Hicks v. State

• Decision Date: 18 February 1970
• Docket Number: No. 282,282
• Citation: 262 A.2d 66,9 Md.App. 25
• Parties: John HICKS, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 25

9 Md.App. 25

262 A.2d 66

John HICKS, Jr. v. STATE of Maryland.

No. 282.

Court of Special Appeals of Maryland.

Feb. 18, 1970.

William H. Zinman, Baltimore, with whom was John D. Hackett, Baltimore, on brief, for appellant.

Donald Needle, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, jr., State's Atty., George A. Eichhorn, III, Asst. State's Atty., for Baltimore City, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

John Hicks, Jr. (appellant) was found guilty by a jury in the Criminal Court of Baltimore of three offenses, jointly tried, of robbery with a deadly weapon. The judgments are reversed.

When the indictments came of for trial, appellant was again arraigned, entered pleas of not guilty, and prayed a trial by jury. The court said to the Clerk, 'All right. Now, why don't you swear them in and then counsel will approach the bench with questions, and we will continue.' The transcript of the proceedings reads: '(The prospective jury panel was sworn and questioned on their voir dire).' It is obvious from the transcript, however, that the jury was not then questioned on their voir dire, and we can construe it in no other way. The transcript continued immediately thereafter:

'MR. ZINMAN: (defense counsel) It is the position of the defendant that in counting the jurors, amongst I think several panels, there appears to be about six, and approximately no more than eight, Negroes on all of the collective panels. On the basis of that, and on the basis of the statistics, of statistical studies that have been taken over the past few years, it would be our contention that there may be intentional jury packing to the exclusion of Negroes and residents of the inner-city of Baltimore, and also residents who earn less than five thousand dollars a year. In addition, I would like to have the following questions propounded to the panel, number one-

THE COURT: Just before we get to that, are you making any motion?

MR. ZINMAN: I would like to make a motion to challenge the array on the ground of a disproportionate, a substantial disproportion which may really reflect prejudice either economical or racial, and economic and geographic prejudice in the selection of the jurors.

THE COURT: Is that the motion, before you ask the question?

MR. ZINMAN: Yes.

THE COURT: Motion denied.

MR. ZINMAN: I would proffer that we have statistics that indicate that less than five percent, five to ten percent of the jury of Baltimore City now, and for the last three years, have been Negroes, and that we would be prepared to prove this by statistics that is taken from the point of voter registration, Negroes comprise thirty-eight percent of the voters in Baltimore City, for from the standpoint of population, over fifty-five percent, and further that a substantial proportion of jurors in Baltimore City and on this jury panel come from and reside in the suburban areas, and are substantially volunteers, and that further there are many people on this jury who are employees of the Baltimore City Transit Company, and other companies to whom the salary was paid while they also receive their payment as jurors, thereby creating a professional corps of jurors, and further that there are a substantial number of these jurors, probably over fifty percent, we would proffer, who have in fact served many times on other jurys within the last three years. That would be the basis of our challenge.

THE COURT: As I indicated, the motion is denied.

MR. ZINMAN: I would indicate that the defendant would further allege that as a result this actually deprives him of being judged by a jury of his peers and contravenes the due process and equal protection of law, as well as the Civil Rights Act.

THE COURT: All right.

MR. ZINMAN: I would like you to ask these questions, how many jurors are volunteers, and how many jurors have served previously, and if so, when within the last three years.

THE COURT: All right. The Court does not feel that these questions are pertinent, particularly in view of my denying the motion made by defense with respect to challenging the entire array.

MR. ZINMAN: I would like to have the opportunity to call Stafford Bullen (Jury Commissioner) as a witness.

THE COURT: I have denied the motion.

MR. ZINMAN: I want to further assert, as far as Mr. Bullen is concerned, that it's our contention that the defendant-that Mr. Bullen, as a result of statistics and other evidence that we would proffer, is engaging in the practice of jury selection which is intentional race prejudice and intentional seclusion of Negroes.

THE COURT: Mr. Zinman, let me say this to you on the record. You made your motion. You have not indicated it to the Court previously to this time, and I have ruled on your motion challenging the entire panel, that I find no prejudice, and I have permitted you to proffer what you intended to show. It was not indicated to this Court prior to this time that you wanted to introduce anything.

MR. ZINMAN: Because of the unusual nature, I didn't.

THE COURT: Testimony in this respect?

MR. ZINMAN:...