Hopkins v. State

• Decision Date: 26 November 1973
• Docket Number: No. 247,247
• Citation: 311 A.2d 483,19 Md.App. 414
• Parties: Charles Kenneth HOPKINS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 414

19 Md.App. 414

311 A.2d 483

Charles Kenneth HOPKINS v. STATE of Maryland.

No. 247.

Court of Special Appeals of Maryland.

Nov. 26, 1973.

Certiorari Denied Mar. 18, 1974.

Gary R. Alexander, Oxon Hill, for appellant.

David B. Allen, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., for Prince George's County, Richard Sothoron and Kenneth Lore, Asst. State's Attys., for Prince George's County, on the brief, for appellee.

Argued before ORTH, C. J., and MORTON and GILBERT, JJ.

GILBERT, Judge.

Charles Kenneth Hopkins was found guilty by a jury, presided over by Judge Perry G. Bowen, Jr., in the Circuit Court for Calvert County, of murder in the first degree and armed robbery. The evidence of appellant's criminal agency was overwhelming. The State produced testimony from an eye witness and an accomplice that appellant was the 'trigger man' who had killed an off-duty park police officer during the course of a robbery of a Seven-eleven store in Prince George's County. In addition, the State showed that the appellant had admitted the shooting to an acquaintance and the appellant's written confession was read into evidence.

In this Court appellant maintains:

I. 'The Lower Court erred in refusing to grant the motions challenging the array of the Grand Jury and Petit Jury based upon systematic and discriminatory exclusions of non-voters and persons between the ages of 18 and 21 years thereby denying the Defendant his constitutional right of trial by jury of his peers.'

II. 'The Lower Court erred in denying Defendant's Motion to Suppress the confession which was obtained without his consent or understanding while under the influence of narcotics in violation of his constitutional rights.'

III. 'The Lower Court erred in admitting into evidence medical opinions and conclusions contained in the autopsy report without the presence of an expert witness.'

IV. 'The Lower Court erred in failing to allow Defense Counsel to pursue and obtain evidence as to what was presented to the Grand Jury after ruling that certain evidence of the State was inadmissible.'

V. 'The Lower Court erred in denying Defense Counsel access to the Freeman written statement for the purpose of impeachment and use during trial.'

I.

In Wilkins v. State, 16 Md.App. 587, 300 A.2d 411 (1973), aff'd Md., 310 A.2d 39 (1973), we were confronted with a constitutional attack on Md.Ann.Code art. 51, § 3. In that case the thrust of the argument was that citizens of this State, eligible to vote, but unregistered, were excluded from jury duty and the exclusion, Wilkins asserted, was unconstitutional. Intertwined with that contention was the assertion that persons between ages eighteen and twenty-one were also unconstitutionally denied service upon juries. Because Wilkins failed to demonstrate in the trial court 'that persons between the ages of 18 and 21 are a 'cognizable' group,' we did not reach the constititionality, vel non, of the statutory exclusion of these persons from jury service. We said we would await 'the day when this interesting issue may be squarely met and decided.' That day has arrived.

In this case the appellant established that the population of Prince George's County ¹-the place of the crime and the indictment-according to the 1970 census, was 660,567 people. Approximately five percent (5%) of those persons, or 37,512 persons, are in the eighteen to twenty-one years age bracket; 241,070 citizens of Prince George's County are registered voters and approximately four percent (4%), or 11,426 persons, fall within the eighteen to twenty-one year old range. Appellant argues that the exclusion of the eighteen to twenty-one year old group from grand and petit juries is discriminatory. He says that the requirements of a 'cross section of the citizens of the State' means that no identifiable group in the community may be systematically excluded.

The gist of the appellant's argument is that because eighteen to twenty-one year olds have been constitutionally mandated to be a cognizable group for the purpose of viting, they must be considered to be a cognizable group for the purpose of serving as jurors.

Section 1 of the Twenty-Sixth Amendment to the Constitution of the United States provides:

'The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.' ²

At the time of the indictment in the instant case, Md.Ann.Code art. 51, § 1, provided:

'Whenever a litigant in a court of this State is entitled to trial by jury, he shall have the right to a petit jury selected at random from a fair cross section of the citizens of this State resident in the county wherein the court convenes or in Baltimore City if the court convenes therein. Whenever a person is accused of an indictable criminal offense under the laws of this State, he shall have the right to a grand jury selected at random from a fair cross section of the citizens of this State resident in the county wherein the court convenes or in Baltimore City if the court convenes therein. All citizens of this State (1) shall have the opportunity to be considered for service on grand and petit juries in the courts of this State by maintaining their names on the roll of registered voters for State elections, and (2) shall have an obligation to serve as jurors when summoned for that purpose.' ³

Section 2 thereof provides that:

'No citizen shall be excluded from service as a grand or petit juror in the courts of this State on account of race, color, religion, sex, national origin, or economic status.'

