Grech v. Wainwright
Decision Date | 12 April 1974 |
Docket Number | No. 73-3375. Summary Calendar.,73-3375. Summary Calendar. |
Citation | 492 F.2d 747 |
Parties | Salvatore Charles GRECH, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director of Corrections, State of Florida, Respondent-Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Salvatore Charles Grech, pro se.
Barry Scott Richard, J. Robert Olian, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.
Before GEWIN, GODBOLD and CLARK, Circuit Judges.
Grech, a Florida state prisoner, appeals from the district court's denial of his petition for a writ of habeas corpus. Seeking to upset a state conviction for breaking and entering, robbery and assault with intent to commit murder, Grech argues that three infirmities inhered in his jury trial. Concluding that the district court correctly rejected his contentions, we affirm.
The first two contentions raised by Grech are amenable to facile disposition. His first, that the state trial judge erred in failing to instruct the jury on the lesser included offense of trespass, is controlled by Alligood v. Wainwright, 440 F.2d 642, 643 (5th Cir. 1971) where this court held that this alleged error does not present a federal constitutional question. See Higgins v. Wainwright, 424 F.2d 177 (5th Cir. 1970); Flagler v. Wainwright, 423 F.2d 1359 (5th Cir. 1970).
His second contention is that the trial judge erred in denying his motion for severance of his trial from that of his co-defendant. Critical to its efficacy, however, is evidence that defendant was prejudiced by the joint trial. Our review of the record convinces us that no such evidence exists, and that the Florida Appellate Court's response to this contention was sound:
Grech v. State, 243 So.2d 216, 218 (Fla. 3 D.C.A. 1971). Agreeing with the Florida Appellate Court's observations, as did the district court, we cannot conclude that the denial of Grech's motion for severance was an abuse of discretion as would amount to a deprivation of due process.
Grech's third contention, that his jury was selected in a manner which does not comport with the Constitution, merits a more extensive discussion.1 It is prompted by the fact that the trial judge excused all Jewish veniremen from jury service because Grech's trial commenced on the Jewish holiday of Yom Kippur.2 The trial judge's explanation for his action was as follows:
It is axiomatic that a litigant is entitled not to a jury which mirrors the composition of racial, ethnic and religious groups in the community wherein he resides, but rather merely a jury which is fairly selected.3E. g., Alexander v. Louisiana, 405 U.S. 625, 628-629, 92 S.Ct. 1221, 1224-1225, 31 L.Ed.2d 536, 540-541 (1971); Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 89 L. Ed. 1692 (1945); Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567, 572 (1880); United States v. De Alba-Conrado, 481 F.2d 1266, 1270 (5th Cir. 1973). The only question for our consideration is whether any constitutional impropriety is discernible in the granting of excuses to members of the Jewish faith in this case.
Initially, we would note that the trial judge did not exclude members of the Jewish faith, but rather sought to accommodate their religious proclivities by announcing that those who desired to be excused could upon request be absolved from jury service. Hence, this case is readily distinguishable from those wherein judicial disapprobation was occasioned by a wholesale exclusion of a particular class. Cf., e. g., Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946) ( ); Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) ( ). Nor is this a case where the absence of a particular race or religious group from a jury was procured by or can be ascribed to a deviation from the appropriate and customary jury selection practice. Cf., e. g., Alexander v. Louisiana, supra; Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Pierre v. Louisiana, 306 U.S. 354, 59 S. Ct. 536, 83 L.Ed. 757 (1939). The trial judge's explanation for his granting of the dispensations in this case, referred to above, dispels any such suggestion.
Thus, this case is comparable to United States v. Suskin, 450 F.2d 596, 599 (2d Cir. 1971) where the Second Circuit held that similar efforts by a district judge solicitous of the religious practices of members of the Jewish faith did not violate the Jury Selection & Service Act of 1968, 28 U.S.C. § 1861 et seq. (1970). This conclusion was reached despite the fact that § 1862 specifically proscribes the exclusion of any citizen from grand or petit...
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