Ex parte Gray

• Decision Date: 18 March 1988
• Parties: Ex parte Jessie James GRAY. (Re Jessie James Gray v. State). 86-1080.
• Court: Alabama Supreme Court

Page 788

522 So.2d 788

Ex parte Jessie James GRAY.

(Re Jessie James Gray v. State).

86-1080.

Supreme Court of Alabama.

March 18, 1988.

Petition for Writ of Certiorari to the Court of Criminal Appeals.

Allen W. Howell, Montgomery, for petitioner.

Don Siegelman, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for respondent.

Prior report: Ala.Cr.App., 522 So.2d 786.

PER CURIAM.

Although this Court has decided to quash the writ in this case, we nevertheless invite the attention of the legislature, in the event that body wishes to so direct its attention, to the matter of the repeated submissions to grand juries of the same evidence in support of criminal charges.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C.J., and MADDOX, JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.

BEATTY, J., concurs specially.

BEATTY, Justice (concurring specially).

I concur in the decision to quash the writ in this case on the grand jury issue and to invite the legislature's attention to that issue in the event that body wishes to reexamine the federal rule adopted by the Court of Criminal Appeals in its opinion in this case.

Based on the following analysis, I also concur in the decision to quash the writ in this case as to the issue concerning the propriety of the practice in Montgomery County of drawing the master juror list exclusively from the list of persons registered to vote in that county. This issue raises the question of the precedential value of State ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970), in view of the 1978 revisions to the juror qualification and selection statutes, a question that has not been expressly addressed by this Court. I recognize that on the face of its decisions in Wesley v. State, 424 So.2d 648 (Ala.Crim.App.1982), and Sanders v. State, 426 So.2d 497 (Ala.Crim.App.1982), it would appear that the question has been squarely decided by the Court of Criminal Appeals. Nevertheless, I will examine the efficacy of that court's analysis of the issue and its reasoning in resolving the issues.

At the outset, I note that the Court of Criminal Appeals held that petitioner's objection to the jury list, drawn solely from the list of registered voters, was made too late because he "did not object to the makeup of the master jury list until a month and a half after his plea of not guilty [but apparently his objection was made before trial]," citing Sanders v. State, supra. However, under this Court's decision in Williams v. State, 342 So.2d 1328, 1330 (Ala.1977), petitioner's "proper objection to the composition of a grand or petit jury, including, but not limited to, the constitutional ground of the jury selection process [would be timely if made] before entering upon the trial of the case on its merits." See also Kittle v. State, 362 So.2d 1271, 1273 (Ala.1978), and Brown v. Billy Marlar Chevrolet, Inc., 381 So.2d 191 (Ala.1980). Accordingly, petitioner's objection was timely.

I wish to emphasize that the issue here is not whether it is constitutionally permissible in Alabama to compile a master jury list solely and exclusively from the list of registered voters. In the clear majority of jurisdictions, including the federal courts, which have considered the constitutional question, it has been held that use of voter registration lists as the source of names for prospective jurors meets the constitutional requirement that a jury list reflect a cross section of the community, unless there is a showing that the voter registration lists do not, in fact, represent a fair cross section of the community. See generally, Annot., 80 A.L.R.3d 869 (1977). Rather, the issue to be decided here is whether the exclusive use of the voter registration list as the sole source of prospective jurors is permissible under Alabama's statutory requirements for the selection of jurors.

Because the same question was decided by this Court in State ex rel. Gregg v. Maples, supra, my analysis begins with that case and the jury selection statutes in effect at the time of that decision. The statutory provisions found to be controlling of the issue in Gregg were Code of 1940 (Recomp.1958), Title 30, §§ 18, 20, 21, and 24, set out in pertinent part below:

§ 18. The clerk of the jury commission shall, under the direction of the jury commission obtain the name of every citizen of the county over twenty-one and under sixty-five years of age and their occupation, place of residence and place of business, and shall perform all such other duties required of him by law under the direction of the jury commission.

"....

§ 20. The jury commission shall ... make in a well-bound book a roll containing the name of every citizen living in the county who possesses the qualifications herein prescribed and who is not exempted by law from serving on juries.

