Rogers v. State

• Decision Date: 25 November 1981
• Docket Number: No. 1-681A193,1-681A193
• Citation: 428 N.E.2d 70
• Parties: Kenneth ROGERS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 70

428 N.E.2d 70

Kenneth ROGERS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1-681A193.

Court of Appeals of Indiana, First District.

Nov. 25, 1981.

Lawrence J. Brodeur, Monroe County Deputy Public Defender, Bloomington, for appellant.

Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Kenneth Rogers (Rogers) was tried by a Monroe County jury and convicted of rape. On appeal, Rogers contends that the jury selection process was improper, that the trial court erred in allowing an in-court identification of Rogers, and that the trial court should not have allowed an extrajudicial statement made by Rogers into evidence.

We affirm.

The facts in this case disclose that Rogers met the victim through James Ricks (Ricks), her neighbor, on April 15, 1980. Rogers attempted to buy drugs from the victim. On April 16, 1980, Rogers returned to the victim's house trailer at around 5:30 P.M. looking for Ricks. Rogers left and later returned at approximately 8:30 P.M., again, looking for Ricks. Rogers asked if he could wait for Ricks inside the victim's trailer. She and Rogers were inside the trailer for about one hour, when Rogers got up to use the telephone. Rogers then grabbed the victim, stuffed a blanket in her mouth, and took off her clothes. Rogers subsequently forced the victim to the floor and forcibly engaged in sexual intercourse with her. Rogers then attempted to pull her into the bedroom and a struggle ensued. The victim screamed for help. Shortly thereafter, two neighbors came to the victim's trailer. Rogers then fled the trailer, pushing his way past the two neighbors.

Rogers argues that the jury selection process was contrary to the procedure set forth in Ind.Code § 33-4-5-2. This section, in relevant part, provides:

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 names 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. They shall deliver the box, locked, to the clerk of the circuit court, after having deposited therein the names of herein directed. The key shall be retained by one (1) of the commissioners, not an adherent of the same political party as is the clerk.

The jury venire did not comply with the exact procedure as provided in IC 33-4-5-2. However, the method resulted in a fair and impartial jury selection. The jury venire was drawn from the voters' registration list, which was sorted according to precincts and arranged in alphabetical order into a computer. The jury commissioners then drew a number between one and ten from a hat. This number was the key number for the computer list. The computer made the juror list, starting with the key number and choosing every tenth person thereafter. The list was divided into four quarters for the year. The list was then inspected to determine whether anyone was deceased or had moved. Prior to ruling on Rogers's motion to strike the jury venire, the trial court sought to discover whether the computer selected every tenth name throughout the entire master list, whether the computer was programed to select names randomly and whether twice as many persons were selected for the quarterly lists than were required to serve as jurors. There was no evidence of record to establish that any of the above questions were not answered affirmatively, such that there is no allegation that the venire was not randomly selected.

The essence of Rogers's argument is that the State has failed to comply with the statutory procedure by utilizing a computer to select the jury venire rather than the jury box method as outlined in IC 33-4-5-2. Where there is substantial compliance with the jury procedure, the defendant must demonstrate a showing of prejudice, however, where there is lack of substantial compliance, the defendant need not show actual prejudice. Cross v. State, (1979) Ind., 397 N.E.2d 265. Rogers argues the State cannot demonstrate substantial compliance and therefore, he is entitled to a new trial.

It has been consistently held that the jury selection systems are required to draw prospective jurors from a fair cross- section of the community. Daniels v. State, (1980) Ind., 408 N.E.2d 1244. The statutory jury selection methods are designed with the purpose of removing the suspicion of favoritism or advantage in the selection of a jury. Owen v. State, (1979) Ind., 396 N.E.2d 376. In State ex...