Reed v. Wainwright

• Decision Date: 08 January 1979
• Docket Number: No. 78-1413,78-1413
• Citation: 587 F.2d 260
• Parties: Willie James REED, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 260

587 F.2d 260

Willie James REED, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent-Appellee.

No. 78-1413.

United States Court of Appeals Fifth Circuit.

Jan. 8, 1979.

Bennett H. Brummer, Public Defender, Miami, Fla., for petitioner-appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Joel D. Rosenblatt, Paul Mendelson, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before THORNBERRY, GODBOLD and HILL, Circuit Judges.

PER CURIAM:

We affirm the judgment appealed here on the basis of the District Court's Order of Dismissal which we adopt and attach as an Appendix.

AFFIRMED.

APPENDIX

ORDER OF DISMISSAL

JOE EATON, District Judge.

Willie James Reed has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 attacking a life sentence imposed by the Circuit Court for the Eleventh Judicial Circuit in and for Dade County, Florida on May 23, 1972. Such sentence was imposed following a jury verdict of guilty to the crime of robbery.

Petitioner is presently in the custody of the respondent, Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, State of Florida.

Petitioner presents the following issues for this Court's consideration:

I. WHETHER A STATE MAY SYSTEMATICALLY EXCLUDE FROM SERVICE UPON CRIMINAL JURIES CITIZENS WHO ARE OTHERWISE

QUALIFIED, ON THE BASIS THAT THEY HAVE NOT RESIDED IN THE STATE FOR ONE YEAR AND THEIR RESPECTIVE COUNTIES FOR SIX MONTHS, OR THEY ARE NOT FULLY QUALIFIED ELECTORS, BECAUSE THEY HAVE NOT REGISTERED TO VOTE OR HAVE BEEN PURGED FROM THE VOTER ROLLS IN ACCORDANCE WITH STATE STATUTE BECAUSE THEY HAVE NOT VOTED FOR A PERIOD OF TWO YEARS.

II. WHETHER STATE JURY OFFICIALS MAY CONSISTENT WITH DUE PROCESS OF LAW, MAINTAIN AND EMPLOY A JURY SELECTION SYSTEM BASED UPON ECONOMIC AND SOCIAL CLASSIFICATIONS SUCH AS OCCUPATION AND AGE, AND INCLUDE ON CARDS FROM WHICH PROSPECTIVE JURORS ARE CHOSEN DESIGNATIONS INDICATING RACE, POLITICAL AFFILIATION, PROPERTY OWNERSHIP, SEX, AGE, AND OCCUPATION.

Petitioner prior to trial filed a motion to dismiss the information or in the alternative to exclude the entire jury panel. This motion challenged the Dade County's jury selection system on the grounds that it excluded those otherwise qualified who were 18-20 ¹ years old, that the categorization of prospective jurors into five groupings were illegal and improper, that the residency requirement was discriminatory, that the purging of those qualified to vote but who have not voted for a period of two (2) years was improper, and that the method used to select jurors limiting that selection to qualified voters was violative of the petitioner's Sixth and Fourteenth Amendment right to trial by an impartial and fair jury of peers.

The trial court denied the motion subject to the stipulation that certain testimony from a prior challenge similar to this one become part of the record. A jury trial resulted in a verdict of guilty.

On August 24, 1972, petitioner filed notice of appeal to the District Court of Appeal of Florida, Third District and in his assignments of error, included his challenge to the denial of the motion to dismiss the jury venire and a finding that Florida Statute 40.01 was constitutional. On December 13, 1972, petitioner filed a motion to transfer the appeal to the Supreme Court of Florida on the basis that the validity of a state statute had been passed upon by the trial court. The motion was granted and the case was transferred accordingly. On February 13, 1974, the Supreme Court of Florida in a five-two decision affirmed the judgment of the trial court and upheld the validity of Chapter 40 Fla.Stat., on its face and as applied. Reed v. State, 292 So.2d 7 (Fla.1974). Petitioner requested a rehearing before the Supreme Court of Florida which was denied on April 15, 1974. On November 11, 1974, a petition for a writ of certiorari was denied by the Supreme Court of the United States. Reed v. Florida, 419 U.S. 995, 95 S.Ct. 307, 42 L.Ed.2d 268.

