Junior v. State

• Decision Date: 14 December 1971
• Docket Number: 6 Div. 10
• Citation: 47 Ala.App. 518,257 So.2d 844
• Parties: Jerry Lee JUNIOR v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 844

257 So.2d 844

47 Ala.App. 518

Jerry Lee JUNIOR v. STATE.

6 Div. 10.

Court of Criminal Appeals of Alabama.

Dec. 14, 1971.

Rehearing Denied Jan. 11, 1972.

George E. Trawick, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and W. Mark Anderson, III, Special Asst. Atty. Gen., for the State.

ALMON, Judge.

On May 6, 1965, a Jefferson County Grand Jury indicted appellant for the offense of burglary in the first degree. After a mistrial appellant was on January 30, 1968, found guilty by a jury of the offense charged in the indictment and his punishment was fixed at ten years in the penitentiary. Apparently the delay between the indictment and trial, resulting in a conviction, was occasioned by numerous motions and the aforementioned mistrial.

State's witness Brenda Cardwell testified that on March 26, 1965, she lived in an apartment on Third Avenue, South, in Birmingham with two roommates, Nancy Kerr and Sandra Watson. This downstairs apartment consisted of two bedrooms, a living room, dining room, kitchen and bath. According to Miss Cardwell she, along with her two roommates and a friend, arrived at her apartment at 5:30 P.M. on the above mentioned date. The friend who was visiting them for the weekend and Nancy Kerr left the apartment, leaving only Miss Cardwell and Miss Watson.

Between 8:30 and 9:00 P.M. that evening Miss Cardwell retired to her bedroom and went to sleep. She was awakened by sharp pains in her chest and upon opening her eyes saw a Negro man over her stabbing her with an ice pick. She screamed and her roommate, Miss Watson, ran into the bedroom where she was and turned on the overhead light. Miss Cardwell testified that when the light came on she observed the face of her assailant. When she first awakened the overhead light was not on but there was light in her room emanating from other portions of the apartment. The man put his hands over his face and when Miss Watson saw him he ran one way and she, another. The assailant fled through the hall to the other bedroom and apparently out the window. Both girls later identified the appellant at a police lineup as the man in the bedroom that night.

Miss Watson testified that she was in the kitchen when this incident occurred and upon hearing her roommate scream ran to the bedroom and turned on the overhead light, where she saw the appellant on all fours on Miss Cardwell's bed. She then ran outside to scream for help and upon returning to the bedroom and finding the appellant gone called the police. She further testified that while calling the police she heard sounds of curtains coming together and a window being closed. The windows were described as having sliding metal frames. From outside the bedroom window opposite the one in which Miss Cardwell was, she heard a male voice calling her an obscene name.

The testimony of Miss Cardwell and Miss Watson was to the effect that both bedroom windows and the front door were closed when Miss Cardwell retired. The apartment did not have a back door entrance.

Detective Albert Wallace testified that on the night of the crime he went to the back of the apartment and noticed that the window screen 'was removed and bent, and sitting down beside the back of the building . . . to one side of the window.'

Briefly summarized, the issues argued in brief are as follows:

(1) Systematic exclusion of Negroes from both grand and petit juries.

(2) Exclusion of females from jury service.

(3) Exclusion of citizens from the Bessemer Division from serving on juries in the Jefferson Division.

(4) That the provisions of the law pertaining to juries and the jury board of Jefferson County found in Tit. 62, §§ 196--228; Appendix §§ 713--726, Code of Alabama, 1940, recompiled 1958, are not in conformity with the general law of the State found in Tit. 30, §§ 1--100, Code, supra, and consequently were a denial of equal protection of the laws to appellant. More specifically, the objections go to the composition of capital juries.

(5) The State failed to adequately prove a breaking and entering of the apartment as a necessary element of the crime of burglary.

(6) The improper influence of Detective Wallace, a witness for the State who was summoned as a juror, in having discussions with members of the jury venire.

(7) That the pre-trial confrontation between appellant and witnesses Brenda Cardwell and Sandra Watson for the purpose of identification without the presence of an attorney was improper.

I.

