Rutledge v. State

• Decision Date: 16 August 1983
• Docket Number: 5 Div. 610
• Citation: 482 So.2d 1250
• Parties: Mitchell RUTLEDGE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1250

482 So.2d 1250

Mitchell RUTLEDGE v. STATE.

5 Div. 610.

Court of Criminal Appeals of Alabama.

Aug. 16, 1983.

Rehearing Denied Oct. 4, 1983.

Dennis N. Balske, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard Melson and Ed Carnes, Asst. Attys. Gen., for appellee.

HUBERT TAYLOR, Judge.

Appellant was indicted and convicted under § 13A-5-31(a)(2), Code of Alabama 1975, for robbery when the victim is intentionally killed. A hearing was held to determine punishment. After weighing the aggravating and mitigating circumstances, the jury fixed appellant's punishment at death. In a second hearing, ¹ the trial court, in accord with §§ 13A-5-32, -33, -35, -36, Code of Alabama 1975, sentenced appellant to death.

On December 23, 1980, appellant met with codefendants Rayfield Davis and Alvin Morgan. They decided to rob someone in Columbus, Georgia. Morgan borrowed a .32 caliber pistol from one Lucille Austin. The trio went to the Paradise Club, a bar in Columbus, and saw codefendant Billy Threatts. The trio told Threatts of their plan to rob someone and he decided to join them. Around 10:15 p.m., the quartet went to the Green Theater. Threatts, seeing a van parked next to the theater, had the group wait for the owner to come out so they could take his keys and steal the van.

The victim, Gable Holloway, while walking toward his van, was assaulted by Threatts and forced into the van.

While riding around, appellant searched Holloway and found marijuana in his coat. He also took $20 to $25 and a watch from Holloway.

The group smoked the marijuana as they traveled highway 280/431 toward Opelika. Before reaching Opelika, Threatts turned onto a dirt road near the community of During the trip back to Phenix City, appellant gave the gun to Davis. Around 11 p.m. on December 24, 1980, the victim's van was found in a parking garage in Columbus. The fingerprints of Threatts, Davis, and Morgan were found in the van, but not those of appellant. On January 6, 1981, after an intensive investigation, appellant was arrested. At the time of his arrest, appellant was on parole for three second degree burglary convictions.

                Salem.  After driving about a mile down the road, Threatts stopped the van and everyone, including Holloway, got out.  Appellant asked Threatts what they were going to do with Holloway.  Both Threatts and Davis said that Holloway had to be killed because he knew them.  Threatts walked to appellant and "pushed the gun on [him]."  One of the group stated, "[g]o on, do something."   Throughout the ordeal, Holloway begged for his life stating, "[p]lease don't kill me.  I have a wife and kids, and a grandmother that I have to support."   Appellant, from a distance of about five or six feet, fired at Holloway.  The victim did not fall, so appellant fired two more shots at him.  The quartet began to leave when someone said, "[e]mpty the gun."   Appellant turned around and fired two more shots at the fallen Holloway.  The victim's body was found around 3 a.m. on December 24, 1980 by a resident of the Salem community.  He notified the authorities
                

Dr. Thomas Gilchrist, a pathologist, determined the victim's cause of death to have been from multiple gunshot wounds. He removed four bullets from the body of the victim and sent them to tool and firearms examiner Lonnie Hardin for analysis.

After the police had talked to Morgan, they were able to retrieve the murder weapon from Lucille Austin. It was sent to Lonnie Hardin for ballistics tests. Hardin determined that the bullets removed from the victim had been fired from the gun.

I

Appellant, through his motion to quash the indictment, challenged the composition of the grand jury which indicted him, and the petit jury which convicted him. The thrust of his contention is that the methods of selecting prospective jurors for the master jury list and master jury book, ² compiled by the Lee County Jury Commission, systematically excluded "young persons." Appellant identified "young persons" as nineteen to twenty-four year old Auburn University students who were residents of Alabama.

