Herring v. State, 51300

• Decision Date: 22 August 1979
• Docket Number: No. 51300,51300
• Citation: 374 So.2d 784
• Parties: Danny HERRING v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 784

374 So.2d 784

Danny HERRING v. STATE of Mississippi.

No. 51300.

Supreme Court of Mississippi.

Aug. 22, 1979.

Rehearing Denied Sept. 26, 1979.

R. Jess Brown, Firnist J. Alexander, Jr., Everett T. Sanders, Jackson, for appellant.

A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, P. J., and LEE and BOWLING, JJ.

LEE, Justice, for the Court.

Danny Herring was indicted and tried for murder in the Circuit Court of the First Judicial District of Hinds County, Mississippi, Honorable William F. Coleman, presiding. The jury returned a guilty verdict of manslaughter and the trial judge sentenced Herring to a term of eighteen (18) years in the Mississippi State Penitentiary. He appeals and assigns the following errors in the trial below:

(1) The trial court erred in overruling appellant's motion to quash the indictment, venire and panel.

(2) The trial court erred in overruling appellant's motion to extend the trial proceeding into the next succeeding day so as to allow appellant additional time in which to locate an indispensible witness.

(3) The trial court erred in admitting pictures into evidence over the objection of appellant and further erred in admitting testimony pursuant thereto.

(4) The verdict of the jury is contrary to the overwhelming weight of the evidence.

I.

Appellant first contends that the trial court erred in overruling his motion to quash the indictment, venire and panel. The motion was heard upon stipulation by the State and the appellant, that the 1970 Census figures show, for persons twenty-one (21) years of age and over in Hinds County, total population to be 121,265; total number of non-whites to be 39,870; total number of whites to be 81,395; and total number of females to be 66,752. The 1960 Census figures show, for said persons, total population to be 103,974; total number of non-whites to be 26,138; total number of whites to be 67,386; and total number of females to be 56,287 (we do not vouch for the accuracy of the Census figures). For the past thirteen (13) years, grand juries were called in the First Judicial District of Hinds County and a different foreman was selected by the trial judge during each of those terms for a total of thirty-nine (39) grand jury foremen. The grand jury foreman selected for the March 1978 Term of court was James H. Russell, a white male person, and he was foreman of the Fortieth Grand Jury in consecutive order. From March, 1965 through March, 1978, none of the grand jury foremen were members of the black race, although there have been three (3) white forewomen. The composition of the grand juries by race and sex was not indicated.

The duties of a grand jury are set out in Mississippi Code Annotated Sections 13-5-45 and 13-5-47 (1972). The only authority of the foreman above that of the other grand jurors is the power to order subpoenas for witnesses desired to be produced and the power to swear witnesses (Mississippi Code Annotated Section 13-5-63 (1972)). In addition, the law requires that all indictments must be presented to the court by the grand jury foreman with his name endorsed thereon (Mississippi Code Annotated Section 99-7-9 (1972)). As a matter of common practice, any member of the grand jury may request the issuance of subpoenas and may call for any information or investigation authorized by law.

Appellant has not attempted to attack the makeup of, or the manner of selecting, the grand jury, nor does he contend that the grand jury was selected in an unconstitutional and discriminatory manner. The motion went to the sole proposition that the indictment was void because black foremen (forewomen) were systematically excluded in such capacity on the grand jury, and that females were likewise excluded.

Appellant cites Mitchell v. Rose, 570 F.2d 129 (6th Cir. 1978) (cert. granted to U. S. Supreme Court), a Tennessee case, which held that the appellant Mitchell established a prima facie case of racial discrimination in the appointment of grand jury foremen and forewomen, since the evidence showed that no black foremen or forewomen had ever been selected and in view of the trial judge's admission that he "never really gave any thought" to appointing black foremen or forewomen of the grand jury.

