State v. Coleman, KCD

• Decision Date: 30 April 1979
• Docket Number: No. KCD,KCD
• Citation: 582 S.W.2d 335
• Parties: STATE of Missouri, Respondent, v. John COLEMAN, Appellant. 30043.
• Court: Missouri Court of Appeals

Page 335

582 S.W.2d 335

STATE of Missouri, Respondent, v. John COLEMAN, Appellant.

No. KCD 30043.

Missouri Court of Appeals, Western District.

April 30, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 11, 1979.

Application to Transfer Denied July 17, 1979.

Clifford A. Cohen, Public Defender, Kevin Locke, Lee M. Nation, Asst. Public Defenders, Kansas City, for appellant.

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

Before SHANGLER, P. J., and WASSERSTROM and CLARK, JJ.

SHANGLER, Presiding Judge.

The appeal is from a conviction by jury for murder in the second degree. We reverse and remand for new trial on the principle of Duren v. State of Missouri, 439 U.S. ---, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

At commencement of trial the defendant moved quashal of the jury venire on the grounds that the procedures by law (Article I, § 22(b) of the Missouri Constitution of 1945 and § 494.031, RSMo 1969)) which exempt from service as a juror any woman who requests excuse on account of gender deny a right to jury by a representative segment of the community in violation of the Sixth and Fourteenth Amendments to the United States Constitution. The motion was accompanied by a stipulation that the method used by the Jury Commissioner of Jackson County to devise the jury wheel for the year 1976 was employed for the year 1977. The stipulation was amplified by an agreed incidence of statistics (between January and July of that year) of women who claimed gender exemption and, ultimately, the numbers by gender which made up the wheel. The motion for quashal of the venire was denied by the trial court and the proceeding went to judgment and conviction.

The same challenge (but on a statistical incidence between June-October of 1975 and January-March of 1976) was made to the petit jury venire, and rejected, in State v. Duren, 556 S.W.2d 11 (Mo. banc 1977). On certiorari, the United States Supreme Court found, however, that the petit jury selection process by Missouri law, as given effect in Jackson County, resulted in a systematic exclusion of women so that the jury venires were not representative of the community in violation of the Sixth Amendment rule in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

The defendant contends that the United States Supreme Court opinion in Duren, made retrospective by effect, determines his contention for reversal. It is the contention of the State, however, that neither the statistical data for Duren (which dealt with the jury wheel and venire compositions for segments of the years 1975 and 1976) nor the statistical data by stipulation (as to the jury wheel composition for the first seven months of 1976) determines a comparable discriminatory effect for the petit jury pool for 1977, when the defendant was tried.

We have rendered opinions concurrently to reverse and remand criminal convictions returned in 1977 on a stipulation by the prosecution that the method used to devise the Jackson County petit jury wheel was that employed in year 1976 (State v. Tate, 582 S.W.2d 329, No. KCD 29,875; State v. Buford, 582 S.W.2d 298, No. KCD 29,658) on a stipulation of statustics which show continued underrepresentation of females in jury venires of that venue in year 1976 beyond the base period of Duren (State v. Peters, 582 S.W.2d 323, No. KCD 29,710), and on a stipulation that the method for selection of the petit jury was that used in State v. Hardy, 568 S.W.2d 86 (Mo.App.1978) reversed on certiorari companion to Duren, 439 U.S. ---, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) (State v. Heavey, 582 S.W.2d 284, No. KCD 29,834). These proofs concede, and these precedents decide, that the systematic gender discrimination in Jackson...