Huff v. State

• Decision Date: 15 March 1991
• Citation: 596 So.2d 16
• Court: Alabama Court of Criminal Appeals
• Parties: Darren HUFF v. STATE. CR 89-338.

Page 16

596 So.2d 16

Darren HUFF v. STATE.

CR 89-338.

Court of Criminal Appeals of Alabama.

March 15, 1991.

Rehearing Denied Sept. 20, 1991.

Certiorari Quashed March 27, 1992

Alabama Supreme Court 1910020.

James B. McNeill, Jr., Selma, for appellant.

Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was indicted for the offense of capital murder and was subsequently convicted of the lesser included offense of intentional murder. Following a pre-sentencing investigation, the appellant was sentenced to life imprisonment.

I

The appellant argues that the trial court erred in denying his motion challenging the grand and petit juries on the ground that the method of jury selection in Dallas County substantially failed to comply with the laws and Constitution of Alabama and the Constitution of the United States. Specifically, the appellant contended that the method of jury selection used in Dallas County failed to ensure that juries represented a fair cross-section of the community and that all citizens had the opportunity to be considered for jury service. He further alleged that the method of jury selection in the county systematically excluded citizens on account of race, sex, economic status, age, income, occupation, and education. The appellant's motion, contained in the record, indicates that he requested a hearing as to this matter; however, the order reflects his motion was denied and that no hearing was held. The appellant stated that his purpose in making the motion was to preserve

"all right to challenge the jury selection procedure and the resulting composition of both the grand and petit juries in light of the fact that counsel for the defendant has not had time or funds to analyze the records necessary to determine the feasibility of such challenge. Only a thorough examination of the jury selection process will show whether and to what extent substantial violations of the law and constitutions have occurred."

On appeal, the State submits that the appellant did not meet his burden of proof in raising this issue. The appellant argues that he met his burden because he raised the issue, and because, eight months after his trial, the trial court held in an unrelated case that the method for selecting grand and petit juries in Dallas County violated § 12-16-60, Code of Alabama 1975. The appellant attached the order in this case to his brief. However, attachments to briefs are not considered part of the record and therefore cannot be considered on appeal. Acres v. State, 548 So.2d 459 (Ala.Cr.App.1987).

The State argues that the appellant failed to establish a prima facie case of the violation of the constitutional requirement that both grand and petit juries be drawn from a panel of prospective jurors that represents a fair cross-section of the community. Rutledge v. State, 482 So.2d 1250, 1253-54 (Ala.Cr.App.1983), reversed on other grounds, 482 So.2d 1262 (Ala.1984). See also Sanders v. State, 426 So.2d 497, 502-03 (Ala.Cr.App.1982).

" 'The discriminatory application of racially neutral statutes can be attacked in three ways. The first entails a demonstration of discriminatory outcome of the selection procedure. Pursuant to this method the challenger has the burden of establishing a prima facie case by producing evidence which proves that there is a substantial disparity over time between the percentage of the cognizable community group on the jury roll or venire and that group's percentage in the relevant population. Once a prima facie case has been proven, the burden shifts to the State to justify the discrepancy. The second method involves a showing that discriminatory selection procedures have been indulged in by the selectors. Thus, evidence proving that the selectors have failed to take affirmative steps to comply with the two-fold constitutional duty imposed upon them and described above will allow the challenger to succeed. The actual outcome of the selection process is wholly inconsequential to the success or failure of this method. The third and final requires the demonstration of a combination of factors indicative of discrimination and may involve proof called for by the first and second methods in addition to other evidence.'

"Sperlich & Jaspovice, Grand Juries Grand, Jurors and the Constitution, 1 Hastings Const.L.Q. 63, 80-81 (1974).

"See also: Kuhn, [Jury Discrimination; The Next Phase, 41 S.Calif.L.Rev. 235 (1967) ]; Comment, The Civil Petitioner's Right to Representative Grand Juries and Statistical Method of Showing Discrimination in Jury Selection Cases Generally, 20 U.C.L.A. Law Rev. 581 (1973); Comment Jury Discrimination in the South: A Remedy? A Colum.J.L. & Soc.Prob. 589 (1972); Discriminatory Jury Selection, 9 Am.Jur. Proof of Facts 2d 407 (1976).

