Guice v. Fortenberry

• Decision Date: 29 December 1980
• Docket Number: No. 80-3350,80-3350
• Citation: Guice v. Fortenberry, 633 F.2d 699 (5th Cir. 1980)
• Parties: Billy GUICE and Howard Claxton, Sr., Petitioners-Appellants, v. Ray FORTENBERRY, Superintendent, East Carroll Parish Prison Farm, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 699

633 F.2d 699

Billy GUICE and Howard Claxton, Sr., Petitioners-Appellants, v. Ray FORTENBERRY, Superintendent, East Carroll Parish Prison Farm, Respondent-Appellee.

No. 80-3350.

United States Court of Appeals Fifth Circuit.

Dec. 29, 1980.

George M. Strickler, Jr., New Orleans, La., Samuel Thomas, Tallulah, La., for petitioners-appellants.

James Caldwell, Dist. Atty., Tallulah, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before THORNBERRY, GEE and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

This is an appeal from a denial of a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. In October of 1979, Billy Guice and Howard Claxton were convicted of "unlawful use of a moveable," a misdemeanor, in violation of La.Rev.Stat.Ann. § 14:68 (West 1974), which is a lesser included offense of theft under Louisiana law. State v. Reeves, 342 So.2d 605 (La.1977). Each petitioner was sentenced to six months imprisonment.

Petitioners contend that their convictions cannot stand under the Equal Protection Clause of the Fourteenth Amendment because the indictments that charged them with theft were returned by a grand jury from which blacks were systematically excluded as foreman and because the grand jury that indicted them was drawn from a venire selected by a jury commission from which blacks were systematically excluded. We affirm, holding that petitioners failed to prove a prima facie case of discrimination.

I.

Petitioners are the police chief and assistant police chief of Tallulah, Louisiana. Both men are black. In June of 1979, petitioners were indicted by a Madison Parish grand jury for theft of $5,000. The indictment charged that petitioners took the money for their own use from a larger sum recovered by police shortly after the robbery of a grocery store in Tallulah. ¹

Petitioners were convicted by a unanimous six-member jury consisting of five women and one man, of whom two were black and four were white. The petit jury venire from which the jury was drawn contained 27 blacks and 33 whites. The testimony and stipulations in the hearings on petitioners' pretrial motions in state court to quash the indictments and jury commission ² reveal that although the population of Madison Parish is approximately 60% black, no black had ever been appointed to be foreman of the grand jury. ³

Under Louisiana law, the foreman of the twelve person grand jury is appointed by a state district judge. La. Code Crim.Pro.Ann. art. 413 (West 1967). The foreman is selected by the judge from the grand jury venire, id., which is randomly drawn from the general venire and consists of at least twenty but not more than 100 persons. La. Code Crim.Pro.Ann. art. 411 (West Supp.1980). The other eleven members of the grand jury are drawn randomly from the remaining names on the grand jury venire. La. Code Crim.Pro.Ann. art. 413. The testimony adduced during the hearings on the pretrial motions in state court reflects that in Madison Parish the state district judge requires the jury commission to draw from the general venire forty names to constitute the grand jury venire and sixty names to constitute the petit jury venire. By law the general venire must consist of at least 300 names, La. Code Crim.Pro.Ann. art. 408. (West Supp.1980), but the evidence shows that in Madison Parish the jury commission is required to draw at least 600 names to constitute the general venire.

The general venire in Madison Parish is randomly drawn from a larger list, which attempts to include all persons in the parish who are eligible for jury service. ⁴ The source of this larger list consists primarily of the list of registered voters in the parish. However, there was testimony by members of the Madison Parish jury commission that they supplemented the voter registration list with names from the local telephone directory, high school annuals, and their own personal knowledge.

