Euell v. Wyrick, 83-1150

• Decision Date: 17 August 1983
• Docket Number: No. 83-1150,83-1150
• Citation: 714 F.2d 821
• Parties: David EUELL, Appellant, v. Donald W. WYRICK, Warden, Missouri State Penitentiary.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 821

714 F.2d 821

David EUELL, Appellant, v. Donald W. WYRICK, Warden, Missouri State Penitentiary.

No. 83-1150.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 12, 1983.

Decided Aug. 17, 1983.

Thomas Scott Richardson, Jr., St. Louis, Mo., for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before JOHN R. GIBSON, Circuit Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.

PER CURIAM.

David Euell, an inmate at the Missouri State Penitentiary, appeals from the district court's ¹ denial of his petition for writ of habeas corpus. For reversal Euell argues that the district court erred in finding that he failed to establish a prima facie case of underrepresentation of women on the venire from which his jury was selected. We affirm the denial of the writ.

Euell was convicted of second-degree murder in St. Louis County, Missouri in 1976, and was sentenced to 30 years in prison. The procedural history of Euell's efforts to obtain post-conviction relief in state and federal courts is summarized in our prior decision, Euell v. Wyrick, 675 F.2d 1007 (1982). In that decision, we remanded Euell's habeas corpus proceeding to Judge Hungate to hold an evidentiary hearing to determine whether women were systematically underrepresented on the venire.

At that hearing, before a magistrate, Robert Ruhland, Director of Judicial Administration for the St. Louis County Circuit Court, testified concerning the method of jury selection employed by the County in March of 1976, the time of Euell's trial. He stated that in January of 1976, approximately 100,000 potential jurors were randomly selected by computer from voter registration lists. From this master list, approximately 750 persons were randomly designated for jury service each week. Those selected received in the mail a summons for jury service and a card which listed the various exemptions from jury service under Missouri law. Ruhland further testified that prior to June of 1975, this card notified potential jurors that women could obtain an automatic exemption. ² After June of 1975, however, the exemption for women was removed from the card as the result of the decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). ³ Thus, at the time of Euell's trial, potential jurors were not notified of the exemption for women.

Ruhland further testified that at the time of Euell's trial women who appeared for jury service and who were aware of their exemption privilege, sometimes asked to be excused, and their requests were granted. He stated, however, that the women's exemption was not generally known even among attorneys.

Euell presented no evidence at the hearing regarding the percentage of women on St. Louis County jury panels or in St. Louis County as a whole. Records of the jury panel at Euell's trial revealed, from the first names, that approximately 17 of the 40 potential jurors on that panel were women. The defense exercised preemptory challenges to six of the women and three women served on the jury that heard the case.

The sixth amendment guarantee of an impartial jury in criminal trials, which is applicable to the States by virtue of the fourteenth amendment due process clause, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), also encompasses the right to select a jury from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. at 530, 95 S.Ct. at 697-98. 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 underrepresentation is due to the systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979).

In this habeas proceeding the State has conceded that women are a "distinctive" group, Taylor v. Louisiana, 419 U.S. at 531, 95 S.Ct. at 698, and that Euell, who is a man, has standing to challenge their exclusion. Id. at 526, 95 S.Ct. at 695-96. It argues, however, that Euell failed to establish the second and third requirements of the Duren prima facie case. We agree.

To establish the second prerequisite of the Duren test the defendant must present statistical evidence of the percentage of women in the community as a whole, ⁴ and the percentage of women who served on venires during the time period in which the defendant was tried. See Duren v. Missouri, 439 U.S. at 364-66, 99 S.Ct. at 668-69. If, after comparing the two figures, it can be said that the representation of women on the venires was not fair and reasonable, then the second requirement is satisfied.

The defendant in Duren showed that women comprised 54% of the adult population...