State v. Curry, 51453

• Decision Date: 18 May 1972
• Docket Number: No. 51453,51453
• Citation: 262 La. 280,263 So.2d 36
• Parties: STATE of Louisiana v. J. C. CURRY.
• Court: Louisiana Supreme Court

Page 36

263 So.2d 36

262 La. 280

STATE of Louisiana v. J. C. CURRY.

No. 51453.

Supreme Court of Louisiana.

May 18, 1972.

Rehearing Denied June 13, 1972.

Paul Henry Kidd, Robert P. McLeod, Monroe, George M. Strickler, Jr., New Orleans, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, George H. Robinson, Asst. Attys. Gen., Hal R. Henderson, Dist. Atty., for plaintiff-appellee.

SANDERS, Justice.

By Bill of Information, the State charged J. C. Curry with aggravated criminal damage to property in violation of LSA-R.S. 14:55. The court overruled the defendant's motions to quash the petit jury venire and for a change of venue. After trial, the jury returned a verdict of guilty. The judge sentenced the defendant to a term of 12 years in the Louisiana State Penitentiary. ¹

The defendant has appealed, relying upon four bills of exceptions reserved in the trial court.

The background facts may be briefly summarized. During 1970, several incidents of racial violence erupted at Homer, Louisiana. On the night of June 12, 1970, Lynn Albritton drove his automobile into the Rose Oil Station at Homer. In the automobile with him were Marion Keene and Steve Middleton. Although the service station attendant had already begun to close for the night, he moved toward the automobile. When he had reached a point between the right door and hood, several shots were fired from behind the service station, striking the automobile. Keene and Middleton were hit by shotgun pellets. Albritton quickly drove away. The three reported the incident to the police and sought medical attention.

Law enforcement officers later arrested J. C. Curry, the present defendant, and several others for the offense.

BILL OF EXCEPTIONS NO. 1: Motion to Quash Petit Jury Venire.

Defendant filed a motion to quash the petit jury venire, on the ground that the names for the general venire were taken from the Voter Registration Rolls, that the Rolls did not adequately reflect a proper percentage of 'the classes to which defendant belonged,' and that women were excluded from the jury bodies. The trial judge held an evidentiary hearing and overruled the motion.

Fairness in the selection of jury bodies is a fundamental requirement of both the state and federal constitutions. In the trial of a negro defendant, the jury must be selected without discrimination against members of the defendant's race. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); State v. Rideau, 249 La. 1111, 193 So.2d 264 (1966), cert. den. 389 U.S. 861, 88 S.Ct. 113, 19 L.Ed.2d 128; State v. Mack, 243 La. 369, 144 So.2d 363 (1962), cert. den. 373 U.S. 917, 83 S.Ct. 1306, 10 L.Ed.2d 416.

In State v. Mack, supra, this Court stated:

'The law is well settled that a defendant is denied the equal protection of the laws guaranteed by the Fourteenth Amendment if he is indicted by a grand jury or tried by a petit jury from which members of his race have been excluded because of their race. Such racial discrimination is likewise prohibited by state law. The law requires that a jury be selected without regard to race. This Court has recognized and applied these principles.' (footnotes omitted).

The order convening the Jury Commission in the present case directed the Commission to select the general venire of three hundred from the Registration Rolls in the following manner:

'The number to be selected shall be divided into the total number of names on said list and the quotient obtained therefrom shall be the number used for the constant arithmetical progression. To obtain the first number on the list, a group of numbers equal to the arithmetical progression to be utilized shall be mixed and placed into a box and therefrom one number shall be drawn. This number shall constitute the first name to be selected, and thereafter each name shall be selected according to the arithmetical progression, provided that should any name so selected be the name of a person known by the Clerk of Court or either of Jury Commissioners to be a woman who has not expressed a willingness to serve as a juror in accordance with Louisiana Code of Criminal Procedure, Article 402, or persons exempt from Jury service in accordance with Article 403, or a person who does not qualify for jury service under Article 401 (General Qualification of Jurors), then and in that event, the name to be selected shall be the next name immediately above who would not be subject to disqualification or exempt from Jury service for any of the reasons enumerated in Article 401, 402 and 403. For example, should the list of registered voters be composed of 6300 names, the number 300 would be divided into 6300, and the answer obtained, 21, would constitute the arithmetical progression. The numbers 1 through 21 would then be placed into a box and a number selected at random therefrom in order to obtain the first name to be selected from the list of registered voters. Should the number so selected be number '14,' the fourteenth name on the list of registered voters would be placed into the General Venire Box along with the names of every twenty-first person thereafter. In the event that the arithmetical progression should stop on a person who is not qualified or exempt from Jury duty in accordance with Articles 401, 402 and 403 of the Louisiana Code of Criminal Procedure, the Clerk and Jury Commission shall then go back up the list and obtain the name of a person who is not exempt or disqualified. Thereafter the arithmetical progression shall continue from the name upon which it first stopped.'

