State v. Alexander, 62502

• Decision Date: 08 September 1981
• Docket Number: No. 62502,62502
• Citation: 620 S.W.2d 380
• Parties: STATE of Missouri, Respondent, v. Charles ALEXANDER, Appellant.
• Court: Missouri Supreme Court

Page 380

620 S.W.2d 380

STATE of Missouri, Respondent, v. Charles ALEXANDER, Appellant.

No. 62502.

Supreme Court of Missouri, En Banc.

Sept. 8, 1981.

Blair Buckley, Jr., Public Defender, Caruthersville, for appellant.

John Ashcroft, Atty. Gen., Nancy Kelly Baker, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Convicted of possession and the sale of methaqualone, a controlled substance, and sentenced to concurrent terms of 20 years, defendant's challenge to the constitutionality of Missouri's talesman statute, § 494.250, RSMo 1978, brings his appeal to this Court. Art. V, § 3, Mo.Const.

As error, defendant contends: (1) The trial court improperly restricted direct examination by ordering defense counsel not to refer to his witness as an informant unless the witness' credibility came in issue; and (2) the jury selection procedure denied defendant's right to an impartial jury mandated by Art. I, § 18(a), Mo.Const. and to one selected from a fair cross-section of the community, as required by the Sixth and Fourteenth Amendments to the United States Constitution.

During 1979, James Clayton Lee, Jr., a trooper with the Missouri State Highway Patrol, posing as a drug purchaser, conducted an undercover narcotics investigation in Pemiscot County, using the assumed name of Jim Clayton. Having first met defendant during September, 1979, on December 7 of that year, Lee went with John Mansfield to defendant's home in Caruthersville. The three men entered defendant's bedroom and Mansfield asked if "(defendant) had any more of those quaaludes". Defendant responded in the affirmative, whereupon Lee asked, "How much do you want for those?" indicating a clear plastic bag containing about 30 white tablets. Defendant replied, "$5.00 apiece" and Lee stated he would buy six pills. Defendant handed Lee six of the tablets, and Lee paid him $30. Placing the tablets in his left shirt pocket, Lee immediately left defendant's house with Mansfield. The tablets were taken to Jefferson City, where a Highway Patrol chemist identified them as methaqualone, a Schedule II controlled substance.

I.

Defendant complains of the trial court's following direction to defense counsel, who had indicated his intention to call Mansfield as a witness,

(you are) not to refer to John Terry Mansfield as an informant of the Missouri State Highway Patrol unless and until his credibility comes, becomes in issue; that is, if the defendant wishes to qualify to treat him as a hostile witness or if the, in cross-examination, the Prosecuting Attorney puts his credibility in issue, and if that happens, at that time, then you may refer to him or recall any witnesses to examine them concerning his status.

Testifying for defendant, Mansfield explained that they had visited defendant's home on December 7, 1979, but stated he saw no exchange of drugs or money. On further inquiry by defense counsel whether Mansfield had ever seen an exchange between defendant and Lee, Mansfield, then facing felony charges, asserted his Fifth Amendment privilege justifiably refusing to answer. On cross-examination Mansfield acknowledged the purpose of their visit to defendant's home was to purchase quaaludes, and he had been a close friend of defendant for 27 years. His re-direct consisted merely of an averment that his previous testimony was true. Defendant, who also testified, gave his version of the events which in part tracked that of Mansfield's, but claimed that while Lee had sought to buy drugs on other occasions, defendant had never sold drugs to him.

It must be emphasized that defendant called Mansfield as his witness and the court's limiting instruction went to that direct examination. The testimony of Mansfield paralleled that of defendant's concerning the incident and he manifested no hostility. Under these circumstances he was not subject to impeachment by defendant, State v. Burrow, 514 S.W.2d 585, 588 (Mo. 1974); State v. Castino, 264 S.W.2d 372, 375 (Mo. 1954), and testimony of his status as an informant was inadmissible at that time. Similarly, testimony bolstering the witness whose credibility had not been attacked would not have been admissible. State v. Christian, 570 S.W.2d 819 (Mo.App. 1978). Thus, defendant's stated intention to introduce evidence of Mansfield's informant status was premature, and absent a showing of hostility or an attack by the State on Mansfield's credibility, an attempt so to do would have been subject to objection.

