Obregon v. United States

• Decision Date: 06 November 1980
• Docket Number: No. 79-369.,79-369.
• Citation: 423 A.2d 200
• Parties: Guillermo H. OBREGON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

423 A.2d 200

Guillermo H. OBREGON, Appellant, v. UNITED STATES, Appellee.

No. 79-369.

District of Columbia Court of Appeals.

Argued April 24, 1980.

Decided November 6, 1980.

COPYRIGHT MATERIAL OMITTED

Russell F. Canan, Washington, D. C., appointed by the court, for appellant.

Elliot R. Warren, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell and Martin J. Linsky, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY and HARRIS, Associate Judges, and HARRIETT R. TAYLOR, Associate Judge, Superior Court of the District of Columbia.^*

KELLY, Associate Judge:

Appellant appeals from his convictions of first-degree murder, D.C.Code 1973, § 22-2401, and carrying a pistol without a license, D.C.Code 1973, § 22-3202, arguing that the trial judge erred in (1) denying his motion to dismiss the indictment; (2) allowing the government to present certain rebuttal testimony; and (3) denying his motion for a mistrial. We find no error and affirm.

Appellant was arraigned in Superior Court on August 4, 1978 for the May 10, 1978 murder of Bobby Williams. Before trial, appellant filed a motion to dismiss his indictment, claiming that the grand and petit jury selection processes for the District of Columbia courts violated the equal protection component of the Fifth Amendment,¹ the Sixth Amendment right to trial by a jury drawn from a fair cross section of the community, and the Federal Jury Selection and Service Act, 28 U.S.C. §§ 1861 to 1875 (1976 & Supp. 1978).² At the hearing on the motion, appellant presented statistics showing that, although Spanish-surnamed persons constituted 2% of the population of the District of Columbia,³ they comprised an average of only .11% of grand jury venires and .46% of petit jury panels over the period of 1973 to 1978. He also offered computations to show that the probability that the underrepresentation happened by chance was, at best, minimal.⁴

In opposition to the motion, the government called the chairman of the District of Columbia Jury Commission to explain the jury selection process. The primary repository of names for potential jury service, the source list, contains 476,600 names derived from the District of Columbia voter registration and motor vehicle registration lists.⁵ From this pool, a master list, generally containing 50,000 names, is compiled by a computer that arranges the list alphabetically and selects names by use of a constant quotient number.⁶ From the master list, a working list of 10,000 names is compiled in the same manner. Questionnaires are then sent to the 10,000 names on the list and returned to the Jury Commission office.⁷ At this point, the Commissioners remove those questionnaires indicating that the person is disqualified by statute⁸ or exempt from service,⁹ and the remaining names are returned to the computer. From this qualified jury wheel, names are again randomly selected to receive summonses in response to estimated juror requirements provided by the courts.

After the testimony and arguments by counsel, the trial judge denied appellant's motion, ruling that, under the applicable case law, he had failed to present a prima facie case of a Fifth Amendment, Sixth Amendment, or statutory violation.¹⁰

At trial on the merits, the evidence showed that, on May 10, 1978, appellant got into a fight with the victim, Bobby Williams, at their place of employment, an underground construction site near the 5600 block of East Capitol Street, S.E. A coworker broke up the scuffle. Appellant then went to the crew's paymaster, stating that he had to shoot Williams¹¹ and asking if the company would get in trouble if he did.

Appellant returned to the construction shaft, where Williams and several others were standing, and was stopped by the foreman, Thomas Bradshaw. While Bradshaw was trying to calm appellant, appellant suddenly drew a pistol from his pocket, pushed Bradshaw aside, and fired numerous shots at Williams.

The government presented six witnesses to the shooting, several witnesses to the events leading up to the shooting, the testimony of the arresting officer who recovered appellant's gun from the shaft, the testimony of a firearms examiner who connected the slugs in Williams' body to appellant's gun, and the testimony of a medical examiner who established that Williams died from multiple gunshot wounds.