The record reflects that the system was faithfully followed. Clearly, no racial discrimination was practiced in the selection of the names from the Registration Rolls for the general venire.

No racial discrimination occurred in the formation of the petit jury venire or panel. The names for the petit jury venire were drawn from the general venire 'indiscriminately and by lot.' See LSA-C.Cr.P. Art. 416. In selecting the trial jury panel, the names were drawn 'indiscriminately and by lot in open court.' See LSA-C.Cr.P. Art. 784.

The sole question is whether or not the use of the Voter Registration Rolls as the source of names for the general venire rendered the jury bodies unrepresentative and discriminatory.

The defendant contends that the use of the Registration Rolls undermines the fairness of the petit jury bodies, because the rolls did not adequately reflect the racial composition of the parish.

The State, on the other hand, asserts that no showing has been made of racial discrimination in voter registration, that the Registration Rolls represent a rough cross-section of the community, and that the jury bodies are not constitutionally discriminatory merely because they do not reflect the exact racial percentages of the general population.

The record discloses that the Voter Registration Rolls were composed of 66% White voters and 34% Negro voters. The names of 2,768 Negroes appeared on the rolls. The 1970 projected census for Claiborne Parish shows that 48.3 percent of the population are Negroes. Among the adult males, 44.6 percent are Negroes.

Seven Negroes were on the petit jury venire of thirty for defendant's case.

We have often held that, absent a showing of racial discrimination in voter registration, that the Voter Registration Roll is a proper source of names for the general venire. See State v. Poland, 255 La. 746, 232 So.2d 499 (1970); State v. Rideau, supra.

In State v. Poland, supra, we reviewed the jurisprudence and stated:

'It is argued the jury was selected solely from the parish list of registered voters and the federal courts held portions of Louisiana laws controlling such registration to be illegal and unconstitutional in United States v. Louisiana, D.C., 265 F.Supp. 703; Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709, and United States v. Clement, 5 Cir., 358 F.2d 89.

'These authorities do not sustain the contention of defense counsel. The legality of the jury venire of East Baton Rouge Parish under Louisiana voter registration laws was not involved in any of these cases; nor were provisions of Louisiana law under which this registration roll was made up declared therein to be illegal and/or unconstitutional. Furthermore, the same argument that the practice of taking names in the general venire from the registration rolls constituted discrimination against Negroes was advanced in State v. Rideau, 249 La. 1111, 193 So.2d 264. This court, upholding the lower court's ruling that defendant made no showing of racial discrimination in the registration of voters, pointed out, further, that the evidence established the jury bodies were formed without discrimination because of race.

The Supreme Court of the United States refused to review this holding. 389 U.S. 861, 88 S.Ct. 113, 19 L.Ed.2d 128.

'Additionally, the authorities relied on by defense counsel do not support their contention under these same bills that defendant made out a prima facie case of discrimination against Negroes which must stand since this evidence was not rebutted by the state, i.e., Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22, and Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25.

'The evidence offered by defendant in this respect consisted of (1) an affidavit reflecting that during the months of May, June, and July 1966 the registration rolls of East Baton Rouge Parish consisted of approximately 85,500 voters, of which some 15,000 or 17.8% Were colored; (2) the 1960 census of the parish; and (3) a stipulation to the effect that if the clerk of court of the parish were called as a witness he would testify the venire was made up solely of names on the registration rolls 'and that this selection had been without regard to race, color or creed.''

'The cases of Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22, and Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4,...