Hill v. State
| Decision Date | 20 January 1976 |
| Docket Number | 4 Div. 347 |
| Parties | Robert HILL v. STATE |
| Court | Alabama Court of Criminal Appeals |
Bryant F. Williams, Jr., Ozark, for appellant.
William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
By a petition for writ of error coram nobis, petitioner, now the appellant from a denial of the petition, sought to nullify his conviction of murder in the first degree which has been affirmed on appeal and reported as Hill v. State, 53 Ala.App. 23, 296 So.2d 921. The proceeding was instituted by petitioner pro se, but he has had the benefit of diligent appointed counsel, both on the hearing below and on appeal.
The gravamen is that he was denied due process of law and equal protection of the laws, guaranteed to him by the Fourteenth Amendment to the Constitution of the United States. In the original petition drafted by him, he complains that he was indicted by an all-white grand jury and tried by an all-white petit jury. The petition was broadened by his attorneys by amendment, wherein it was charged that 'the jury roll at the time of petitioner's trial was arbitrarily composed such that it offered no adequate representation of a cross-section of the community,' and that it contained 'an insufficient percentage of Blacks, denying petitioner due process of law . . . by systematically excluding Blacks and by failing to be adequately representative of the community.'
A lengthy hearing was conducted, in which several witnesses testified and voluminous documents were offered in evidence, including 'the jury roll itself' at the time of the hearing on the petition.
The murder trial was in June 1972. The coram nobis petition was filed in September 1974. In its brief the State challenges, and in response to the petition in the court below it challenged, the right of petitioner to maintain a proceeding for post-conviction relief on the ground of discrimination in the process for obtaining the grand jury and petit jury that indicted and convicted defendant, urging that defendant's failure to bring the matter to the attention of the court before or during trial constituted a waiver of his ground of complaint. It was so held in Morris v. Sullivan,497 F.2d 544 (5th Cir. 1974). In so holding the court followed the Alabama decisional law on the subject. Ex parte Seals, 271 Ala. 622, 126 So.2d 474 (1961); Hamilton v. State, 283 Ala. 540, 219 So.2d 369; Washington v. State, 269 Ala. 146, 112 So.2d 179. The court also held that its decision was in accord with, and that an opposite decision would be contrary to, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 and Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357.
There is a general allegation in the amended coram nobis petition, unsupported by any evidence, that the facts alleged in the petition 'were not known to petitioner or to the Court at the time of trial.' The petition gives no reason for the petitioner's not knowing such facts. Furthermore, the record indicates, if it does not conclusively show, that on the trial of the murder case, petitioner and his attorney knew as much about the composition of and the method of constituting the jury roll and the jury box, as they did at the time of the filing of the coram nobis petition.
Appellant's failure to protest, at the most appropriate time, against an alleged invasion of his constitutional right to a representative jury, that is, a jury or a jury roll in which his particular race would be constitutionally represented, was not a mere waiver of his right. With knowledge at the time of trial of the facts forming a basis for an objection to trial, it constitutes a specie of estoppel for one to forego an objection and proceed with the trial in the hope, often a lively hope, of a verdict in his favor. After such a venture that has failed, he should not be permitted to obtain another trial by the assertion of a claim he could have made before his trial.
Notwithstanding our conclusions hereinabove expressed, we will proceed to consider the other issues on this appeal.
A large part of the testimony was more in the nature of evidence taken in a discovery proceeding than in a hearing on the issues presented by the petition and answer of the State. No criticism is directed at anyone in this respect, but witnesses were called upon at times to give their opinion or judgment or estimate without any assurance that the same would be accurate. As a result, there are conflicts and confusion in the record as to the number, race, and percentage of specific races in the jury box and in the jury roll at particular times. However, there seems to be no basis for a dispute as to 1970 census figures showing that there were 29,559 persons 21 years of age or over in Dale County, that 25,839 were white and 3,276 were black, or approximately eighty-nine percent white and eleven percent black. The jury roll introduced in evidence by petitioner, and used largely as a basis for the charge of discrimination, contained 2,881 names at the time of the hearing on the coram nobis petition. Of these names, 334, between eleven and twelve percent, were black.