Appellant hired an expert in the field of public opinion research to conduct a study to determine the number of currently enrolled Auburn University students who would qualify as prospective jurors, the number of students included on the prospective jurors list, and to compare social attitudes between the students and non-student residents of Lee County. During the course of the trial, it became clear that the study conducted by the expert was flawed. Questions used in the surveys were ambiguous and important facts were overlooked. Two factors overlooked were: (a) that eighteen year olds were included in the study, and (b) that most Auburn students were not present during the summer and, therefore, not "residents" of Lee County. The study concluded that young Auburn students were under-represented by about twenty percent on the jury list of Lee County.

It is a constitutional requirement that both grand and petit juries be drawn from a panel of prospective jurors which represents a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Smith v. State, 364 So.2d 1 (Ala.Cr.App.1978). To establish a prima facie violation of the fair cross-section requirement, a defendant must show: (1) that the group or class of We question whether appellant's class of persons, i.e., "young persons nineteen to twenty-four years of age who are Alabama residents and Auburn University students," is a "distinctive" group under Duren and Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). There is no doubt that appellant confined his group by age and further limited it by "occupation," i.e., student. Nevertheless, the key to his class is age; otherwise, he would have included all Alabama resident Auburn University students.

persons in question is a "distinctive" group in the community; (2) that the group forms a substantial and identifiable segment of the total population of the community and representation of it 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 such underrepresentation, generally and on appellant's venire, is due to their systematic exclusion in the jury-selection process. Duren, 439 U.S. at 364, 366, 99 S.Ct. at 668, 669; United States v. Berry, 627 F.2d 193 (9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981); Smith, supra, at 10. Mere statistical disparity between the number of the group presumed eligible for jury service and the number actually included in the master jury list or box does not of itself establish a primary inference of violation of the fair cross-section requirement. Smith, supra, at 10-11.

In order for a group to have cognizability or distinctiveness, there must be some factor, quality, or attribute in existence which defines and limits it. It must have a definite composition whose membership does not shift from day to day or whose members cannot be arbitrarily selected. The group must also have a cohesiveness of attitudes, ideas, or experience which serves to distinguish it from the general milieu and which cannot be adequately represented if the group is excluded from jury service. In addition, there must be a possibility that exclusion of the group from jury service will result in partiality, bias, or prejudice on the part of the juries hearing cases in which purported group members are involved. Stated another way, the group must exhibit a community of interest which cannot be adequately protected by the remainder of the populace. United States v. Guzman, 337 F.Supp. 140 (S.D.N.Y.), aff'd, 468 F.2d 1245 (2d Cir.1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973).

Age has been held not to be a valid criterion in determining whether an "identifiable" or "distinctive" group, for purposes of a jury system reflecting a fair cross-section of the community, has been excluded. Smith, supra, at 11. The United States Supreme Court has not decided whether "young people," i.e., a group based upon age limitations, constitutes a "cognizable" or "distinctive" class. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). Numerous federal and state jurisdictions have determined that it does not. See e.g., Davis v. Greer, 675 F.2d 141 (7th Cir.1982); Brown v. Harris, 666 F.2d 782 (2d Cir.1981), cert. denied, 456 U.S. 948, 102 S.Ct. 2017, 72 L.Ed.2d 472 (1982); United States v. Potter, 552 F.2d 901 (9th Cir.1977); United States v. Blair, 493 F.Supp. 398 (D.Md.1980), aff'd, 665 F.2d 500 (4th Cir.1981); United States v. Guzman, supra; Williamson v. State, 52 Ala.App. 617, 296 So.2d 241 (1974). Furthermore, students have not been recognized as a cognizable or distinctive group. See Brown v. Harris, supra.

After a careful review of the record and the authorities cited above, we conclude that appellant has failed to establish a cognizable or distinctive class under the first requirement of Duren.

Further, the questionable statistical method used to reach the appellant's conclusion that the disparity of underrepresentation is "statistically significant" does not require an a priori finding that the Lee County jury selection system fails to comply with either statutory or constitutional requirements. See generally United States v. Test, 550 F.2d 577 (10th Cir.1976).

Consequently, we find no error in the trial court's ruling on appellant's motion to quash the indictment.

II

Appellant contends that his written confession was erroneously admitted into evidence. Appellant's argument is that his illiteracy rendered him mentally incapable of understanding and waiving his Miranda rights. Consequently, he argues that his confession was involuntarily made.

At appellant's motion to suppress, Lee County Deputy Sheriff Ronnie Watkins testified...