Henson v. Wyrick, 79-1808

• Citation: 634 F.2d 1080
• Decision Date: 12 November 1980
• Docket Number: No. 79-1808,79-1808
• Parties: John Dale HENSON, Appellant, v. Donald WYRICK, Warden, Missouri State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1080

634 F.2d 1080

John Dale HENSON, Appellant, v. Donald WYRICK, Warden, Missouri State Penitentiary, Appellee.

No. 79-1808.

United States Court of Appeals,

Eighth Circuit.

Submitted April 29, 1980.

Decided Nov. 12, 1980.

Cynthia S. Holmes, St. Louis, Mo., for appellant.

John Ashcroft, Atty. Gen., Michael Elbein, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, Chief Judge, STEPHENSON, Circuit Judge, and THOMAS, ^* Senior District Judge.

LAY, Chief Judge.

John Dale Henson is a Missouri state prisoner serving a sentence of 35 years for conviction, in Circuit Court of Butler County, Missouri, of second-degree murder. Henson claimed the homicide was in self defense or an accident. His petition for a writ of habeas corpus contends, among other things, that the jury selection process used in his trial violated the due process and equal protection clauses of the fourteenth amendment.

Petitioner contends the sheriff or his deputies selected bystander jurors for his trial upon order of the court pursuant to Mo.Rev.Stat. § 494.250(2). Petitioner contends that two of the sheriff's deputies investigated the homicide and testified at trial. In the evidentiary proceeding before the magistrate, the sheriff testified that to select bystander jurors he would go through the phone book or a list prepared by his office and, knowing the people in the county, select "regular citizens (and) high standard people to be jurors." The sheriff admitted that he would sometimes select jurors without relying on the phone book by calling people he thought would be available. Other times the sheriff would select standby jurors from local banks or businesses. The sheriff generally knew all the people he called. He made a conscious effort to select "solid citizens" and persons whom jury service would not inconvenience, e. g., retired persons or, in the winter, farmers. The sheriff's office deputy, who aided in the selection of standby jurors, stated: "We would serve no one that we didn't think would be reliable, dependable person to be a good juror."

The sheriff testified that he was not personally involved in the investigation of the crime for which Henson was convicted. The deputy sheriff who was primarily responsible for the investigation of the defendant's crime testified that he was not involved in selecting jurors or bystander jurors, serving subpoenas on jurors, or compiling the list of bystander jurors. The sheriff selected fourteen of his acquaintances to complete the venire panel for Henson's trial. Seven of the twelve petit jurors came from the sheriff's hand-picked list.

Contemporaneous Objection.

The state argues that the petitioner is precluded from raising an objection to the method of selection of bystander jurors under the contemporaneous objection requirement of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). On direct appeal of Henson's conviction, the Missouri Court of Appeals affirmed the trial court's refusal to grant Henson's motion to quash the jury panel because the Court of Appeals found insufficient factual support for Henson's allegations about improper selection of bystander jurors. State v. Henson, 552 S.W.2d 378, 382 (Mo.App.1977). By reaching the issue of the sufficiency of the evidence, the Missouri court impliedly recognized that Henson preserved his objection at trial. The Missouri Attorney General's Wainwright v. Sykes objection seems anomalous in light of this finding by the highest court of Missouri that Henson had made an objection at trial. We agree with the findings by the United States Magistrate in Henson v. Wyrick, No. 78-970C(4) (E.D.Mo. April 20, 1979) and the district court, No. 78-970C(3) (E.D.Mo. September 6, 1979), that no Missouri procedural requirement prevents federal jurisdiction over the constitutional issue raised by Henson's petition.

Denial of Due Process.

