State v. Donahue, 30315

• Decision Date: 29 June 1979
• Docket Number: No. 30315,30315
• Citation: 585 S.W.2d 160
• Parties: STATE of Missouri, Respondent, v. Leonard A. DONAHUE, Appellant.
• Court: Missouri Court of Appeals

Page 160

585 S.W.2d 160

STATE of Missouri, Respondent, v. Leonard A. DONAHUE, Appellant.

No. 30315.

Missouri Court of Appeals, Western District.

June 29, 1979.

Clifford A. Cohen, Public Defender, Gary L. Gardner and Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.

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

Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.

PRITCHARD, Judge.

Appellant was convicted by the verdict of a jury of the commission of the crime of robbery in the first degree. The trial began on June 7, 1978. Upon a finding that appellant was a second offender, the court sentenced him to ten years imprisonment in the Division of Corrections.

The sufficiency of the evidence is not questioned. It suffices to say that appellant by use of a handgun robbed the victim, Eula Johnson, of her 1977 Thunderbird automobile.

At the outset of the trial, appellant moved to quash the jury panel upon the grounds that Missouri's exemption from jury service granted to women upon their exercise of the option not to serve was unconstitutional because it denied his right to have a jury panel selected from a fair cross-section of the community. This issue was ruled in Duren v. Missouri, 439 U.S. ----, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), which controls the disposition of this case.

Appellant's first point presents the matter contained in his motion to quash the jury panel "insofar as Jackson County's procedure for selection of jury panels allows women an automatic exemption which denies the accused his right to a jury composed of a representative cross-section of society, thus denying appellant his sixth amendment rights." The state counters and says that appellant presented no competent or relevant evidence to support his motion to quash the jury panel, and notes that there was presented to the trial court only a stipulation concerning the composition of the 1976 jury wheel, and a transcript in the case of State v. John Henry Bass, No CR77-1146 in the circuit court of Jackson County, Missouri. (The Bass case was not appealed, but the transcript of the proceedings is filed by reference in several other Duren type cases in this court.)

Both the stipulation for 1976, and the Bass transcript, show a wide percentage discrepancy between the numbers of male and female persons summoned for jury service. Previous cases before this court treat the statistics existing in 1976 as continuing through 1977. The Duren case was handed down January 9, 1979. There are of course no statistics in this case as to the number of women jurors summoned, or who claimed the exemption, for 1978.

In State v. Hawkins, 582 S.W.2d 333 (Mo.App.1979) the cases were noted applying the Duren, supra, rule. Among them are State v. Tate, 582 S.W.2d 329 (Mo.App.1979), which noted that the automatic exemption of women upon request has in the last few years been spread upon the records of many trial courts, this court and the Supreme Court of Missouri, in a number of cases and was well and generally known. In State v. Coleman, 582 S.W.2d 335 (Mo.App.1979), it was held, "These proofs concede, and these precedents decide, that the systematic gender discrimination in Jackson County venires for the year 1976 which prompted reversal in Duren continued into the year 1977 * * *." (Latter emphasis supplied.) In the Hawkins case, supra, the statistics in other cases for 1977 were judicially known, demanding reversal and remand for new trial.

In all of the foregoing cases it is clear that the statistical gender discrimination continued into 1977 because of the method used in venire selection. During 1978, because the method had not been changed, the statistical disproportion of women on juries must have continued. This calls into play a rule of evidence which is applicable here: "Proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within logical limits, that it exists at a subsequent time; and a fact or relation found to exist at different dates may be of such a nature that its continuance during the intervening period may be legally presumed, * * *." 31A C.J.S. Evidence § 124(1), p. 222. See Martin v. Sloan, 377 S.W.2d 252, 256, 257 (Mo.1964). The principle is stated in Wigmore on Evidence, 3rd Ed., § 2530, p. 461, and is expounded at § 383, pp. 321, 322, of that work: "It has already been seen (ante, § 190) that the prior or subsequent existence of a quality or condition is evidential of its existence at a given time. This principle is equally applicable in evidencing a habit or cause (sic, course?) of conduct. Its use is most frequent for facts which can at first sight hardly be ranked here in any natural classification, facts roughly to be described as involving a human status or relation to external affairs; for example, possession,...