Phillips v. State

• Decision Date: 20 June 1978
• Docket Number: No. 577S315,577S315
• Citation: 268 Ind. 556,376 N.E.2d 1143
• Parties: James PHILLIPS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1143

376 N.E.2d 1143

268 Ind. 556

James PHILLIPS, Appellant (Defendant below), v.STATE of Indiana, Appellee (Plaintiff below).

No. 577S315.

Supreme Court of Indiana.

June 20, 1978.

Robert W. Hammerle, Indianapolis, for appellant(defendant below).

Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee(plaintiff below).

PRENTICE, Justice.

Defendant(Appellant) was charged by indictment with First Degree Murder.After trial by jury, he was found guilty of the lesser included offense of Second Degree Murder, Ind. Code § 35-1-54-1(Burns 1975), and was sentenced to be imprisoned for not less than ten, nor more than twenty-five years.This direct appeal presents the following issues:

(1) Whether the procedure used to select the jury array discriminated upon the basis of wealth.

(2) Whether calling the regular panel of jurors, in an order differing from the order in which they were originally selected by the County Clerk, prejudiced Defendant's trial rights.

(3) Whether the trial court's practice of excusing jurors from service was an abuse of discretion.

(4) Whether certain comments made to members of the jury by the court's bailiff was fundamental error.

(5) Whether it was error to direct the alternate juror to retire with the jury during deliberations.

(6) Whether the evidence was sufficient to sustain the verdict.

ISSUES I, II, III

The method of selecting the jury array which Defendant objects to has been considered by this Court on prior occasions and upheld.See: Holt v. State, (1977) Ind., 365 N.E.2d 1209;Brown v. State, (1977) Ind., 360 N.E.2d 830.The procedure employed by Judge Jacobs involved sending questionnaires to approximately one thousand individuals whose names were drawn at random by the County Clerk.The questionnaire provided space to state reasons to be excluded from jury duty, and Judge Jacobs invariably excused any prospective juror who wished to be excused.Consequently, of the one thousand individuals to whom questionnaires were sent, approximately one hundred sixty individuals were available for jury duty.These one hundred sixty individuals were divided into groups of equal number from which the petit juries were selected.No individual was required to serve more often than he wished during the term, and as a result, the members of the array called to serve on a particular petit jury were not called in the same sequence as they were drawn by the County Clerk.

It is clear that the procedure that was followed which resulted in a substantial number of members of the array being called to serve in a sequence other than that in which they were originally drawn by the County Clerk was a technical violation of Ind.Code § 33-15-22-1(Burns 1975).However, Ind.Code § 33-15-22-2(Burns 1975) provides:

"This act shall be construed liberally, to the effect that no indictment shall be quashed, and no trial, judgment, order or proceeding shall be reversed or held invalid on the ground that the terms of this act have not been followed, unless it shall appear that such noncompliance was either in bad faith or was objected to promptly upon the discovery and was probably harmful to the substantial rights of the objecting party."(Emphasis added)

The whole object of the jury selection procedure provided for in Ind.Code § 33-15-22-1 is to assure that jurors are chosen on a random basis, in order to avoid even the possibility of bias.The requirement that jurors be called to serve in the same order as they are originally picked by the County Clerk is to prevent the process of selection by random from being subverted by the placing of individuals or groups of individuals at the end of the list, where they might not be called for service.Here, it is apparent that the members of the array were out of their original order by reason of Judge Jacobs' policy of allowing members to serve according to their convenience.Defendant made no allegation, and there is no indication appearing in the record, that the selection process employed involved the intentional arrangement or rearrangement of prospective jurors in any particular order, and it does not appear that the defendant could have suffered any impairment of a substantial right.

The defendant further objected to the jury array upon the ground that Judge Jacobs' liberal policy of excusing jurors from service discriminated against wage earners, and thereby excluded low income groups from service.It is clear that the Sixth and the Fourteenth Amendments to the United States Constitution require the States to select juries from arrays which represent a fair cross section of the community.Taylor v. Louisiana, (1975)419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690;Duncan v. Louisiana, (1968)391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491.However, as it was stated in Taylor v. Louisiana, supra:

"It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.Defendants are not entitled to a jury of any particular composition, Fay v. New York, 332 U.S. 261, 284, 67 S.Ct. 1613, 91 L.Ed. 2043(1947);Apodaca v. Oregon, 406 U.S. (404) 413, 92 S.Ct. 1628, 32 L.Ed.2d 184(plurality opinion); but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof."419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690.

Neither logic nor the evidence supports Defendant's claim that low income groups were systematically excluded from jury service.Defendant's argument is that those individuals who were unable to serve without encountering a financial burden would seek to be and would be excused and that, therefore, persons from the wage-earner strata of the community would be excluded.It seems reasonable, however, that the unemployed, a low income group, would be willing to serve, since it would entail no sacrifice.Further, the evidence presented goes only to the financial status of those jurors who were available for service, and...