Smith v. State

• Decision Date: 01 April 1975
• Docket Number: 5 Div. 247
• Citation: 54 Ala.App. 561,310 So.2d 484
• Parties: John Will SMITH, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 484

310 So.2d 484

54 Ala.App. 561

John Will SMITH, alias v. STATE.

5 Div. 247.

Court of Criminal Appeals of Alabama.

April 1, 1975.

E. Drexel Meadors, Lanett, for appellant.

William J. Baxley, Atty. Gen. and Jonathan P. Gardberg, Sp. Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment. Prior to arraignment he was ascertained to be indigent and counsel was appointed to represent him throughout the trial proceedings and on this appeal. He pleaded not guilty and not guilty by reason of insanity.

Omitting the formal parts, the indictment is as follows:

'The Grand Jury of said County charge that before the finding of this Indictment Charles A. Wilson, alias Charles 'Rabbit' Wilson, alias Charlie Wilson, Norman Shealey, alias Norman Shealy, John Will Smith, alias Curtis Greer, alias Curtis Vines and Andrew McCollough, Jr., alias Andrew McCollough, whose true christian names are otherwise unknown to the grand jury unlawfully and with malice aforethought, killed William Henry Henderson, by beating him with their fist and stomping and kicking him with their feet, contrary to law, against the peace and dignity of the State of Alabama.'

A severance was granted and appellant filed the following motion to quash the trial venire:

'MOTION TO QUASH TRIAL VENIRE

'Comes the defendant, John Will Smith, and moves the Court to quash the trial venire and for grounds of said motion the defendant sets down the following:

'1. That the trial venire was not compiled in compliance with Title 30, Section 20, Code of Alabama (Recomp. 1958).

'2. That the trial venire was compiled in a manner so as to systematically exclude members of the Negro race.

'3. That the trial venire was compiled in such a manner as to deprive defendant of due process of law guaranteed under the United States Constitution.

'4. That the trial venire was compiled in such a manner as to not include the name of every qualified person and that this action was done fraudulantly (sic) and in denial of defendant's constitutional rights.

'5. That the trial venire was compiled in such a manner as to systematically exclude persons who are employed on an hourly wage basis.

'6. That the trial venire was compiled in such a manner as to exclude a substantial number of those persons required to be included under Title 30, Section 18, Code of Alabama (Recomp. 1958).

'7. That the trial venire was not compiled in compliance with Title 30, Section 18, Code of Alabama (Recomp. 1958).'

A full-blown hearing was had on the motion to quash the trial venire at which hearing the three jury commissioners of Chambers County were called to testify at the hearing in support of the motion. For the sake of brevity, we will summarize the testimony of these three witnesses.

Mr. J. Prichard Guinn testified that he was appointed in May, 1973; that the jury commission met three or four times a year at the call of the chairman. He said he would get up a list of prospective jurors personally and turn the list over to the clerk of the jury commission. His best recollection is that he submitted a list of forty names to the clerk in January or February before this case was called for trial in March, 1974. He said he did not consider the list of qualified voters of Chambers County but tried to get jurors over twenty-one and under sixty-five who were in good health, sound mind and who had a good mentality. He did not consider one's employment on the ground that the juror might lose money by serving on the jury. He further testified that the commission did not systematically exclude anyone, black or white, from jury duty; that there was a good representation of blacks on the jury roll and in the jury box of Chambers County. He further testified that he was in court when the jury was qualified for appellant's trial and noted that there were nineteen (19) blacks on the jury venire out of a hundred (100) jurors on the trial venire in this case. He did not know if the forty names he submitted were in the jury box but he presumed they were as he gave the list to the clerk of the commission.