The evidence at the several pre-trial hearings on appellant's motions to quash the jury venire because of systematic exclusion of Negroes was as follows:

Julian Swift, Clerk of the Circuit Court of Jefferson County, testified that court records do not show the race or color of the grand jury or petit juries. He testified that the jury board maintains a master roll of qualified jurors, and they appoint deputies to operate that office. Then the presiding judge draws or selects the grand jury for service in the county. This judge draws from the jury box about 280 names; the jury board fills the jury box every two years; and it contains a minimum of 1% Of the total population.

Swift said that out of 135 or more jurors in the jury room on Mondays there might be from 4 to 15 Negroes but he stated that he has seen as many as 6 serving on a jury of 12. He said that especially within the last twelve months it is not unusual to see Negroes serving on juries. Swift also said that in the past twelve months there have not been many grand juries which did not have Negroes on them.

W. R. Whitley, Clerk of the Jury Board, testified that in August of 1965 the board placed 48,176 names in the jury box for the Birmingham Division. He said most of these names came from making a house to house survey of the county. This work is done by five field agents, none of whom are Negroes. However, Whitley testified that the jury board got the names for field representatives from the civil service register and no Negroes had ever applied under the civil service regulations. The field agents use their own discretion and are told to get all the names they can. They are instructed to cover the entire county and have two years to get the names. He further testified that people with exemptions are omitted, unless they request being placed on the list.

J. F. Cheatwood, Clerk of the Jury Board in August, 1963, testified that the field agents covered all county precincts and that 90% Of the work was done by a house to house survey. He said that the agents would leave postcards for the residents to fill out if they were not at home. In white areas of the city they would get back about 50 to 60% Of these cards but in Negro areas they would get back only 10 to 15% Cheatwood testified that he covered the Negro neighborhoods personally. He testified that it was hard to get the residents to come to the door in predominantly Negro neighborhoods. He said he never failed to put a name in the jury box because the person was black. Cheatwood further testified that out of 48,000 names taken in a two year period, the courts would draw out about 200 per week, which would be about 14,000 in a two year period. He said the remaining names were not used over, that the records were destroyed, and the agents started over with a new list for the next two year interval. He said out of the approximate 200 jurors called per week, only 90 to 100 actually served after strikes, excuses, etc. He testified that the agents bypassed white and colored slum areas. The witness also stated that when the jury board came to the office, it was merely to oversee the clerical functions, to see that the office was functioning smoothly, and to make suggestions. He also stated that the jury board made spot checks of the final compilations.

Hon. Arthur Shores, Birmingham attorney, testified for appellant saying that he had never seen a Negro on a jury in which a Negro was charged with assaulting a white woman. He also said it was rare that he had ever seen a Negro serving on a petit jury in Jefferson County. Shores further testified that out of 125 people in the juryroom on Mondays, he would see only about 12 Negroes.

Hon. D. C. Newton, an attorney in the Birmingham area, also testified that he had seen only about 4 Negroes on juries in his ten years of practice in Birmingham.

It was stipulated (1) the jury venire empanelled to serve for the week of this trial had 6 Negroes in a venire of 110 persons; (2) all witnesses who testified to their observations of the ratio of white persons to Negro persons called for jury duty would testify that the same ratio prevails at this time; (3) all qualified jurors were not placed on the jury list; (4) all witnesses who testified on motion to quash the indictment would say the same thing on the motion to quash the venire (these two motions alleged basically the same points); (6) citizens from the Bessemer Division were excluded from the jury box and roll from which this venire was drawn; and (7) the jury board left out the names of people who have an exemption unless they asked to be put in the box.

Appellant cites no cases in brief to support his claim of systematic exclusion of Negroes from the jury venire.

It is now well settled that the aim and purpose of the law is to obtain juries which truly represent a cross-section of the community. But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him, nor on the venire or jury roll from which grand and petit juries are drawn. Swain v. Alabama,380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.

The appellant's contention in this case must be grounded upon proof that Negroes have been the victims of improper discrimination and exclusion from jury service in the jury selection process. But purposeful discrimination must be proven and may not be assumed or merely asserted, and the quantum of proof necessary to...