age to 18 took effect on September 1, 1974, as Judge Leval noted, and petitioner was actually tried a few months later with no 18-21 year olds on the venire. However, as Judge Leval also noted, testimony at the state hearing indicated that "in accordance with usual practice, the existing drums of jurors' names drawn prior to September 1, would be exhausted before the newly drawn drums including 18-21 year olds would be used." Under these circumstances, the exclusion of 18-21 year olds cannot be considered systematic because the problem of introducing newly eligible jurors is the sort of concern that makes "some play in the joints of the jury-selection process ... necessary...." Hamling v. United States, 418 U.S. 87, 138, 94 S.Ct. 2887, 2917, 41 L.Ed.2d 590 (1974). See also, United States v. Guzman, supra. Under Hamling and Guzman, review of the system must be tempered with concern for what is administratively practical and convenient.

With regard to the 21-28 year olds, the state judge justifiably found that there was no automatic exclusion of this group. There was an underrepresentation because many in this category were excused from jury service at their request, because they were attending school or, in the summer months, were looking to earn tuition. This non-automatic exclusion can be justified under Duren by a showing that the exclusion advances a significant state interest, 439 U.S. at 370. We have no doubt that a state's interest in a well-educated citizenry is a concern that justifies this sort of exclusion, United States v. Duncan, 456 F.2d 1401, 1405 (9th Cir.), vacated on other grounds, 409 U.S. 814, 93 S.Ct. 161, 34 L.Ed.2d 72 (1972). Cf. United States ex rel. Chestnut v. Criminal Court of New York, 442 F.2d 611, 618 (2d Cir.), cert. denied, 404 U.S. 856, 92 S.Ct. 111, 30 L.Ed.2d 98 (1971) (exclusion of jurors below the age of 35 justified on the ground that the state can take advantage of older persons' greater experience; pre-Duren). ¹ In short, appellant's claim that the venire for his state trial was constitutionally defective was, on this record, without merit.

II

Appellant also argues that the use of voice identification testimony at his trial denied him due process. It appears from Judge Leval's opinion that the following occurred before and at appellant's trial; after his indictment in this case for kidnapping and after the appearance of his counsel, Brown was arrested on different and unrelated charges. He was interviewed in connection with these new charges several times; most of the interviews were conducted outside the presence of counsel and without a waiver of his right to counsel. ² Shortly thereafter, two of the interviewing officers were called to the district attorney's office, where they listened to a tape of the ransom demand recorded at the time the crime was committed, and identified Brown's voice on it. At the close of the trial, these officers were called to testify about their identification. No notice was given to appellant prior to calling these witnesses. He was, however, aware of the existence of the tape because he had been notified of audibility hearings that were conducted to determine its admissibility.

Appellant advances several reasons why it was reversible error to admit this evidence. He first contends that the voice identification violated his Sixth Amendment rights. He apparently argues that under the authority of Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977), the voice identification must be excluded because the witnesses gained familiarity with his voice at interviews conducted in the absence of his attorney. Both parties admit that the interviews were connected with an investigation unrelated to the kidnapping. Moreover, the officers at the time did not know about the ransom tape, did not speak to appellant in order to identify his voice and played no role in the investigation of this case until they were asked to listen to the ransom tape. Under the circumstances, Brewer v. Williams is not apposite.

Next, appellant claims that it was reversible error to admit the identification testimony without giving him advance notice. Brown cites a New York statute, N.Y.Crim.Proc.Law § 710.30 ³ for the proposition that State must serve pretrial notice of an intent to offer testimony identifying a defendant. While it is arguable that this statute is applicable here, we do not reach that issue. Brown cites no case indicating that this statute, or that a notice requirement in general, is constitutionally mandated. ⁴ Nor is a pretrial hearing needed, as appellant contends, before allegedly tainted identification testimony is adduced, Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 659, 66 L.Ed.2d 549 (1981) ("While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart-the 'integrity'-of the adversary process," citing Judge Leventhal's concurring opinion in Clemons v. United States, 408 F.2d 1230, 1251 (1968)).

Finally, appellant maintains that the evidence is inadmissible because it was tainted by the suggestive circumstances under which the witnesses identified Brown's voice. Analogizing the identification procedure used here to a single photo show-up, Brown claims that the likelihood of error, which is said to require stringent constraints on identifications from photographs, Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), was present here. Appellant contends that when the officers were brought to the district...