Mrs. Dot Allen testified that she had been on the jury commission for about nine (9) years and served as clerk of the commission. She said they had a jury roll which was kept in the vault in the Probate Office and that the Circuit Clerk kept the key to this vault; that in making up the jury roll they would make contact with different citizens to get the names of prospective jurors and they would use the qualified voters list of Chambers County; that at times she would receive telephone calls from people who wanted to serve on the jury; that sometime in 1973 some attorney told her he did not think they had a fair representation of jurors from the Valley area. She mentioned this to Mr. Guinn who was more familiar with the people employed in that area which was much larger than most of the other beats in the county and asked him to get names from the Valley area; that Mr. Guinn would work the Valley area and bring to her a list of prospective jurors; that the other member of the commission would visit various beats and bring a list of names to be submitted for consideration by the commission to be placed on the jury roll. She said there were a great number of Valley people in the jury box.

Mrs. Allen said the jury commission met at least once a month and that they held meetings between the months of August and December each year; that the jury commission acts as a body when they select names for jury duty; that on a very few occasions she has put a few names in the jury box but at the very next meeting of the full commission, she informed them of her actions and they voted to ratify and confirm her actions. She further said that when she served with the old jury commission a few years ago, they added women, black and white, to the jury roll and the jury box of the county.

She further testified that the whole county was well represented in the jury box of Chambers County.

She said she did not go through the telephone books, the tax assessor's record, or the utility companies in the county as she felt all of these names were on the list of qualified voters, and that this was their best source of information in addition to the personal contacts made in the various beats in the county.

Mr. J. D. Burton testified that he was appointed to the jury commission in 1972. He said that once or twice a week he would go out in the county and get names to go on the jury roll and in the jury box; that since he had been on the commission, he had submitted to the clerk well over a hundred names and all the commissioners were present when names were added to the jury roll and cards were put in the jury box. He said that he frequently made personal contacts as he knew practically everybody in Chambers County and where they were employed; that he looked for people with integrity, good reputations and good health.

To direct questions propounded by the court, he testified that they did not exclude any person because he or she was black and that he felt that the number of blacks in the jury box represented a good proportion of the black population of the county; that they did not exclude anyone because he or she worked for wages and that he knew where everyone was employed most of the time.

The court overruled and denied the motion to quash the trial venire.

The testimony of the jury commissioners in this case shows not only a lack of intentional or purposeful exclusion of Negroes, or others, from the jury roll or the jury box of Chambers County, but on the contrary demonstrates a conscious and meritorious effort on the part of all of them to gather, and to keep gathering, additional names of Negroes, and others, qualified for jury duty.

Fraud required to quash a venire is the intentional omission from the jury roll and the jury box of large numbers of legally qualified citizens. In Shields v. State, 52 Ala.App. 690, 296 So.2d 786, certiorari denied, 292 Ala. 749, 296 So.2d 793, this Court said:

'The fraud required to quash the venire is the intentional omission from the jury roll of names of a large number of legally qualified citizens, and such intentional systematic exclusion must be shown.'

In Acoff v. State, 50 Ala.App. 206, 278 So.2d 210, this Court held:

'This Court is of the opinion that the appellant's motion to quash the jury on the basis of the alleged systematic exclusion of black persons was properly denied. The evidence here has failed to establish that the jury roll produced a result which was 'spectacularly not a cross section of the community.' Jackson v. Morrow, Fifth Cir., 404 F.2d 903. Moreover, there has been no evidence given that different standards of qualifications were applied by the jury commissioners to the black community or that the Dallas County Jury Commission was influenced by racial considerations in making its selection of prospective jurors. White et al. v. State, 48 Ala.App. 111, 262 So.2d 313; Bryant and Williams v. State, 49 Ala.App. 359, 272 So.2d 286, cert. den. 289 Ala. 740, 272 So.2d 297.'

Title 30, Section 46, Code of Alabama 1940, provides:

'No objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors.'

In Junior v. State, 47 Ala.App. 518, 257 So.2d 844, certiorari denied, 288 Ala. 744, 257 So.2d 852, certiorari denied, 407 U.S. 923, 92 S.Ct. 2473, 32 L.Ed.2d 810, we said:

'It is now well settled that the aim and purpose of the law is to obtain juries which truly represent a cross-section of the community. But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him, nor on the venire or jury roll from which grand and petit juries are drawn. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.

'The appellant's contention in this case must be grounded upon proof...