Appellant argued that he shot Williams in self-defense and that he acted without the premeditation necessary to substantiate the charge of first-degree murder. In support of his defense, be presented the testimony of his supervisor that Williams had repeatedly harassed appellant and had threatened to stab him on at least one occasion. Testifying in his own behalf, appellant admitted that he was angry with Williams on the day of the shooting, but stated that he only shot him because he thought Williams had a knife.

The jury found appellant guilty as charged and he was sentenced to imprisonment for a term of twenty years to life for the murder count and three to twelve months for the pistol charge.

I

Relying heavily on Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), appellant argues that the grand and petit jury selection process in the District of Columbia courts violates his Sixth Amendment right to be tried by a jury chosen from a pool that represents a fair cross section of the community, the equal protection component of the Fifth Amendment, and the Federal Jury Selection and Service Act of 1968, supra. We discuss each of the allegations.

A. The Fair Cross Section Requirement

Fundamental to the Sixth Amendment right to trial by an impartial jury is the right to have both grand¹² and petit juries chosen from sources representing a fair cross section of the community.¹³ Duren v. Missouri, supra at 358-59, 99 S.Ct. at 665-666; Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975). In Duren, the Supreme Court fashioned a three-part test for establishing a prima facie case of a fair cross section violation.

[T]he 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.]

Once the challenger has made out a prima facie case, the burden shifts to the government to show that "attainment of a fair cross section [is] incompatible with a significant state interest." Id. at 368, 99 S.Ct. at 670.

Without deciding whether appellant met the first two prongs of the Duren test,¹⁴ we agree with the trial judge that he failed to show that the underrepresentation was due to systematic exclusion of the group.

Citing to Duren, appellant argues that, by merely showing that a high comparative disparity existed over a long period of time and that the underrepresentation probably did not happen by chance, he proved that the exclusion was systematic.¹⁵ We do not read Duren, so broadly as to hold that a statistical showing alone, without some analysis of the particular system involved, is sufficient to prove systematic exclusion. The Court went on to point out that, not only had the petitioner there shown a statistical underrepresentation, but he had also shown exactly when in the selection process and why the exclusion occurred. Id. at 366-67, 99 S.Ct. at 669-670.

Moreover, appellant's case is significantly factually distinguishable from those presented in Duren and Taylor v. Louisiana, supra, another case appellant heavily relies upon. In Duren, women constituted 54% of the total adult population of the county, yet, because of Missouri's automatic exemption for any woman who chose not to serve, they represented only 14.5% of the final venires. In Taylor, 53% of all persons eligible for jury service were women, but, due to Louisiana's provision that no woman could serve on a jury unless she filed a written declaration of her willingness to do so, they constituted less than 1% of the persons chosen from, the jury wheel for service. The discrepancies at issue here are not as great as those in Duren and Taylor.¹⁶ Nor does our system have any exemptions, automatic or otherwise, that would necessarily single out Spanish-surnamed persons as to exclude a large segment of the population from jury service, as occurred in those cases.

We find that appellant did not present sufficient evidence to show that the underrepresentation of Spanish-surnamed persons was systematic. Consequently, the trial judge was correct in ruling that he had not made out a prima facie case.

B. The Equal Protection Challenge

It has long been established that the equal protection component of the Fifth Amendment protects against the discriminatory exclusion or substantial underrepresentation of persons from grand and petit juries based on race, sex, national origin, and the like. See, e. g., Castaneda v. Partida, supra; Alexander v. Louisiana, supra; Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532 24 L.Ed.2d 567 (1970); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). In Castaneda, the Supreme Court set forth the test for showing substantial underrepresentation that violates the Fifth Amendment: the defendant must show that (1) the underrepresented group is an identifiable, distinct class; (2) the group has been substantially underrepresented on juries in relation to its representation in the population; and (3) the jury system at question is susceptible of abuse or not racially neutral. 430 U.S. at 494, 97 S.Ct. at 1280. Although the...