In the original pro se petition, filed soon after petitioner started serving his sentence, petitioner seemed to be basing it chiefly upon Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), to which reference was repeatedly made in the petition. Peters v. Kiff stands preeminently for the proposition, not theretofore decided by the Supreme Court, that a white person has standing to assert a claim of unconstitutional discrimination against the Negro race in the preliminary process to obtain a jury for the trial of his case. Though he focused his attention upon that case, we find no further reference to it, and we do not understand that he claims that his case is like Peters v. Kiff in the particular respect noted, but whether so or not, it would make no difference according to the case, and we are bound by it.
The basic contentions of appellant are (1) that the jury roll at the time of the drawing of jurors for his trial in 1972 did not contain enough names of qualified jurors to assure a fair trial by an impartial jury and (2) that the composition of the grand jury that indicted petitioner and the petit jury venire from which the jury was selected that tried him was so weighted against the Negro race as to 'establish a prima facie case of discrimination unrebutted by the state.' In addition, appellant urges that the trial court erred in sustaining the State's objections to certain questions asked by petitioner's counsel relative to a difference in the composition of the jury roll at the time of trial and at the time of the coram nobis hearing, more than two years after the trial.
There was no memorial of the number of jurors on the jury roll at the time of the trial, but from rather unsatisfactory and inconclusive statements by some of the witnesses, it seems that about 2,500 or 3,000 were on the jury roll at that time. The evidence is so unsatisfactory as to the particular point that we do not find that appellant in his brief attempts to state his view as to the number. We should note also that in contending that there were not enough jurors in the jury box to represent a cross section of the county, appellant in his brief refers at times to the jury roll at the time of the coram nobis hearing rather than to the jury roll at the time of the trial. He says that there is testimony 'to the effect that in 1972 only 1,500 to 2,000 names were on the jury roll.' What the particular witness said was that there were approximately 4,000 names on the jury roll at the time of his testimony and that 1,500 to 2,000 had been added since June 1972. This would make, it seems, 2,000 to 2,500 on the jury roll in 1972, if it is assumed that all of the names on the roll in June 1972 remained thereon until the coram nobis hearing, which certainly cannot be assumed.
Even though the record supports the contention that no more than about eight or ten percent of persons 21 years of age or over in Dale County were enrolled for jury service at the time of defendant's trial, there is no evidence in the record that such number did not represent cross section of the county. Although a much larger percentage would have made the roll more like Caesar's wife should have been, the percentage is not so small as to furnish a presumption of purposeful discrimination so as to place the burden upon the State to disprove the charge.
In support of his apparent thesis that the number of persons on the jury roll at the time of defendant's indictment and trial was so small that it did not furnish a cross section of the county, appellant cites State ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970); Bokulich v. Jury Commission, 298 F.Supp. 181 (N.D.Ala.1968); Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966); White v. Crook, 251 F.Supp. 401 (M.D.Ala.1966); Turner v. Spencer, 261 F.Supp. 542 (S.D.Ala.1966). None of the cases supports the proposition advanced. State ex rel. Gregg v. Maples stands preeminently for the principle that a list of voters could not be validly prescribed and used as the list from which the names of prospective jurors are to be obtained. In Bokulich, the court looked at both the procedure and the result the result being a much smaller (about one-half) percentage of Negroes than whites from the jury roll in Greene County, in which the percentage of Negro residents was about twice that of whites. In Mitchell v. Johnson, the system that produced the result of about one-half the number of Negroes as white on the jury roll in the county (Macon), composed of four times as many Negroes as whites, was declared unconstitutional. In White v. Crook, the result of the system employed was that in a county (Lowndes)...
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