Tennessee uses the "key-man" system of jury selection, relying on three jury commissioners, appointed by the trial judge, to select a pool of prospective grand jurors from the general population. Every two years the commissioners meet to select names from the tax records and permanent registration records of the county, or other available and reliable sources. The number of names is determined by the judge. The names are recorded officially in a jury list book, then written on cards, sealed in a box and drawn as needed for jury service. The same list serves as jury pool for both grand and petit jurors.

In Mitchell v. Rose, supra, at 135, the Sixth Circuit Court of Appeals said:

"The position is filled by the trial judge from the general population, thus affording ample opportunity for discrimination, whether conscious or unconscious. While discrimination must be 'intended,' officials who select grand jurors must be considered to have intended the natural results which flow from their conduct . . . "

The method of jury selection in Mississippi is known as the "random" method, which differs from that of Tennessee. Mississippi Code Annotated Section 13-5-2 (Supp.1978) provides the following:

"It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity in accordance with this chapter to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose. A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin, or economic status."

In Mississippi, a jury commission is established in each county by the appointment of three (3) commissioners for four-year terms, one member each being appointed by the circuit judge, the chancery judge, and the board of supervisors of said county. The jury commission compiles and maintains a master list consisting of the voter registration lists of the county. From the master list, a certain number of prospective jurors, as provided by Section 13-5-10, Mississippi Code Annotated (1972), are selected and placed in the jury wheel. They are selected by the jury commission at random from the master list in the following manner:

"The total number of names on the master list shall be divided by the number of names to be placed in the jury wheel; the whole number nearest the quotient shall be the 'key number,' except that the key number shall never be less than two (2). A 'starting number' for making the selection shall then be determined by a random method from the number from one (1) to the key number, both inclusive. The required number of names shall then be selected from the master list by taking in order the first name on the master list corresponding to the starting number and then successively the names appearing in the master list at intervals equal to the key number, recommencing if necessary at the start of the list until the required number of names has been selected. . . . " Miss.Code Ann. § 13-5-12 (Supp.1978).

Prior to the term of court where jurors are required, upon order of the court, a private citizen, who does not have an interest in a case pending trial and who is not a practicing attorney, publicly draws at random from the jury wheel the names or identifying numbers of as many prospective jurors as the court by order requires. Mississippi Code Annotated Section 13-5-16 (Supp.1978).

Formerly, when court convened, names of jurors selected from each supervisor's district were drawn in open court from five (5) separate boxes or compartments representing those districts. Under the present system, district lines are obliterated, and, upon direction of the trial judge, the clerk draws the required number of grand jurors (usually eighteen (18)) from one (1) box containing all names of prospective jurors for the week. After the grand jurors are so selected, the trial judge is required by Mississippi Code Annotated Section 13-5-45 (1972) to appoint a member of the grand jury to be foreman. When appointed, the foreman is administered the statutory oath and the other grand jurors are administered an oath that they will be bound by the same oath taken by the foreman.

Thus, in Mississippi (unlike Tennessee) the grand jury foreman is appointed from a selection method, which, from the very inception, has been a random process and non-discriminatory. No attack has been made upon the constitutionality of that selection method. In Mitchell v. Rose, supra, at 134, the Court of Appeals stated:

"While the facial constitutionality of the key man system has been upheld, it has been frequently recognized as a method particularly subject to abuse, and therefore subject to close scrutiny by the courts. We note, as has the Supreme Court on numerous occasions, that random selection methods similar to the federal system would avoid most of the potential for abuse found in the key man system, and would probably eliminate challenges such as the State of Tennessee faces here." 570 F.2d at 134, fn. 5.

In Rose v. Mitchell, --- U.S. ----, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979) (Cert. granted from the Sixth Circuit Court of Appeals), reversing the Sixth Circuit Court of Appeals, the United States Supreme Court held that the respondents had not made out a prima facie case of discrimination in the selection of grand jury foremen. Their case was supported by the recollections of the trial judge, the testimony of three (3) jury commissioners and the testimony of three (3) former foremen. The jury...