Sistrunk v. State

• Decision Date: 03 September 1993
• Citation: 630 So.2d 147
• Parties: Donnie SISTRUNK v. STATE. CR 92-694.
• Court: Alabama Court of Criminal Appeals

Page 147

630 So.2d 147

Donnie SISTRUNK v. STATE.

CR 92-694.

Court of Criminal Appeals of Alabama.

Sept. 3, 1993.

Rehearing Denied Oct. 22, 1993.

Certiorari Denied Dec. 17, 1993

Alabama Supreme Court 1930187.

W. Stanley Garner, Jr., Ozark, for appellant.

James H. Evans, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

The appellant, Donnie Sistrunk, was convicted of the unlawful possession of cocaine, in violation of Ala.Code 1975, § 13A-12-212. He was sentenced as a habitual offender to ten years' imprisonment and was ordered to pay court costs and $50 to the Crime Victims' Compensation Fund. The appellant raises four issues in this appeal from his conviction.

I

The appellant contends that his Sixth Amendment rights were violated because he was denied a jury venire representing a fair cross-section of the community. This claim is based on his assertion that blacks were underrepresented on the venire from which he was required to strike his jury.

At the outset, we note that this issue was first raised in the appellant's motion for a new trial and, consequently, has not been properly preserved for our review. See Lehr v. State, 398 So.2d 791, 800 (Ala.Cr.App.1981). "An issue that was not timely raised at trial will not be considered on appeal.... Even constitutional issues must first be correctly raised in the trial court before they will be considered on appeal." Hansen v. State, 598 So.2d 1, 2 (Ala.Cr.App.1991). Nevertheless, we will address the merits of this issue because a resolution of this issue is necessary to the disposition of the appellant's ineffective assistance of counsel claim discussed in Part III below.

At the hearing on his motion for a new trial, the appellant offered evidence that "as of 1992" blacks constituted 17.82% of the general population of Dale County and 15.46% of the persons of voting age, R. 151; that jurors summonsed for a particular court term are "picked at random by the computer" from Dale County residents "who have drivers' license[s]," R. 153; and that the panel from which his jury was struck consisted of 36 persons, only 2 of whom, or 5.55%, were black, and, when 1 of the 2 black veniremembers was excused for cause, ¹ he was left with a panel that was only 2.85% black.

The appellant was tried on Tuesday and Wednesday, November 17 and 18, 1992. The "Clerk's Roll Call," which was introduced at the hearing, indicates that 59 persons appeared for jury duty on Monday, November 16. Exhibit Record (Ex.R.) 14-15. Of these 59 prospective jurors, 11, or 18.64%, were black. It appears from the roll call that one white prospective juror was excused on November 17, leaving a venire that was 18.96% black.

A jury was struck in another criminal case on Monday, November 16. At the hearing on the motion for a new trial, the attorneys and the trial court made references to the venire's having been "split" alphabetically in order to provide panels for that trial and for the appellant's trial. However, the clerk's jury strike records from the other trial, which were introduced at the request of the State, clearly indicate that the jury in that case was struck from the entire venire of 59 members. Ex.R. 18-20. When seated, that jury consisted of 7 blacks and 5 whites. Ex.R. 17. The prosecutor indicated that the trial of that case was still in progress on Tuesday, November 17, when the jury was struck in the appellant's case.

The Sixth Amendment requires that petit juries "be drawn from a source fairly representative of the community." Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975). When raising a claim under this requirement, a defendant "has the burden of establishing a prima facie case of a 'fair cross section' violation. Rayburn v. State, 495 So.2d 733 (Ala.Crim.App.1986)." Pierce v. State, 576 So.2d 236, 241 (Ala.Cr.App.1990), cert. denied, 576 So.2d 258 (Ala.1991). In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the United States Supreme Court held that a defendant seeking to establish a prima facie case of a violation of the fair cross-section requirement must demonstrate the following three elements:

"(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group 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 this underrepresentation is due to systematic exclusion of the group in the jury-selection process."

439 U.S. at 364, 99 S.Ct. at 668. While the appellant established that blacks are "a 'distinctive' group in the [Dale County] community," see Lee v. State, [Ms. CR 91-294, March 5, 1993] --- So.2d ---- (Ala.Cr.App.1993), it is clear that he has failed to establish the last two of the three Duren elements.