The issue in this case is whether a sheriff whose subordinates investigated and arrested the defendant for a crime has violated the defendant's due process rights by hand-picking from among the sheriff's acquaintances the bystanders who became petit jurors. There appears to be no controlling Supreme Court or Eighth Circuit authority. The state argues that Cravens v. United States, 62 F.2d 261 (8th Cir.), cert. denied, 289 U.S. 733, 53 S.Ct. 594, 77 L.Ed. 1481 (1933), authorizes a sheriff to hand-pick bystander jurors unless the sheriff was active in the investigation and prosecution of the defendant. Cravens does not involve a due process claim but involves rather the interpretation of when a marshal is "interested" in a prosecution within the meaning of a now repealed federal statute. ¹ Id. at 271. Cravens held that federal district courts did not have to appoint a disinterested person to select bystander jurors, and could rely on the marshal to select such jurors, when the marshal was not "interested in the cause." Id. ² In addition to involving different substantive law, Cravens is factually distinguishable from this case in two important respects. First, in Cravens, there was no indication that the marshal selected the bystander jurors from among his acquaintances. In this case, the sheriff hand-picked his acquaintances as jurors. Secondly, in Cravens, the marshal was found to have no "interest" in the case inasmuch as he had not been involved with the investigation, investigators, prosecution or prosecutors. In this case, however, the sheriff's subordinates were responsible for the investigation and arrest of the defendant. Because Cravens involved a federal statute and not the Constitution, these distinctions are not dispositive of the issue presented here. Nevertheless, this court's recognition in Cravens of the fundamental unfairness of an interested official hand-picking the bystander panel is the central concern in this case. See also Johnson v. United States, 247 F. 92 (9th Cir. 1917).

Judicial and Congressional Concern With Abuse of Discretion in Jury Selection.

The issue of the sheriff's hand-picking jurors came before this court in another Missouri state prisoner's habeas petition in Ross v. Wyrick, 581 F.2d 172 (8th Cir. 1978). In Ross, this court held the sheriff's personal selection of black persons for a venire panel in a criminal case did not cure the unconstitutional underrepresentation of blacks on the master jury list. Id. at 175. Although it is unclear whether Ross's holding was based on the defective master jury list, the sheriff's arbitrary selection, or both, id. at 175 n.8, there is no question that this court was concerned with the opportunity for the sheriff to abuse his or her discretion in selecting venire panel members. Id. at 174-75.

This court's statements in Ross about the potential for officers to abuse their discretion in selecting jurors echoed the longstanding concerns of other federal courts. Glasser v. United States, 315 U.S. 60, 85-86, 62 S.Ct. 457, 471-472, 86 L.Ed. 680 (1942) (dictum); Cravens v. United States, 62 F.2d 261, 271 (8th Cir. 1933) (dictum); Gideon v. United States, 52 F.2d 427, 429 (8th Cir. 1931) (clerk of court abused discretion by sending out a questionnaire to prospective jurors); United States v. Gordon, 253 F.2d 177, 184 (7th Cir. 1958) (dictum); United States v. Dennis, 183 F.2d 201, 220-21 (2d Cir. 1950) (dictum), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951); Ippolito v. United States, 108 F.2d 668, 669-70 (6th Cir. 1940) (dictum); Johnson v. United States, 247 F. 92 (9th Cir. 1917) (special officer should have been appointed to select bystander jurors where marshal was personally involved in the investigation of defendant); Humes v. Robbins, 128 F.Supp. 586 (D.Me.1955) (dictum). The Supreme Court described the potential dangers of excessive discretion in officials who select jurors in Glasser :

And, its (the duty of selecting jurors) exercise must always accord with the fact that the proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a "body truly representative of the community," and not the organ of any special group or class. If that requirement is observed, the officials charged with choosing federal jurors may exercise some discretion to the end that competent jurors may be called. But they must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross-section of the community. Tendencies, no matter how slight, toward the selection of jurors by any method other than a process which will insure a trial by a representative group are undermining processes weakening the institution of jury trial, and should be sturdily resisted. That the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may, one by one, lead to the irretrievable impairment of substantial liberties.

315 U.S. at 85-86, 62 S.Ct. at 471-472. See also Murrah v. State, 532 F.2d 105 (8th Cir. 1976).

Congressional concern for fundamental fairness in the method of selecting bystander jurors has caused federal selection methods to evolve from one of marshals selecting bystanders from persons present in court ³ to a method of random selection from specified lists in a manner ordered by the court. ⁴ This legislative change was prompted in large part by congressional desires to eliminate "subjective screening" of potential jurors. H.R.Rep. No. 1076, 90th Cong., 2d Sess., reprinted in (1968) U.S.Code Cong. & Ad.News, pp. 1792, 1794, 1797.

Furthermore, many state courts have also expressed concern over the unbridled discretion of officials in the selection of bystander jurors. See State v. Olek, 288 Minn. 235, 179 N.W.2d 320, 326 (1970) (after sheriff had picked two persons personally acquainted with him to complete a venire panel, the court ordered the sheriff to select eight others who were...