"Though the discrimination must be 'purposeful' or 'systematic,' proof of specific acts of discrimination or actual discriminatory intent on the part of the jury commissioners is not required. Purposeful discrimination may be inferred or presumed to have arisen from the fact of a continued lack of representation or from underrepresentation or tokenism. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966). A statistical showing of significant numerical disparity in representation will give rise to a finding of purposefulness. Avery, supra; Patton, supra; State ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970); Inter-Ocean Casualty Co. v. Banks, 32 Ala.App. 225, 23 So.2d 874 (1945)."

Smith v. State, 364 So.2d 1, 7-8 (Ala.Cr.App.1978).

"Neither the jury roll nor the venire need be a perfect mirror of the community nor accurately reflect the proportionate strength of every identifiable group." Carter v. State, 53 Ala.App. 43, 297 So.2d 175, 180 (Ala.Cr.App.1974). "The law in Alabama does not require, literally, that every qualified person's name be placed on the rolls or in the box. Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966). Failure to include the names of every qualified person on the jury role is not a ground to quash an indictment or venire, absent fraud or purposeful discrimination." Lopez v. State, 415 So.2d 1204, 1209 (Ala.Cr.App.1982).

In the present case, while it is true that the appellant did not prove a case of purposeful discrimination, he requested that he be granted access to certain lists and that he be granted the opportunity to present sufficient evidence to meet his burden of proof; however, the trial court denied the appellant's request. In Nixon v. State, 51 Ala.App. 439, 286 So.2d 314 (Ala.Cr.App.1973), this Court held that, where a defendant filed a motion containing 20 grounds attacking the validity or legality of the jury venire, one of which alleged that the venire did not represent a cross-section of the county's citizens, the defendant had a lawful right to be heard on his motion to quash "and to submit evidence if available in support of the several grounds of the motion that challenged the validity and composition of the venire." This Court noted that the motion did not seek specific relief, but further noted that subsequently, after that case, the Alabama Supreme Court rendered a decision that the system employed by that county in selecting jurors did not meet the mandates of law. The Alabama Supreme Court reversed this Court's decision in Nixon v. State, 291 Ala. 657, 286 So.2d 315 (1973). The Court held:

"We think the Court of Criminal Appeals erred in reversing the trial court for at least these: (1) The defendant did not ask for any relief or an opportunity to be heard; (2) the order of the trial court denying the motion states that the motions 'came on to be heard'; and (3) the presumption is in favor of the regularity of the proceedings surrounding the selection of the jury venire, in the absence of proof to the contrary, or an offer of such proof.

"The Court of Criminal Appeals admits that the defendant made no prayer for any specific relief in his motion to quash.

"The motion to quash does not contain a request to be heard and present evidence. While the record does not show that a hearing was held, the record does not show that a hearing was not held. In fact, the order of the trial court denying the motion to quash states as follows:

" 'This cause coming on to be heard on a Motion by the Defendant to quash the jury venire and continuance and hearing on same, submitted to me on the 22nd day of October, 1970, and the Court having considered same, is of the opinion that the Motion is not well taken.' "

291 Ala. at 658, 286 So.2d at 316.

The Alabama Supreme Court further indicated that, although the Court of Criminal Appeals noted that jury selection process of the county was subsequently held to have been unconstitutional, the Alabama Supreme Court stated that, "[t]here is a presumption that no legal fraud exists in the system used for the selection of jurors, in the absence of proof to the contrary, or an offer of such proof." 291 Ala. at 659, 286 So.2d at 317. The Court held: "[I]t is apparent that the defendant did not present any proof or offer to present proof of the allegations made in his motion to quash." Id. Although the appellant, in the instant case, did request a hearing, he made no specific allegations concerning an offer of proof. The appellant's motion contains only bare allegations and rules of law. Cf. LaFave and Israel, Criminal Procedure § 21.2(a) (1984) (which states, concerning federal jury selection procedures, that "[i]f the motion contains a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of the Act, the movant is entitled to submit...