The then § 3 of the same article stated:

'The names of prospective jurors shall be seleced from persons 21 years of age or over whose names appear on the voter registration lists for State elections and from such additional sources as may be prescribed in the plan adopted pursuant to § 4. Volunteers for jury service shall be refused, and recommendations, if made, shall not be accepted.' ⁴

Before the enactment of Laws of 1969, ch. 408, it was provided in Md.Ann.Code art. 51, § 3 that no person could serve as a juror until he or she had attained the age of twenty-five years. In Hunt v. State, 12 Md.App. 286, 278 A.2d 637 (1971) we were confronted with a somewhat similar contention to that being raised in the instant appeal. Hunt argued that because he was twenty-one years of age, and jurors were required to be twenty-five years old, he was denied his constitutional right to a trial by a jury of his peers. We said, at 297, 278 A.2d at 644:

'Assuming that those under 25 years of age were eliminated from the jury in Hunt's trial we see no constitutional infirmity. There is nothing unreasonable in requiring a juror to be at least 25 years old. There must be some cut-off point and Hunt does not explain, nor do we see, why equal protection is denied at a 25 years of age cut-off but afforded, as he seems to suggest, at a 21 years of age cut-off. See Britton v. Bullen, 275 F.Supp. 756 (4th Cir.).'

Appellant employs the cliche 'did enough to fight, old enough to vote' and welds thereto the expletive 'old enough to serve as jurors.' He points to the fact that the General Assembly in its 1973 session amended Md.Ann.Code art. 51, § 6(b)(viii) so that effective July 1, 1973, persons eighteen to twenty-one years of age, and who were otherwise eligible, could serve as members of juries. See Laws of 1973, ch. 651, § 25. Irrespective of the current statutory proviso, there is no constitutional requirement that persons eighteen to twenty-one years old must serve on juries.

In United States v. Guzman, 337 F.Supp. 140 (S.D.N.Y.1972), aff'd 468 F.2d 1245 (2d Cir. 1972), a contention identical to that raised in this case was before the United States District Court. We are persuaded by the reasoning of Judge Metzner in Guzman and we adopt it. The judge said, at 144:

'There is simply no justification for defendant's claim that merely because 18-to-21-year-olds have been given the right to vote, the Constitution compels that they be given the right to serve on juries. The right to vote and the right to sit in judgment of others have certain fundamental differences which cannot be overlooked. The act of voting is a personal expression of favor of disfavor for particular policies, personalities, or laws. . . .

However, when one sits on a jury, he is required to accept and apply the law as the judge gives it to him, ⁵ whether or not he agrees with it and no matter what his personal feelings are toward the parties in question. He must have the maturity and understanding to do what may often be an unpleasant task.'

The weight of authority has concluded that eighteen to twenty-one year-olds have no constitutional right to serve on juries. See inter alia: United States v. Olson, 473 F.2d 686 (8th Cir. 1973), cert. denied, 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 970 (1973); United States v. Gast, 457 F.2d 141 (7th Cir. 1972), cert. denied, 406 U.S. 969, 92 S.Ct. 2426, 32 L.Ed.2d 668 (1972); United States v. Allen, 445 F.2d 849 (5th Cir. 1971); United States v. McVean, 436 F.2d 1120 (5th Cir. 1971), cert. denied, 404 U.S. 822, 92 S.Ct. 45, 30 L.Ed.2d 50 (1971), rehearing denied, 404 U.S. 952, 92 S.Ct. 277, 30 L.Ed.2d 269 (1971); United States v. Tantash, 409 F.2d 227 (9th Cir. 1969), cert. denied, 395 U.S. 968, 89 S.Ct. 2115, 23 L.Ed.2d 754 (1969); George v. United States, 196 F.2d 445 (9th Cir. 1952), cert. denied, 344 U.S. 843, 73 S.Ct. 58, 97 L.Ed. 656 (1952); Deppe v. Board of Jury Supervisors of St. Louis County, Mo., 351 F.Supp. 965 (E.D.Mo.1972); United States v. Belgrave, 351 F.Supp. 686 (E.D.Pa.1972); United States v. Deardorff, 343 F.Supp. 1033 (S.D.N.Y.1971); United States v. Waddy, 340 F.Supp. 509 (S.D.N.Y.1971); United States v. Guzman, supra; United States v. Gargan, 314 F.Supp. 414 (W.D.Wis.1970) aff'd sub nom. United States v. Gast, 457...