In response to questioning concerning the criteria used for selecting a grand jury foreman, Judge Adams, the state judge for the parish in which petitioners were indicted and convicted, testified that he attempted to appoint the best qualified person from the list of names submitted to him on the grand jury venire. He stated that he looked for a person he knew who was able to preside over the body and administer oaths, a person who was not just able to read and write, but who was articulate as well, and a person who, if necessary, would stand up to the district attorney. The judge also said he considered a person's morals when making his decision to appoint a new grand jury foreman. When asked whether he had ever found a black person with these qualities, the judge responded:

"Yes, I've been tempted to try it. But I still in my humble opinion I pick the one that I thought was best qualified for the job and I believe that sincerely that the law gave me that right and that discretion and authority and I would have been remissed (sic) had I not used it. I don't have any scruples or feelings against appointing a black as a foreman and I'll say this, there will be blacks on there but as of this moment the ones that I have felt were the ones that were best suited were the ones that were appointed."

The jury commission in a Louisiana parish consists of five members who must possess the same general qualifications as do jurors. La. Code Crim.Pro.Ann. art. 404 A(1) (West Supp.1980). In Madison Parish, the jury commission consists of the elected clerk of court and four other members who are appointed by the judge and serve at his pleasure. La. Code Crim.Pro.Ann. art. 404 A(2). The jury commission is required to meet at least once every six months for the purpose of selecting or supplementing the general venire. La. Code Crim.Pro.Ann. art. 408 C (West Supp.1980). At each such meeting the commission is required to examine the general venire and to delete the names from that list of persons who have served as jurors since the previous selection of the general venire. La. Code Crim.Pro.Ann. art. 410 (West Supp.1980). Moreover, by rule of the Louisiana Supreme Court:

"The jury commission shall not include in, and shall delete from, the general venire the names of those persons who have served as grand or petit jurors in criminal cases ... during a period of two years immediately preceding their selection for jury service. However, if the name of such a person is included in a general venire, that person may claim an exemption from jury service or may waive the exemption."

La.Sup.Ct.R. 25, § 4.

Prior to January 1, 1967, the jury commission in Madison Parish consisted of five members selected by the judge in addition to the clerk of court as an ex-officio member. Art. 175, 1928 La.Code Crim.Pro. When Judge Adams assumed the bench in 1963, he reappointed the same people who had served as members of the jury commission under his predecessor. At that time, the jury commission used discretion in deciding who was qualified and eligible to serve as a juror. Each member of the commission would furnish a list of eligible jurors from his area. Judge Adams testified that since he had been in office vacancies have occurred in the commission only through attrition. However, in 1967, when the law was changed to its current provision, the appointed members of the Madison Parish Jury Commission resigned. Judge Adams at that time appointed the first black to the commission. The other vacancies were filled by the reappointment of two members of the old commission, both white, and the appointment of another white. Since 1967, six vacancies have occurred on the jury commission. Three vacancies have been filled by blacks, and three have been filled by whites. Nonetheless, only one member of the four appointed commissioners has been black at any one time, and each black appointed to the commission, except the first black appointed in 1967, has filled a seat vacated by a black commissioner who resigned. ⁵ Therefore, petitioners contend that blacks are underrepresented on and excluded from the jury commission.

II.

In order to show that an equal protection violation has occurred in the context of the selection of grand jury foremen, ⁶ the petitioners "must show that the procedure employed resulted in substantial underrepresentation of (their) race or of the identifiable group to which (they belong)." Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977). The Supreme Court has held that a criminal defendant must prove the following in order to establish a prima facie case of discrimination in the selection of grand jury foremen:

"The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied .... Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as (foreman), over a significant period of time .... The method of proof, sometimes called the 'rule of exclusion,' has been held to be available as a method of proving discrimination in jury selection against a delineated class .... Finally ... a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption raised by the statistical showing."

Rose v. Mitchell, 443 U.S. 545, 563, 99 S.Ct. 2993, 3005, 61 L.Ed.2d 739 (1979) (quoting Castaneda, 430 U.S. at 494, 97 S.Ct. at 1280) (brackets in original).

Since both petitioners are black, there is, therefore, "no question ... that ... (they) are members of a group recognizable as a distinct class capable of being singled out for different treatment under the laws." Rose v. Mitchell, 443 U.S. at 563, 99 S.Ct. at 3005. Moreover, the method of selecting grand jury foremen in Madison Parish is certainly a "procedure that is susceptible of abuse." Although the...