State v. Camillo, WD

• Decision Date: 02 December 1980
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. John J. CAMILLO, Appellant. 31383.
• Court: Missouri Court of Appeals

Page 116

610 S.W.2d 116

STATE of Missouri, Respondent, v. John J. CAMILLO, Appellant.

No. WD 31383.

Missouri Court of Appeals, Western District.

Dec. 2, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 30, 1980.

Application to Transfer Denied Feb. 9, 1981.

Howard L. McFadden, Public Defender, Jefferson City, for appellant.

John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Defendant was charged as a second offender with the felony of escape, Section 557.351, RSMo 1969, tried by a jury and found guilty, and sentenced by the court to five years confinement in the Missouri Department of Corrections. The five year sentence was ordered to run consecutively with a life sentence being served by defendant for murder, first degree.

Defendant does not question the sufficiency of the evidence to support his conviction. For this reason, an extended synopsis of the trial evidence is unnecessary. Briefly, the state introduced evidence from which the jury could, and obviously did, find beyond a reasonable doubt that on October 2, 1978, defendant, while sentenced to the custody of and lawfully confined by the Missouri Department of Corrections, escaped from the Church Farm, Auxiliary Prison.

On appeal, defendant seeks reversal and remand for a new trial on two grounds which, stated verbatim, are as follows: (1) "The trial court erred in overruling appellant's motion to disclose past jury records of the county in which the case was tried because appellant needed them to show that there has been a pattern of exclusion of blacks, young people, poor people, transients and others which might be regarded as his peers"; and (2) "The trial court erred in failing to order production of prison records to prove that not all escapes are referred for prosecution in that appellant is the victim of selective prosecution."

Defendant's first point, by its very tenor, is integrally related to a motion filed by defendant to quash the jury panel. On May 24, 1979, some three months prior to trial, defendant, although represented by counsel, filed a pro se "Motion to Quash Jury Panel" on the grounds that the "panel and jury system is the production (sic) of systematic exclusion of blacks, young persons and poor persons, such that any trial by the use of said jury would deny the defendant 6th and 14th Amendment rights under the United States Constitution to a fair and impartial jury." Defendant was afforded an evidentiary hearing on said motion on May 29, 1979. Prior to said hearing defendant filed a pro se "Motion for Discovery", which, by no stretch of the imagination, sought discovery or disclosure of any matter which would aid defendant in meeting the burden he carried with respect to his motion to quash the jury panel.

Evidence presented at the hearing held on the motion to quash the jury panel consisted solely of defendant's own testimony. Fairly summarized, defendant testified that nothing short of a jury composed of inmates of the penitentiary would constitute a jury of his "peers". He rationalized that only inmates of the penitentiary could appreciate and understand "conditions" and "pressures" existing in prison life. Defendant characterized "young persons" as people between twenty-one and thirty years of age. ¹ He did not undertake to explicate those whom he referred to as "poor persons". Defendant has left "poor persons" as a "distinctive" group so adrift that it no longer needs to be considered.

Defendant was pointedly asked by the trial court at the hearing on his motion to quash the jury panel whether he had any evidence that "blacks", "young persons", or "poor persons" were systematically excluded from "jury panels" in Cole County and defendant replied that he neither had nor knew of such evidence.

No evidence was offered or presented by defendant as to what percentage of the population of Cole County was comprised of either "black persons" or "young persons". Nor was any evidence offered or presented by defendant as to the manner in which persons comprising jury "lists" in Cole County were selected or the manner in which jury panels were drawn.

At the conclusion of the hearing, the trial court overruled defendant's motion to quash the jury panel. On August 22, 1979, defendant, pursuant to Rule 25.33 (now Rule 25.04), filed a motion captioned "Motion By Defendant To State To Disclose" which, insofar as pertinent at this juncture, sought an order from the trial court directing the state to produce "(r)ecords of the last 10 years reflecting the jury venerie as well as the jury records reflecting those jurors who have actually served on Circuit Court juries in the Circuit Court of Cole County." Counsel for defendant tendered the following argument at a hearing held in conjunction with said latter motion: "Your Honor, it is the defendant's opinion that or at least he supposes that based upon past venires the Court would be unable to impanel a jury venire of his peers, based upon his background and his lifestyle, and feels that because of this he would be denied a quote 'jury of his peers' as the statute and constitution provides.... Your Honor, I believe his position would be that this would show that the individuals who might possibly be on a venire here would not have the same background he has had. And I would imagine in that light he would be saying that as a result of not being not having the same background, therefore, not being his peers, they would not be impartial judges of the case." The trial court denied the "Motion By Defendant To State To Disclose."

It is significant to note that the latter motion was filed and argued after defendant's motion to quash the jury panel was overruled. There is no indication in the record that defendant sought leave of court to refile his previous motion to quash the jury panel or that he contemplated filing a new motion to do so. Of even greater significance is the fact that counsel for defendant, in the argument proffered in support of the "Motion By Defendant To State To Disclose", neither contended nor suggested that "records of the last 10 years reflecting jury venerie as well as the jury records reflecting those jurors who have actually served on Circuit Court juries in the Circuit Court of Cole County" might or would contain information which would prove or tend to prove what percentage of the population of Cole County in 1979 or any other year consisted of either "black persons" or "young persons". Nor has defendant contended or suggested on appeal that the records sought and denied contained such information.

In Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975), the Supreme Court of the United States reaffirmed that "the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." In order to preserve the inviolability of this component Sixth Amendment right, the Supreme Court concluded in Taylor, 419 U.S. at 538, 95 S.Ct. at 702, that "jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." In Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979), the Supreme Court spelled out the "fair-cross-section" inquiry implicit in Taylor : "In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (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 jurys 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 exclusions of the group in the jury-selection process."

Contrary to what appears to be a popular notion in some quarters, attacks on the composition of jury panels on constitutional grounds do not prove themselves. To the contrary, those leveling such attacks must carry the burden set forth in Duren v. Missouri, supra. Jury panels in this state are uniquely county oriented in the sense that their demographic makeup varies from county to county. For this reason, only demographic data of the county where a defendant is tried is probative. Moreover, something more than conjectural demographic data is required.

In order to dispose of defendant's first point, it is unnecessary to decide whether defendant's request for disclosure was "reasonable" and the records sought were subject to disclosure under Rule 25.33 (now Rule 25.04) ². Even if one assumes, arguendo, that defendant's motion to quash the jury panel was pending before the trial court and that the records sought by the "Motion By Defendant To State To Disclose" were subject to discovery, there is still no escape from the fact that defendant neither contends nor suggests that the records sought contained information which would prove what percentage of the population of Cole County in 1979, or any other year, consisted of either "black persons" or "young persons". In order to establish a prima facie violation of the fair-cross-section requirement inherent in the Sixth Amendment (applicable to jurys in state court proceedings by the Fourteenth Amendment), it was incumbent upon defendant to show, among other things, that "black persons" and "young persons" were "distinctive" groups in Cole County and that representation of those groups in venires in Cole County, from which petit jurors were selected, was not fair and reasonable in relation to the number of such persons in Cole County. As previously pointed out, defendant does not contend or suggest that this evidentiary void would have been filled or alleviated by any information contained in the...