The third Duren element--that there has been a systematic exclusion of a distinctive group--constrains a defendant to establish that "the cause of the underrepresentation was ... inherent in the particular jury-selection process utilized." Duren, 439 U.S. at 366, 99 S.Ct. at 669. In this case, the appellant established that the original venire was obtained by random selection from the list of licensed drivers in Dale County. Random selection from a list of licensed drivers has been held to be an acceptable manner in which to select a venire. See Stewart v. State, 623 So.2d 413 (Ala.Cr.App.1993); Joyce v. State, 605 So.2d 1243, 1245 (Ala.Cr.App.1992). Furthermore, in this particular case, the process used to select the venire clearly did not result in any underrepresentation of blacks--the venire had a slightly greater percentage of blacks that did the general population of Dale County.

It is true that the particular panel from which the appellant's jury was struck contained a substantially smaller percentage of blacks than does the population of Dale County. However, the fair cross-section requirement "ensures only a venire of randomness, one free of systematic exclusion. It does not ensure any particular venire." Note, United States v. Gelb: The Second Circuit's Disappointing Treatment of the Fair Cross-Section Guarantee, 57 Brook.L.Rev. 341, 343 n. 7 (1991). "Rather than being entitled to a cross-sectional venire," a defendant "has a right only to a fair chance, based on a random draw, of having a jury drawn from a representative panel." Comment, The Cross-Section Requirement and Jury Impartiality, 73 Cal.L.Rev. 1555, 1565 (1985). See Johnson v. State, 502 So.2d 877, 880 (Ala.Cr.App.1987) (venire need not be " 'a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group' "). Cf. United States v. Percival, 756 F.2d 600, 615 (7th Cir.1985) ("It is the master jury wheel, not the actual grand jury, which must represent a fair cross section of the community. So long as the master jury wheel is adequate and the prescribed procedure is thereafter followed, there can be no complaint that the panel ultimately produced by random selection is somehow underrepresentative in result.") (citations omitted).

In this case, 7 of the 11 blacks in the original venire had been selected to sit on another petit jury when the appellant's jury was struck. The fact that they were not available as part of the appellant's panel is attributable only to the "luck of the draw," rather than to anything "inherent" in the selection process.

We note that there are 2 blacks and 8 whites from the original venire who were unaccounted for at the time the appellant's jury was struck. ² However, there is absolutely nothing in the record to suggest that any of these potential jurors had been systematically excluded from the appellant's panel. In fact, it does not appear that anyone at the hearing on the motion for a new trial realized that 10 jurors were unaccounted for. As noted above, there were several references to an alphabetical "split" of the original venire in order to create two panels. Even assuming that this alphabetical "split" occurred, the appellant has made no showing that the fact that only 2 of the original 11 blacks were on his panel "was due to anything other than mere coincidence." United States v. Guy, 924 F.2d 702, 706 (7th Cir.1991). See Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U.Chi.L.Rev. 153, 184-85 (1989) (concept of systematic exclusion does not appear "to encompass 'accidental' exclusion (however frequently it may occur)").

"In the absence of a showing of systematic exclusion, the showing of a disparity between the percentage of blacks in the population of the county in which venue is situated and the percentage of blacks on the venire does not establish a violation of the fair cross-section requirement." Stewart v. State, 623 So.2d 413 (Ala.Cr.App.1993). Moreover, with regard to the second and third Duren elements, a defendant asserting a fair cross-section violation "must demonstrate ... not only that [blacks] were not adequately represented on his jury venire, but also that this was the general practice in other venires." Timmel v. Phillips, 799 F.2d 1083, 1086 (5th Cir.1986). Accord Comment, 73 Cal.L.Rev. at 1565 ("Both federal and state law will infer a systematic flaw only from significant underrepresentation on a number of previous venires. This policy presumably reflects a conviction that an individual instance of underrepresentation might be a coincidence, whereas a pattern will betray a systematic procedural abuse.") (footnotes omitted). Except for evidence of the composition of the venire in the trial of the criminal case that began the day before his trial, where blacks were clearly well represented, the appellant has offered no evidence concerning the racial composition of other venires in Dale County. The appellant has simply failed to prove a prima facie case of a fair cross-section v...