State v. Duren

Decision Date27 September 1977
Docket NumberNo. 59914,59914
Citation556 S.W.2d 11
PartiesSTATE of Missouri, Respondent, v. Billy DUREN, Appellant.
CourtMissouri Supreme Court

Lee M. Nation, Kansas City, for appellant.

Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.


Defendant, convicted of murder first degree and assault with intent to kill was sentenced to consecutive terms of life imprisonment. He appealed to the Missouri Court of Appeals, Kansas City district, raising questions of constitutional construction and because those issues fell within the exclusive appellate jurisdiction of the Supreme Court under Art. 5, § 3, Mo.Const. as amended in 1976, the cause was transferred here prior to opinion. Two assignments of error are presented: (1) failure to quash the jury panel because Missouri's jury selection process systematically excludes women, and (2) erroneous joinder and trial of the murder and assault charges. We affirm.

The case arose from defendant's fatal shooting of Carrol Riley and wounding of Lee Kinnison during an attempted robbery at a United States Post Office in Jackson County, Missouri. Riley, attempting to thwart the crime, was shot in the head by defendant who turned and then shot Kinnison, a bystander. Sufficiency of the evidence to support the verdict is not challenged.


Defendant first contends his motion to quash the petit jury panel was erroneously overruled in that Art. I, § 22(b), Mo.Const. 1 and its implementing statute § 494.031(2), RSMo Supp.1975, 2 served to exclude women from the jury in such numbers as to render those sections invalid and destroy the panel's efficacy under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. 3 The Sixth Amendment has recently been interpreted in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), to invalidate constitutional and statutory provisions of Louisiana relative to jury selection procedures. The voided sections were Art. VII, § 41 of the Louisiana Constitution:

"(N)o woman shall be drawn for jury service unless she shall have previously filed with the clerk of the District Court a written declaration of her desire to be subject to such service." (Emphasis supplied.)

and Art. 402, Louisiana Code of Criminal Procedure:

"A woman shall not be selected for jury service unless she has previously filed with the clerk of court of the parish in which she resides a written declaration of her desire to be subject to jury service." (Emphasis supplied.)

Examining those constitutional and statutory provisions the Court stated, "Accepting as we do, however, the view that the Sixth Amendment affords the defendant in a criminal trial the opportunity to have the jury drawn from venires representative of the community, we think it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male" (l. c. 537, 95 S.Ct. l. c. 701). Defendant had moved to quash the petit jury venire of St. Tammany Parish, where he was indicted, and in connection with his motion the following facts were stipulated: (1) 53% of persons eligible for jury service in the parish were women but not more than 10% of the names in the wheel were those of women; (2) during a period 4 months prior and 61/2 months following trial, 1,800 names were drawn to fill parish petit jury venires and of that number only 12 (less than 1%) were female; (3) 175 male but no female names were drawn for jury service in April, 1972 (the month of trial); and (4) the disparity between eligible women and those included in wheel and venire resulted from the operation of the cited constitutional and statutory sections.

The thrust of Taylor is that no longer in criminal cases may women as a class be excluded from jury service or automatically exempted on the basis of sex, if as a consequence, jury venires are almost totally male. The Louisiana automatic exemption found constitutionally infirm required women to come forward and file with the district court clerk written declarations stating their desire or intention to serve as jurors, otherwise their names would not be included. Such affirmative action, not required of Louisiana male citizens, resulted in almost totally male criminal jury venires and the effective exclusion of females.

The Court made clear, however, that "(t)he States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community" (l. c. 538, 95 S.Ct. l. c. 701). 4 Also, while juries must be drawn from a source fairly representative of the community, no requirement was imposed "that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition . . ." (l. c. 538, 95 S.Ct. l. c. 702).

Proper exemptions from jury service are permitted to promote the orderly and efficient operation of overloaded judicial systems. Under § 494.020, RSMo Supp.1975, a number of classes are excluded from jury service. 5 In addition to excluded classes, § 494.031, RSMo Supp.1975, allows others to be excused on timely application to the court; for example, persons over 65 years of age; doctors of medicine, osteopathy, chiropractic and dentistry; clergy; professors and teachers in any school or institution of learning. Also, Art. I, § 22(b) Mo.Const. mandates that the court shall excuse any woman requesting exemption before being sworn, and this provision is implemented by § 494.031(2), RSMo Supp.1975. It is this female privilege to opt for excuse from jury service toward which defendant directs his complaint.

Examining defendant's contention, we first must emphasize that in Missouri, women's rights to serve on juries are fully protected and equal to those of men. Art. I, § 22(b) Mo.Const. provides that "(n)o citizen shall be disqualified from jury service because of sex . . . ." Thus the rights of Missouri's male and female citizens to serve as jurors, without class discrimination, are constitutionally insured. This constitutional guarantee against gender based disqualification is a far cry from equal protection cases cited by defendant, for example, the stigmatized blacks of Georgia whose more than 24 year exclusion from jury service was condemned in Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), and which led to adoption of the "rule of exclusion" in race discrimination cases. Nor does our system discriminate against either sex in the manner the rights of Mexican-Americans to serve on juries were denied by the jury commissioners' conduct in Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). Neither do we have the highly subjective key man jury commissioner scheme of Hernandez, described as "susceptible to abuse" and "purposeful discrimination" in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), nor the non-random culling process by which class designations were emphasized in Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). Castaneda, not decided when this case was argued, and Alexander, not cited by defendant, are illustrative of the elements and problems of proof in equal protection based jury challenges. Finally, our jury selection process is quite dissimilar from the peculiar, "racially" controlled multi-layered Georgia system for school board and jury selection criticized in Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970).

The suspect practices condemned in those cases as denying equal protection because of invidious discrimination are neither condoned nor permissible in the jury selection system of Jackson County. The right of each class (men or women) to serve is equal. While members of either class may for cause shown, request and be granted exemption, in the case of women excuse from duty is more easily obtained, as a bare request suffices. However, the case confronting the Court in Taylor was one in which women as a class were denied such right to serve, absent affirmative action not required of men. For women in Louisiana, jury selection had been aptly described as a "volunteer" system, limited to those who filed declarations and asked to be included in the list. The Court however, recognizing the absence of susceptibility to abuse or purposeful discrimination in the system common to the "equal protection" cases cited above, based its determination not on equal protection considerations but instead on Sixth Amendment provisions for jury trial as that amendment binds the states under the due process clause of the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

The cited Missouri statute, § 494.031, RSMo Supp.1975, and Art. I, § 22(b) of the Constitution are not within the ambit of Taylor for two reasons. First : The Louisiana scheme impaired the right of the affected class. On the other hand, the right of Missouri women to jury service remains inviolate though they enjoy an expanded privilege to seek exemption and both sexes are automatically included in wheel and panels unless affirmative action is taken to be excused. In short, ours is not the automatic gender exclusion invalidated by Taylor, thus the presumption of constitutionality attaching to state procedures has force here. Second : Equally important to the outcome of this case is the fact that the results of Louisiana's jury selection scheme contrast sharply with those of the selection process in this case. Before comparing the results of the two systems, we must first examine the mechanics of the Jackson County process from the proof appearing in the record.

Defendant submitted 1970 ...

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