Defendant also suggests that somehow the trial court's order prevented his effective cross-examination of agent Lee. The relevance of Mansfield's informant status to an attack on Lee's version of the incident is not readily apparent, State v. Harris, --- S.W.2d ---- (Mo. banc 1981) (No. 61674, decided July 14, 1981), and any inquiry of Lee on such collateral matters would also have been subject to proper objection. United States v. Hester, 465 F.2d 1125, 1128 (8th Cir. 1972).

Finally, we note that Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), relied on by defendant, is inapposite. Roviaro prescribes rules for disclosure by the State of an informant's identity, a matter unrelated to the issue before us. Defendant's contention is denied.

II.

Defendant next attacks the constitutionality of the sheriff's actions under § 494.250, RSMo 1978, as violative of his right to trial by an impartial jury guaranteed by Art. I, § 18(a) of the Missouri Constitution, and to a jury selected from a fair cross-section of the community mandated by the Sixth and Fourteenth Amendments to the United States Constitution. ¹ From the Jury Commissioners' master list of 48 regular and alternate jurors, 31 were successfully served with summons. ² Of this number, several having previously been excused, only 22 appeared in court on the date of defendant's trial. On order of the court, the sheriff was then able to procure five additional panelists, apparently from the lists, raising the number to 27. ³ From this array, 6 were excused leaving 21, whereupon the court ordered an additional "venire of six." By early afternoon, the sheriff responded with five "bystanders" as special veniremen. On examination, two of these were excused and from the remaining 24 a jury of 12 was selected and sworn. Throughout these proceedings defendant's motions to "quash jury panel" were overruled.

Our Legislature has provided that if, after the petit juror list has been exhausted either by absences or excuses for cause, the number of remaining veniremen is less than the 24 required by § 494.250.1, RSMo 1978, the sheriff on order of the court "demanding a jury shall summon petit jurors during the term from the bystanders ..." § 494.250.2, RSMo 1978. The validity of this means of veniremen selection has been determined and the process approved absent a specific showing of prejudice. State v. Johnson, 606 S.W.2d 655 (Mo. 1980). Further, one alleging such prejudice is burdened with proving his assertions. State v. Holt, 592 S.W.2d 759 (Mo. banc 1980). Accord, State v. Anderson, --- S.W.2d ----, (Mo. 1981), # 62404 & # 62635, decided this date in Division I.

Defendant's challenge is directed not so much to the statute's facial validity, as to the result of the veniremen selection process. He charges the sheriff chose a disproportionate number of "bystander" jurors from one locality, thereby impairing defendant's right to a jury selected from a fair cross-section of the community. Defendant contends that approximately 90% of the new prospective jurors selected by the sheriff (including those from the lists and the five bystanders) were residents of Hayti and Hayti Heights, while only some 25% of the veniremen originally drawn from the Board of Jury Commissioners' master list were from this vicinity. ⁴

The Sixth Amendment to the United States Constitution, now declared applicable to the States through the Fourteenth Amendment, contemplates that a criminal defendant be tried by a jury selected from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 527-28, 95 S.Ct. 692, 696-97, 42 L.Ed.2d 690 (1975). To prove a violation of this requirement, defendant must demonstrate that (1) the persons allegedly excluded constitute a distinctive class in the community, (2) the representation of this class in the array does not fairly and reasonably relate to their numbers in the community, and (3) this under-representation results from systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); United States v. Kennedy, 548 F.2d 608, 614 (5th Cir. 1977), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140; United States v. Smith, 463 F.Supp. 680, 682 (E.D. Wis. 1979). Defendant's allegations that the utilized process violated the fair cross-section standard fail in at least two respects. First, the group claimed to be under-represented does not constitute a distinctive or cognizable class for purposes of the constitutional question. In determining whether such a class exists, the following factors are pertinent: (1) some quality or attribute defining or limiting the class; (2) a cohesiveness of attitudes, ideas or experiences distinguishing the class from the general social milieu; and (3) the presence of a community of interest which may not be represented by other segments of the populace. United States v. Smith, 463 F.Supp. 680, 682 (E.D. Wis. 1979). Here the thrust of defendant's claim is that persons residing outside the Hayti or Hayti Heights areas (the allegedly under-represented class) constitute a distinctive class for purposes of the fair cross-section requirement. However, nothing appears distinguishing such persons from the residents of the named communities, and absent such showing (and we are unable to perceive how it may be inferred), defendant's claim must be denied. See, United States v. Smith, id., where it...