Scott v. State, 67--186

• Decision Date: 28 February 1968
• Docket Number: No. 67--186,67--186
• Citation: 207 So.2d 493
• Parties: Walter James SCOTT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 493

207 So.2d 493

Walter James SCOTT, Appellant, v. STATE of Florida, Appellee.

No. 67--186.

District Court of Appeal of Florida, Second District.

Feb. 28, 1968.

Raymond E. LaPorte, of Ragano & LaPorte, Tampa, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

This is an appeal by appellant Walter James Scott from a judgment of conviction entered against him for the offense of manslaughter, consequent upon a verdict of guilty by a jury upon trial of an indictment charging first degree murder.

The indictment was returned in the Hillsborough County Circuit Court on November 1, 1966, charging Scott with having murdered one Carolyn Scott with a pistol. Prior to trial, defendant Scott filed motions to quash the indictment and to quash the petit jury panel previously drawn, which motions were denied. Upon plea of not guilty, the case was tried to a jury resulting in a verdict of guilty of manslaughter. Motion for new trial was denied, and from the judgment and sentence entered, Scott appeals to this Court. He assigns as error the trial Court's ruling on the pre-trial motions aforesaid and also certain matters arising during the trial. We have reviewed the entire record and the able briefs of the parties, and upon due consideration we are of the view that no reversible error has been made to appear. We therefore affirm.

The aforesaid motions to quash were grounded upon the proposition that the juries were not drawn in accordance with the due process requirements of the Fifth and Fourteenth Amendments to the federal Constitution and the Declaration of Rights of the Florida Constitution. Specifically, it was contended that defendant was a male Negro and there was an unlawful and systematic exclusion of Negro women on the jury panel in Hillsborough County; that such exclusion of Negro women was solely because of their sex; and that the provisoin F.S. § 40.01, F.S.A. which states that 'the name of no female person shall be taken for jury service unless said person has registered with the clerk of the circuit court her desire to be placed on the jury list' violated the defendant's rights to due process of law and the equal protection of the laws as applied to 'particularly Negro women'.

Testimony on the motion was taken from the two Hillsborough County jury commissioners ¹ and the Court clerk in charge of the jury list. The testimony shows substantially the following:

--the jury list is made up each year by the jury commissioners from the names on the voters registration list in the County Election Supervisor's office;

--in the current year of trial there were 177,991 registered voters in the County, of whom 20,144 were Negro men and women;

--the Negro women outnumbered the Negro men on the voting list roughly 60% To 40%;

--approximately 300 women on the voting list had registered and were eligible for jury duty;

--on the current jury list of approximately 9300 there were 180 women drawn, none of whom were Negro women;

--so far as the witnesses knew there had never been a Negro woman on the jury list;

--upon invitation from any women's club or group the election officials would go out or send a representative to speak at their meeting to encourage women to register for jury duty;

--on at least two occasions, once in north Tampa and once in southwest Tampa, such speakings had taken place;

--local 'newspapers have had quite a bit of publication 'urging such voting registration ranging all the way from 'four to six inch spreads to a full page spread', all news articles and editorials, no advertisements; but there had been no concerted effort by the officials 'to encourage or entice or ask any of them (women) to come in' to register for jury duty;

--to their knowledge no such request had ever come from any Negro women's group, but if so it would have been complied with; and

--they had not contacted any such Negro group because 'it wouldn't be our prerogative. It would be theirs to ask us'.

The proviso to F.S. § 40.01, F.S.A. hereinbefore quoted was held constitutional by the Florida Supreme Court in Hoyt v. State, Fla.1959, 119 So.2d 691, and thence by the U.S. Supreme Court in Hoyt v. State of Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118. That case arose from Hillsborough County and involved a white woman defendant, one Gwendolyn Hoyt, who was indicted, tried and convicted of the second degree murder of her husband. She there contended that the proviso violated her Constitutional rights, both Vol non and also in its application to her. The State and the U.S. Supreme Court both upheld constitutionality of the proviso as written and in its application.

Defendant Scott admits the Court decisions as to validity of the proviso, but contends that the fact that 'no Negro woman has ever registered or been called to serve on a * * * jury panel in this County' has resulted in 'the complete exclusion of an identifiable group', namely, Negro women, in violation of their Constitutional rights. Such contention is summarized in his brief filed here as follows:

'The Florida Statute relating to the jury is not discriminatory on its face. Discrimination against Negro women results from the administration of the system. The jury commissioners made no effort to see that Negro women were aware of the requirement to register before they would or could be called for jury service. The jury commissioners made no effort to seek out Negro Women to register so that the panels would reflect a true cross section of the community.'

Thus, defendant infers the jury commissioners had a duty to promote more substantial representation on the jury list by Negro women; that in discharging such 'duty' the commissioners should go out among the Negro communities and the Negro groups and send out notices and messages to their organizations, churches, clubs, etc., advising and counselling the Negro women of the County that they should register for jury duty; and that when the commissioners failed or refused so to do they violated Scott's Constitutional rights--a sort of denial of equal protection by omission.

We cannot agree with such reasoning. While the Courts, particularly the U.S. Supreme Court, have gone a long way toward 'liberalizing' the Negro's Constitutional rights in the area of jury selection, it has never approached the novel doctrine here espoused.

No Negro woman has ever been Excluded from the jury list in Hillsborough County. No Negro woman has ever been Refused the right to serve as a juror. Certainly there has never been any Systematic effort to prevent Negro women in the County from so serving. It is not contended that the jury commissioners did any Positive act to violate Scott's rights. Thus, the vitiating element permeating the cases in this sphere of civil rights litigation, namely, the affirmative act or acts amounting to Constitutional violation by State officials, is not present here.

As said by the U.S. Supreme Court in Hoyt, supra, the right to an impartial selected jury--

'* * * does not entitle one accused of crime to a jury tailored to the circumstances of the particular case, whether relating to the sex or other condition of the defendant, or to the nature of the charges to be tried. It requires only that the jury be indiscriminately drawn from among those eligible in the community for jury service, untrammelled by any Arbitrary and systematic exclusions. See Fay v. (People of State of) New York, 332 U.S. 261, 284--285, 67 S.Ct. 1613, 1625, 1626, 91 L.Ed. 2043, and the cases cited therein. The result of this appeal must therefore depend on whether such an Exclusion of women from jury service has been shown.

Manifestly, Florida's § 40.01(1) does not purport to Exclude women from state jury service. Rather, the statute 'gives to women the Privilege to serve but does not impose service as a duty'. Fay v. New York, supra, 332 U.S. at 277, 67 S.Ct. at 1622. It accords women an absolute exemption from jury service unless they expressly waive that privilege.

* * * Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life. We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she hereself determines that such service is consistent with her own special responsibilities.' (Emphasis supplied.)

The Court then held that the proviso to F.S. § 40.10, F.S.A. was constitutional as written and also 'as applied in this case'. Testimony of the local jury commissioners was taken at the trial level in Hoyt and extensively quoted in the margin of the high Court's opinion, which testimony shows that substantially the same ground was covered there as here.

We emphasize again that defendant has not pointed to any asseverative act on the part of Florida's jury officials that by design has Excluded any Negro woman from jury service. Our point is illustrated again by the high Court in Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, a case involving the preparation of a jury list by state jury commissioners, wherein it was said:

'Although a Negro defendant is...