Dorador v. State

• Citation: 573 P.2d 839
• Decision Date: 11 January 1978
• Docket Number: No. 4804,4804
• Parties: Joe DORADOR, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 839

573 P.2d 839

Joe DORADOR, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4804.

Supreme Court of Wyoming.

Jan. 11, 1978.

Martin P. Miller, Littleton, Colo., and Edwin H. Whitehead, Cheyenne, signed the briefs and appeared in oral argument on behalf of appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Allen C. Johnson, Law Clerk, signed the briefs and Allen C. Johnson appeared in oral argument on behalf of appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

Appellant-defendant was found guilty by a jury in district court on three counts of delivery of heroin, a controlled substance, in violation of § 35-347.31(a)(i), W.S.1957, 1975 Cum.Supp., and sentenced to a penitentiary term of not less than five (5) years nor more than nine (9) years on each count, the sentences to run concurrently. On appeal, defendant raises two issues, neither of which requires any detailed recitation of facts:

1. Whether the use of voter registration lists as the sole basis for the master jury wheel in district court is in violation of the Fifth and Sixth Amendments to the United States Constitution;

2. Whether the trial court erred in refusing defendant's offered instruction on specific intent.

We shall affirm.

Defendant's first issue actually consists of two assertions: (1) the use of voter registration lists as the sole basis for the district court master jury wheel is constitutionally infirm; (2) the trial court's alleged failure to give defendant an adequate opportunity to research and present this assertion before trial. As to both contentions, we find no error. We shall explain our holding as to (1) and (2) in reverse order.

On January 5, 1977, the district court scheduled trial for February 7, 1977. On February 4, 1977, defendant filed his motions, supported by brief, challenging the registered voter master jury wheel system and requesting discovery with respect thereto. On the same day, the trial judge reset trial for February 8th. Finally, on February 7th, a notice of hearing, signed by defendant's counsel for defendant's motions, was filed and a hearing thereon scheduled for 4:00 p.m. that same day. Although defendant's Colorado counsel could not make the scheduled motions hearing, his local counsel was afforded an opportunity to pursue the requested discovery but declined, even though the county clerk and clerk of court were made available for that purpose.

Immediately prior to commencement of trial, and after some argument, defendant's motions were denied. In so doing, the trial judge pointed out that under the Rules of the First Judicial District, all motions must be accompanied by a notice of hearing, the date and place being set by the court, before they are filed, yet the defendant had failed to so comply. His notice of hearing was filed three days after the motion but yet the court, within 30 minutes, set it for hearing later that same day when called to his attention. Further, the judge noted that the sitting jury panel had been in existence in part since October and in full since December, 1976, and that defendant's local counsel had the opportunity ever since to examine into it and make unlimited discovery. With those explanations, we can perceive no basis for finding trial court error. Any lack of opportunity for discovery suffered by defendant was not the result of prosecution or court action, but simply the result of his own lack of diligence. Further, defendant's motion for discovery lacked any specificity. ¹ It merely asked for an opportunity to make discovery of facts which had been available ever since the defendant's arraignment on December 10, 1976, at which time he was represented by counsel. The voter registration lists had been available in both the office of the county clerk and the office of clerk of court pursuant to §§ 1-85 and 18-142.1, W.S.1957, 1975 Cum.Supp. ² since January, 1976. The clerk of court and county clerk were made available for examination on the date set by defendant's counsel, but local counsel refused to examine them, apparently because out-of-state counsel could not be present.

While § 33-49, W.S.1957, provides that out-of-state counsel may be admitted for the purposes of a particular case, such nonresident practitioner must have associated with him an active member of the Wyoming State Bar. Rule 19 of the Rules of this court For the Government of Attorneys at Law. The function of local counsel is something more than a matter of form or protocol; it is not intended that he be only a figurehead. It is expected that he take an active part in the representation of the client concerned and be available to share responsibility as well as actively participate in the case at hand, in the absence of out-of-state counsel. Within the foregoing facts, we can find no prejudicial error.

Finally, we have some difficulty associating the motion with the type discovery contemplated by Rule 18, W.R.Cr.P., requiring the prosecution to disgorge available information but if so construed, such a motion must be made within 10 days after arraignment or at a later "reasonable time." Rule 18(g), W.R.Cr.P. Waiting until the last moments before trial was unreasonable. It would appear that the motion was more in the nature of one for a continuance. If it was the latter, it rested within the discretion of the trial judge to grant or deny in the absence of an abuse of discretion. Sims v. State, Wyo.1975, 530 P.2d 1176. Under the circumstances related, we hold there was no abuse of discretion.

In support of his assertion that because of its underlying basis the district court jury wheel is constitutionally infirm, defendant cites numerous statistical and sociological studies which indicate that particular identifiable ethnic groups are under-represented on voter lists, hence on jury lists, and, therefore, a jury selected on this basis cannot stand constitutional muster under the United States Constitution, Fifth and Sixth Amendments. Such a posture is not new to this court. Boyd v. State, Wyo.1974, 528 P.2d 287, cert. den. 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102; Simms v. State, Wyo.1972, 492 P.2d 516, cert. den. 409 U.S. 886, 93 S.Ct. 104, 34 L.Ed.2d 142; Lofton v. State, Wyo.1971, 489 P.2d 1169, cert. den. 406 U.S. 949, 92 S.Ct. 2049, 32 L.Ed.2d 337. In Boyd, supra, the most recent discussion on the subject, it was once again reiterated that a defendant asserting such a challenge must show systematic and intentional exclusion of an ethnic group:

" * * * We again call attention to Fay v. New York, 332 U.S. 261, 284, 67 S.Ct. 1613, 1626, 91 L.Ed. 2043 (as we did in Lofton, 489 P.2d at 1171-1172), where it was said, 'It is fundamental in questioning the composition of a jury that a mere showing that a class was not represented in a particular jury is not enough; there must be a clear showing that its absence was caused by discrimination * * *." We adhere to our view expressed in Simms v. State, supra, 492 P.2d at 520 (n. 2), where we indicated that the simplest method by which any defendant could challenge a jury as being selected by systematic and intentional exclusion of any group of persons would be to present the names of various persons who were entitled to be on the jury list and whose names were not contained thereon. This would impose no great burden and would permit the one claiming to be denied a fair trial a workable method for meeting the above-mentioned prerequisite of Fay." 528 P.2d at 289-290.

See as well, State v. Fitzpatrick, Mont.1977, 569 P.2d 383; State v. Lee, 1976, 114 Ariz. 101, 559 P.2d 657.

Defendant has not met this burden of showing systematic and intentional exclusion of racial minorities from the lists involved here nor was there any offer to do so nor is there any meaningful showing that such evidence could be produced. Rather, what he has done is present us with a conjectural, abstract assertion of discrimination based on statistical probabilities. This, as other courts have pointed out, is not enough. As said in United States v. Test, 10 Cir. 1976, 550 F.2d 577, 583-584:

" * * * (D)efendants' evidence establishes nothing more or less than a very high statistical probability that the voter registration lists, of which the master and qualified jury wheels were concededly representative, contained comparatively smaller proportions of Chicanos and blacks than the general voting-age population. The mathematical conclusion that the disparity between these two figures is 'statistically significant' does not, however, require an a priori finding that these deviations are 'legally significant' or that the * * * jury...