§ 21. The jury commission shall place on the jury roll and in the jury box the names of all citizens of the county who are generally reputed to be honest and intelligent and are esteemed in the community for their integrity, good character and sound judgment; but no person must be selected who is under twenty-one or who is an habitual drunkard, or who, being afflicted with a permanent disease or physical weakness is unfit to discharge the duties of a juror; or cannot read English or who has ever been convicted of any offense involving moral turpitude....

"....

§ 24. The jury commission is charged with the duty of seeing that the name of every person possessing the qualifications prescribed in this chapter to serve as a juror and not exempted by law from jury duty, is placed on the jury roll and in the jury box.... The jury commission shall require the clerk of the commission to scan the registration lists, the lists returned to the tax assessor, any city directories, telephone directories and any and every other source of information from which he may obtain information and to visit every precinct at least once a year to enable the jury commission to properly perform the duties required of it by this chapter." (Emphasis added.)

At issue in State ex rel. Gregg was the Madison County "Jury Refilling and Reorganization Plan," which required that the names of persons placed on the jury roll in Madison County also appear on the registration records or lists as registered voters of that county. Construing this plan under the juror selection statutes quoted above, this Court held that the plan "is a radical departure from the statutory system enacted by the legislature of this state, which system applies to Madison County, and is repugnant to so many aspects of that system as to constitute a usurpation of the authority of the legislature." 286 Ala. at 278, 239 So.2d at 201. The Court reasoned as follows:

"The purpose of §§ 18, 20 and 24 of Title 30 is 'to protect litigants and to insure a fair trial by an impartial jury.' And 'substantial compliance with these requirements is necessary in order to safeguard the administration of justice.' Inter-Ocean Cas. Co. v. Banks, 32 Ala.App. 225, 227, 23 So.2d 874, 875.

"Some of the opinions wherein the aforementioned statutes are construed were written in recent cases, in which the appellants complained of the systematic exclusion of Negroes from juries in Alabama. In Fikes v. State, 263 Ala. 89, 81 So.2d 303, it was held that the evidence at a hearing on a motion to quash did not support a finding that Negroes were systematically omitted from the jury roll. This Court in Fikes, supra, said that '[t]here is no legal reason for quashing an indictment or venire simply because the jury commission did not put the name of every qualified person on the roll or in the jury box, in the absence of fraud (or a denial of constitutional rights).' (263 Ala. 95, 81 So.2d 309) Bell v. Terry, 213 Ala. 160, 104 So. 336; Wimbush v. State, 237 Ala. 153, 186 So. 145.

"That statement of law was recognized by two federal decisions in granting injunctive relief to Negroes, but the court went on to say that 'the law does require that the jury commissioners do not place so few names in the jury box as not to obtain a full cross-section of the county.' Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala., 1966); White v. Crook, 251 F.Supp. 401 (M.D.Ala., 1966).

"In the Mitchell case, supra, the court said that 'the purpose of the Alabama statutes is to insure at least a reasonable approximation to the requirements that jury venires include all qualified persons, and, hence, represent a cross-section of the community, with no significant groups being excluded without justifiable reasons; therefore, the procedures outlined by the Alabama statutes can and do serve * * * as a standard by which the actions of the jury commissioners can and should be judged.' 250 F.Supp. at p. 122. And that the 'sole purpose of these requirements is to insure that the jury commissioners will have as complete a list as possible of names, compiled on an objective basis, from which to select qualified jurors.' 250 F.Supp. at p. 123.

"In Bokulich v. Jury Commission of Greene County, 298 F.Supp. 181 (N.D.Ala., 1968), the court summarized the present position of the law as to these statutes, stating:

" 'Failure to put on the roll the name of every qualified person may not be the basis for quashing an indictment or venire absent fraud or denial of constitutional rights [citing Fikes], but substantial compliance with these legislative safeguards established to protect litigants and to insure a fair trial by an impartial jury is necessary in order to safeguard the administration of justice. [citing Inter-Ocean, supra].' 298 F.Supp., 186-187.

"The appellees argue that the 'Plan' provides for substantial compliance with the statutes in that names gotten from the voter registration lists would provide an adequate cross-section of the county. They cite United States v. Greenberg, 200 F.Supp. 382 (S.D.N.Y., 1961), in support of this theory. While it is correct that the court in that...