State v. Cage

• Decision Date: 13 September 1976
• Docket Number: No. 57688,57688
• Citation: State v. Cage, 337 So.2d 1123 (La. 1976)
• Parties: STATE of Louisiana v. Harry CAGE.
• Court: Louisiana Supreme Court

Page 1123

337 So.2d 1123

STATE of Louisiana v.Harry CAGE.

No. 57688.

Supreme Court of Louisiana.

Sept. 13, 1976.

Rehearing Denied Oct. 13, 1976.

Arthur L. Harris, Sr., Harris, Stampley, McKee, Bernard & Broussard, New Orleans, for defendant-respondent.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-relator.

DENNIS, Justice.

The defendant, Harry Cage, was indicted for aggravated rape by a grand jury in Orleans Parish.He moved to quash the indictment on the grounds that citizens residing in the Desire housing project were intentionally excluded from the venire from which the grand jury was chosen.The trial judge sustained the motion to quash, and the State appealed.Two days earlier we held that, unless a law or ordinance has been declared unconstitutional, the State has no right of appeal from an adverse ruling in a criminal case.State v. James, 329 So.2d 713(La.1976).However, because of the brief time between our ruling and the State's appeal, we will consider its motion as an application for writs, and review the trial court proceedings under our supervisory jurisdiction.

The Desire project houses approximately 9,500 black citizens, of whom some 2,695 are at least eighteen years of age.The record is devoid of evidence that any of these adults could not qualify as a juror under La.C.Cr.P. art. 401.Nevertheless, the jury commission discontinued the service of subpoenas upon persons residing in the project during the preparation of the venire from which the grand jury was selected in this case.The chairman of the jury commission testified this action was taken because some process servers had been threatened with guns and had had their automobile tires slashed in the project.However, the chairman testified that in August, 1975, the commission resumed the service of subpoenas in the Desire project with police protection.

The United States Supreme Court in Thiel v. Southern Pacific Company, 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181, 1184(1946), in the course of exercising its supervisory powers over federal trials, laid down the principles for the selection of fair and impartial jurors from a representative cross-section of the community:

'The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community.Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (86);Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680 (707).This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and Geographical groups of the community; frequently such complete representation would be impossible.But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society.Jury competence is an individual rather than a group or class matter.That fact lies at the very heart of the jury system.To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.'(Emphasis added).

As a result of later decisions by the high court, E.g., Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491(1968);Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690(1975);Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83(1972), these requirements are now applicable to the selection of state petit and grand juries under the Sixth and Fourteenth Amendments to the United States Constitution.

Louisiana has adopted these principles in its constitution, La.Const. Art. I, § 16, Art. V, §§ 33, 34(1974), its statutory law, La.C.Cr.P. arts. 401, Et seq., and in the rules of its highest court, La. Supreme Courtrule XXV.

We recognized our commitment to these principles in State v. Enloe, 276 So.2d 283(La.1973) wherein we held that '(i)n the context of jury selection, due process requires only that the defendant be afforded with a jury from which there has been No arbitrary exclusion of any particular group of individuals * * *'(emphasis added), and recently in State v. Procell, 332 So.2d 814(La.1976), wherein we reversed a conviction by a jury from which the jury commission had intentionally excluded those whom it anticipated would claim exemptions from jury service.

In finding that the grand jury in the instant case had not been properly selected, the trial judge stated:

'The court is of the opinion that the jury selection process was not a complete cross-section of the community based upon the fact that the action of the Jury Commissioner and his process servers, operating outside the scope of their authority, systematically and intentionally deprived a certain section of the population, namely persons who are black, who live in subsidized housing, and belong to a certain socio-economic segment of the community, from the possibility of appearing on the grand jury which indicted Harry Cage.The cases cited in this opinion, along with the Louisiana Code of Criminal Procedure and the testimony adduced upon hearing on the motion, is the basis for the Court's ruling.'

The State does not deny that the jury commission failed to follow the law or that it excluded Desire project residents from possible service upon the grand jury.However, the State argues that the trial judge was in error in quashing the indictment because, under the circumstances, the failure to serve subpoenas within the project was excusable and, in any event, did not prevent the impanelling of a grand jury venire representing a fair cross-section of the community.

We are not persuaded by these arguments.In the instant casethe defendant did not seek to establish a prima facie case of purposeful discrimination by statistical data, which the State then might have overcome by evidence presenting a constitutionally acceptable explanation for racial or class disparities shown to exist.Cf.Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599(1967);Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757(1939);Salary v. Wilson, 415 F.2d 467(5th Cir.1969);Billingsley v. Clayton, 359 F.2d 13(5th Cir.1966).Instead, he demonstrated directly with the testimony of the chairman of the jury commission an intentional exclusion from jury service of a sizeable geographical group within the parish.The State asserted, without proof, that despite the exclusion of the Desire project dwellers, the grand jury venire constituted a cross-section of the community because poor...