Testimony stipulated to for purposes of the state court trial motion was elicited from Joseph D'Apice, jury commissioner, Ann H. Bobo and Margaret Haase, deputy clerks of the Circuit Court, and Willard Miller, supervisor of elections. Mr. D'Apice's testimony reflected that pursuant to the instruction of the presiding judge, he had selected a venire of 5,000 from a total of 525,000 possible names. It was stipulated that the jurors in attendance in petitioner's trial were selected by Mr. D'Apice. The selection was made by drawing cards from files located in the office of the clerk of the Circuit Court. Each card contained the name, address, race, sex, political affiliation and occupation of the prospective venireman as well as whether that person was a freeholder in the city or county. Mr. D'Apice testified that his sole function was to pull the cards. He drew out every fifteenth or twentieth card from alphabetical files and put them in a box face down. He then personally turned the box over to the clerk of the Circuit Court. At this point, Mr. D'Apice's function as jury commissioner ceased.

Mrs. Ann Bobo, deputy clerk of the Circuit Court's jury department, testified that once the cards were brought to the clerk's office from the voter registration office, they were placed in different cabinets according to categories. One category was for persons who were unscreened and had never served. Another category consisted of doctors, nurses, teachers, and government employees, such as policemen, firemen, customs inspectors, and immigration employees. Mrs. Bobo testified that this occupational classification was not co-mingled with any other group and other occupational groups would be found in the "general unscreened" category. She testified also that once a card from the special occupations category was drawn, it was placed in the general classification upon its return to the files. Mrs. Bobo testified that a certain percentage of those in the special occupations category was drawn, and that any teacher that was pulled also came from that draw and not the general cabinet.

Margaret Haase testified that the jury commissioner, without looking at the cards, randomly drew from exclusive groups in the selection of prospective jurors: unscreened, those 65 and over, those with special occupations including teachers, doctors, clergy, military and pilots. Exempted were those cards representing persons who have served since 1969. According to Mrs. Haase, any card received from a doctor, for example, within the last sixty days would have been placed in the special occupation drawer. A card for someone over 65 would be placed in the 65 and over drawer and nowhere else. Mrs. Haase in addition testified that more cards were selected from the unscreened than the other three groups. With regard to this systemized selection from the specialized classifications, the witness explained:

"Because the other file being so much smaller would be easily depleted in a short length of time. You wouldn't have those people if you used them all up first."

Mrs. Haase's testimony appears to conflict with that of Mrs. Bobo insofar as she stated that if a teacher, for example, had been selected for service within the last sixty (60) days, that card would not be co-mingled in the general file, but would be kept temporarily in a file with other teachers, doctors, and medical personnel who had served during the three year period of 1970, 1971 and 1972.

Willard J. Miller, supervisor of elections of Dade County in turn testified that in his official capacity he took the names of registered voters and delivered them to the official jury commissioner of Dade County. He further testified that the residency requirement of one year in the state and six months in the county was upheld and only those who had met that requirement were included on the list he sent to the Circuit Court.

We turn first to the petitioner's allegation that Florida Statute 40.01 is unconstitutional Per se. Specifically, petitioner contends that the one year state residency requirement and six month county residency requirement deny him equal protection of the law, and serve no compelling state interest nor further a rational basis in excluding otherwise qualified persons from serving as jurors in Dade County. In arguing that the state statutory scheme does not serve any compelling state interest, petitioner relies on Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); and Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Petitioner quotes from Taylor, supra, 419 U.S. at 534, 95 S.Ct. at 699-700, where it was stated that "(t)he right to a proper jury cannot be overcome on merely rational grounds." However, the full import of Taylor, in this Court's opinion, requires the application of the compelling state interest test only upon an initial demonstration that a state's jury selection system results in the exclusion of a distinctive class. In the instant case, those who do not meet Florida's residency requirement have not been shown by petitioner to constitute a particular economic, social, religious, racial, geographical or political group which is excluded from jury service as a result of such requirement.

Moreover, the courts have not recognized that the constitutional principle which struck down residency requirements in the context of voting rights, welfare benefits and public housing is applicable to an alleged denial of a defendant's right to a jury comprised of a fair cross section of the community. United States v. Ross, 468 F.2d 1213 (9th Cir. 1972), Cert. denied 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188; United States v. Duncan, ...