Carmical v. Craven, 52246.

• Decision Date: 09 July 1970
• Docket Number: No. 52246.,52246.
• Citation: 314 F. Supp. 580
• Court: U.S. District Court — Northern District of California
• Parties: Richard L. CARMICAL, Petitioner, v. Walter E. CRAVEN, Warden, California State Prison, at Folsom, Respondent.

314 F. Supp. 580

Richard L. CARMICAL, Petitioner, v. Walter E. CRAVEN, Warden, California State Prison, at Folsom, Respondent.

No. 52246.

United States District Court, N. D. California.

July 9, 1970.

Charles Stephen Ralston, Oscar Williams, San Francisco, Cal., Judith Ann Ciraolo, Oakland, Cal., for petitioner.

Thomas C. Lynch, Atty. Gen. of the State of California, Derald E. Granberg, Gloria F. DeHart, Deputy Attys. Gen., for respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

GERALD S. LEVIN, District Judge.

Petitioner was convicted and sentenced on November 4, 1966, by the Superior Court in Alameda County, California, for violations of California Health & Safety Code § 11500 (possession of heroin) and California Penal Code § 12021 (convicted felon in possession of a firearm). He petitioned this Court for a writ of habeas corpus and on January 22, 1970, this Court issued an Order to Show Cause. Petitioner bases his petition upon two grounds: First, that the "clear thinking" test used in the screening of prospective jurors at the time of petitioner's trial "was a gross discrimination along racial, economic and cultural grounds," and Second, that the evidence used to convict petitioner was obtained as a result of an illegal search and seizure made in the course of an arrest, which arrest was unlawful because of lack of probable cause for the arrest.¹

The Test Used to Screen Prospective Jurors

At the time of petitioner's trial in 1966, a clear thinking test was used to select a master jury panel from the voter registration lists. This test consisted of twenty-five multiple-choice questions which had to be answered in ten minutes. In order to qualify for the master jury panel prospective jurors were required to give correct answers to at least 80 per cent of the questions.

The jury for petitioner's trial was drawn from this master jury panel. Petitioner, a Negro, claims that this clear thinking test excluded a disproportionate number of Negroes and low income persons. In People v. Craig,² adjudicated subsequent to the trial of petitioner, the Court considered this test as used to screen prospective jurors and found that it excluded a disproportionate number of Negroes and persons of low economic income. The expert testifying in that case expressed the opinion that the test had a tendency to exclude people from the ghettoes because of "inadvertent discrimination." The Court did not hold this test to be unconstitutional or unfair but merely directed the Jury Commissioner to summon a panel of jurors "in a manner consistent with this decision."

Assuming that this test excluded proportionately more Negroes and more persons of low economic income as compared to persons in middle or upper income classes, there is no evidence or showing that there was any purpose to exclude a disproportionate number of Negroes or low income persons. Furthermore, this test was administered equally to all persons regardless of race or income.

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Court affirmed petitioner's conviction despite his allegation of racial discrimination in the selection of jurors. While Negroes constituted 26% of the males over 21 in that county, only 10% to 15% of the grand and petit jury panels were Negroes. Alabama law required the jury commissioners to place on the jury roll all male citizens in the community over 21 who are reputed to be honest, intelligent men and are esteemed for their integrity, good character and sound judgment. The Court found that in practice the commissioners do not place on the jury roll all such citizens, either white or Negro. The Court referred to this jury selection procedure and held (pp. 208-209, 85 S.Ct. pp. 829-830):

Venires drawn from the jury box made up in this manner unquestionably contained a smaller proportion of the Negro community than of the white community. But 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. * * * There is no evidence that the commissioners applied different standards of qualifications to the Negro community than they did to the white community. * * * Undoubtedly the selection of prospective jurors was somewhat haphazard and little effort was made to ensure that all groups in the community were fully represented. But an imperfect system is not equivalent to purposeful discrimination based on race.

Accord: Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); and Thomas v. Texas, 212 U.S. 278, 29 S.Ct. 393, 53 L.Ed. 512 (1909).

The decision in Swain fairly controls the contentions here. Petitioner does not have a constitutional right to have a proportionate number of his race or economic class on the jury or the master jury panel. Swain, supra at p. 208, 85 S.Ct. 824. The test given to Negroes was exactly the same as that given to others and it was administered and graded on equal terms with respect to all persons. Although this test may have been imperfect and resulted in excluding a disproportionate number of Negroes and persons of low economic income, this does not amount to purposeful discrimination based on race or income.

Objective criteria were used to select the members of the jury panel. The criteria were designed to test the intelligence of the prospective jurors. The Supreme Court of the United States recently has given approval of such a test. Carter v. Jury Commission, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1969); Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1969). In Carter the District Court refused to invalidate the Alabama law requiring the jury commissioners to select for jury service those persons who are "generally reputed to be honest and intelligent and * * * esteemed in the community for their integrity, good character and sound judgment * * *." In affirming the judgment of the District Court, the Supreme Court said (pp. 332-333, 90 S.Ct. pp. 524-525):

It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. "Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty."

Turner follows Carter in upholding the constitutionality of the jury selection law which gives the jury commissioners the right to eliminate from grand-jury service anyone they find not "upright" and "intelligent." The distinguishing feature of Turner vis-a-vis the instant case is contained in the opinion of the court as follows (pp. 360-361, 90 S.Ct. p. 540):

In sum, the appellants demonstrated a substantial disparity between the percentages of Negro residents in the county as a whole and of Negroes on the newly constituted jury list. They further demonstrated that the disparity originated, at least in part, at the one point in the selection process where the jury commissioners invoked their subjective judgment rather than objective criteria. The appellants thereby made out a prima facie case of jury discrimination, and the burden fell on the appellees to overcome it.

The testimony of the jury commissioners and the superior court judge that they included or excluded no one because of race did not suffice to overcome the appellants' prima facie case. So far the appellees have offered no explanation for the overwhelming percentage of Negroes disqualified as not "upright" or "intelligent," or for the failure to determine the eligibility of a substantial segment of the county's already registered voters.

There is no showing in the instant case of purposeful exclusion from jury service because of race. Negroes of low economic income were treated in the same manner as whites and members of other minority groups who are persons of low economic income. Even though the use of the clear thinking test may have resulted in a high proportion of persons of petitioner's racial and social background failing the test, that is not adequate proof that persons of petitioner's or any other race were purposefully excluded from the master jury panel in Alameda County because of the employment of the test, and it is not sufficient to demonstrate a violation of petitioner's constitutional rights.

Petitioner's Arrest and the Search and Seizure

Petitioner alleges that police officers searched him in the course of an arrest which was unlawful because there was no probable cause to make an arrest. The following facts are...