Moore v. State

• Citation: 427 N.E.2d 1135
• Decision Date: 17 November 1981
• Docket Number: No. 3-680A178,3-680A178
• Parties: Ralph D. MOORE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 1135

427 N.E.2d 1135

Ralph D. MOORE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-680A178.

Court of Appeals of Indiana, Third District.

Nov. 17, 1981.

John F. Hoehner, Valparaiso, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

Appellant, Ralph Moore, was tried by jury and convicted of burglary.

His first challenge attacks the petit jury selection process in Porter County.

The statute covering jury selection provides in pertinent part:

"Said commissioners shall immediately, from the names of legal voters and citizens of the United States on the latest tax duplicate and the tax schedules of the county, examine for the purpose of determining the sex, age and identity of prospective jurors, and proceed to select and deposit, in a box furnished by the clerk for that purpose, the names, written on separate slips of paper of uniform shape, size and color, of twice as many persons as will be required by law for grand and petit jurors in the courts of the county, for all the terms of such courts, to commence with the calendar year next ensuing. Each selection shall be made as nearly as possible in proportion to the population of each county commissioner's district. In making such selections, they shall in all things observe their oath, and they shall not select the name of any person who is not a voter of the county, or who is not either a freeholder or householder, or who is to them known to be interested in or has cause pending which may be tried by a jury to be drawn from the names so selected."

IC 33-4-5-2.

Moore established that the names of prospective petit jurors in Porter County are selected strictly from the real property tax assessment rolls. Exhibits and testimony introduced and not factually disputed by the state disclosed that while persons in the 18 to 24 year old age bracket constituted approximately 21.5% of the adult population of Porter County between 1974 and 1980, only about 2% of the persons listed on jury panels during those years appeared from that age group. ¹ From this information Moore asserts that the jury selection process was constitutionally defective in that it excluded a distinctive class of persons, those aged 18 to 24, from jury selection.

At the outset we note that the constitutional purpose is to provide litigants with a fair and impartial jury. In support of that purpose we have long observed that the jury selection process should be such as to reflect a reasonable cross section of the community from which the jury is drawn. At the same time we have consistently refused to adopt a requirement that jury panels actually drawn constitute a microcosm of a county or court district. See, e. g., Taylor v. Louisiana (1975), 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690.

In furtherance of the underlying goal our Supreme Court in State ex rel. Brune v. Vanderburgh Cir. Ct. (1971), 255 Ind. 505, 265 N.E.2d 524 noted the impact upon jury selection occasioned by the legislature's repeal of the general personal property tax and approved the use of voter registration lists as ordered by the circuit court. In keeping with the views expressed in that opinion we expressly disapprove of the continued practice in Porter County of selecting veniremen solely from real property tax rolls.

That is not to say, however, that appellant Moore's jury was illegally constituted so as to require that he be given a new trial. To support such a contention the great majority of decisions have looked to the equal protection clause and have required a showing of a systematic and intentional exclusion of a particular class of persons. See, e. g., Burr v. State (1980), Ind., 403 N.E.2d 343.

Under the rationale of those decisions Moore's argument must concededly fail since there has been no showing of any purposeful exclusion. Daniels v. State (1980), Ind., 408 N.E.2d 1244.

He argues, however, that such a showing is unnecessary to his rights under the sixth amendment to have a jury reflecting a representative cross section of the community. In support he cites the decisions in Duren v. Missouri (1979), 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 and Taylor v. Louisiana (1975), 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690.

In those cases the Court recognized a violation of sixth amendment rights in state jury selection systems that worked to the exclusion of females from jury duty.

As the Duren majority stated:

"In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process."

439 U.S. at 364, 99 S.Ct. at 668.

Of great significance is the Court's conclusion that systematic exclusion is prima facie established simply by proof that it is inherent in the particular jury-selection process utilized. 439 U.S. at 367, 99 S.Ct. at 670.

Under Duren once the defendant has made a prima facie showing that he has been denied his right to have a jury drawn from a fair cross section of the community, the state may still justify the selection process by showing that attainment of a fair cross section is incompatible with a significant state interest. The burden, however, is upon the state to demonstrate this. 439 U.S. at 369, 99 S.Ct. at 671.

In view of the broad majority language as highlighted by Mr. Justice Rehnquist's dissents, it would be simplistic to deem these decisions applicable only to exclusions based on sex or the traditionally suspect categories. Nevertheless, in view of the Court's continued and practical rejection of a requirement that juries mirror the community from which they are drawn (Taylor, supra, 419 U.S. at 539, 95 S.Ct. at 702), the parameters of the right remain indistinct.

The problem depends upon what may be said to constitute a "distinctive" group. In reviewing the cases from other jurisdictions we note the following from the California Supreme Court's decision in Adams v. Superior Ct. of San Diego Co. (1974), 12 Cal.3d 55, 115 Cal.Rptr. 247, 524 P.2d 375, 379:

"... (B)efore exclusion may be held improper, there must be a common thread running through the excluded group a basic similarity of attitudes, ideas or experience among its members so that the exclusion prevents juries from reflecting a cross-section of the community."

We find this helpful as a definition and adopt it as characterizing the burden imposed upon a defendant seeking to establish the prima facie showing required by Duren and Taylor.

In the instant appeal the burden has clearly not been met since there has been no showing whatever that the alleged group of 18 to 24 year olds possesses the common thread necessary so that their relative exclusion prevented the jury from the opportunity to represent a reasonable cross section of the community.

Moore next challenges the selection process by asserting that it did not comply with the statutory requirement that selections be proportioned to the population of each commissioner's district. IC 33-4-5-2. The basis for the contention is that the jury commissioners used voter registration figures by district rather than census figures to establish the proportions. We find this was a substantial compliance with the requirements of the statute. Harrison v. State (1952), 231...