State v. Fulton

• Decision Date: 30 January 1991
• Docket Number: No. 90-359,90-359
• Citation: 566 N.E.2d 1195,57 Ohio St.3d 120
• Court: Ohio Supreme Court
• Parties: The STATE of Ohio, Appellee, v. FULTON, Appellant.

Page 120

57 Ohio St.3d 120

566 N.E.2d 1195

The STATE of Ohio, Appellee, v. FULTON, Appellant.

No. 90-359.

Supreme Court of Ohio.

Submitted Oct. 24, 1990.

Decided Jan. 30, 1991.

Syllabus by the Court

1. In order to obtain standing to challenge a grand jury array under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, a defendant must prove the procedure employed in the selection process resulted in a substantial underrepresentation of his or her race or of the identifiable group to which he or she belongs and the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. (Castaneda v. Partida [1977], 430 U.S. 482, 492-494, 97 S.Ct. 1272, 1278-1280, 51 L.Ed.2d 498, applied and followed.)

2. In order to establish a violation of the fair representative cross-section of the community requirement for a petit jury array under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant must prove: (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 juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the representation is due to systematic exclusion of the group in the jury-selection process. (Duren v. Missouri [1979], 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, applied and followed.)

On March 30, 1987, defendant-appellant, Thomas W. Fulton, Jr., was indicted by the Holmes County Grand Jury on several counts including, inter alia, kidnapping, aggravated robbery, grand theft and theft, all containing a firearm specification. On October 19, 1987, Fulton filed a pre-trial motion to dismiss the indictment based on objections to the grand jury and grand jury array. Specifically, Fulton claimed that names were selected from a jury wheel from which members of the Amish faith were systematically excluded in violation of the Ohio Revised Code and the federal Constitution. Furthermore, Fulton alleged that the record keeping by either the court or the jury commissioners was not in conformance with R.C. 2313.12, 2313.16 and 2939.03.

On November 18, 1987 and January 8, 1988, the trial court conducted evidentiary hearings on Fulton's motion. The trial court received testimony from the Jury Commissioners, the Clerk of Courts and the Sheriff of Holmes County. Also, during the January proceeding the trial court heard testimony from two officials of the Old Order Amish church.

On April 13, 1988, the trial court overruled Fulton's motion to dismiss, stating that the jury commissioners were authorized to recognize the beliefs of the Old Order Amish faith and to engage in the practice of excluding members of that faith from the grand jury draw. Moreover, the trial court determined that "[i]t would be an exercise in futility to require a member of the Amish faith to appear for jury duty when it is commonly known that such person would object to being seated and would not consent to perform the functions of a juror as required by law if he or she were so seated. * * * "

On August 15, 1988 and September 27, 1988, Fulton brought a challenge to the petit jury array pursuant to Crim.R. 24(E). In his challenge Fulton alleged that members of the Amish faith were systematically excluded in violation of the Ohio Revised Code and the federal Constitution. Moreover, it was alleged that no records were kept and filed with the jury commissioners of the persons excused as required by R.C. 2313.12 and 2313.16. A hearing was conducted on October 7, 1988 and evidence was received concerning the petit jury challenge. On December 2, 1988, the trial court overruled Fulton's challenge to the petit jury array, and stated that its reasons for excusing members of the Old Order Amish religious faith were articulated in its prior April 13, 1988 opinion. Additionally, and more important, the trial court noted in a December 5, 1988 hearing conducted in chambers that certain jurors identified as belonging to the Old Order Amish religious faith requested to be excused from petit jury service.

On December 7, 1988, the jury found Fulton guilty of aggravated robbery, two counts of kidnapping, theft of firearms, and theft, all with specifications. Further, Fulton was convicted of a firearm specification as to each count. Subsequently, the trial court denied Fulton's motion for a new trial.

The court of appeals affirmed the judgment of the trial court, holding, inter alia, that the record was devoid of evidence that Fulton was prejudiced by the jury commissioners' failure to follow the requirements of R.C. 2313.01 et seq. The court found that Fulton received a jury from a fair cross-section of the community. Furthermore, Fulton lacked standing to challenge the grand jury array, since he is not a member of the Amish faith.

The cause is before this court pursuant to the allowance of a motion for leave to appeal.

Richard R. Benson, Jr., Sp. Pros. Atty., for appellee.

Richard B. Hauser, Willard, for appellant.

HOLMES, Justice.

In his three propositions of law, appellant claims that the Holmes County Jury Commissioners systematically excluded potential grand jurors and petit jurors from the jury array on the basis of their Amish religious beliefs, thereby depriving appellant of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and under R.C. Chapter 2313. For the reasons which follow, we find appellant's arguments lack merit.

As a threshold to our inquiry we shall set forth the constitutional distinctions which have been recognized when examining the grand jury versus the petit jury selection process. With respect to the federal constitutional rights afforded state defendants who challenge grand jury arrays, the United States Supreme Court has decided that defendants may assert violations of their rights only under the Equal Protection Clause of the Fourteenth Amendment. See Castaneda v. Partida (1977), 430 U.S. 482, 492-494, 97 S.Ct. 1272, 1278-1280, 51 L.Ed.2d 498; Rose v. Mitchell (1979), 443 U.S. 545, 551-558, 99 S.Ct. 2993, 2997-3001, 61 L.Ed.2d 739. ¹

The elements of an equal protection challenge to a grand jury array were set forth in Castaneda, which provides:

" * * * [I]n order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. * * * Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. * * * This method of proof, sometimes called the 'rule of exclusion,' has been held to be available as a method of proving discrimination in jury selection against a delineated class. * * * Finally, * * * a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. * * * Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case." (Citations omitted.) Id. 430 U.S. at 494-495, 97 S.Ct. at 1280-1281; see, generally, Strauder v. West Virginia (1880), 100 U.S. 303, 25 L.Ed. 664 (a criminal conviction of a black could not stand under the Equal Protection Clause of the Fourteenth Amendment since it was based on an indictment of a grand jury from which blacks were excluded by reason of their race); Virginia v. Rives (1880), 100 U.S. 313, 25 L.Ed. 667 (a defendant may challenge the composition of a grand jury which purposely excludes members of his own race, but he may not assert that he has a right to a certain number of such persons to be included in the grand jury venire under the Equal Protection Clause of the Fourteenth Amendment); Neal v. Delaware (1881), 103 U.S. 370, 26 L.Ed. 567; Aldridge v. Marshall (C.A.6, 1985), 765 F.2d 63, certiorari denied (1986), 474 U.S. 1062, 106 S.Ct. 810, 88 L.Ed.2d 785; Ford v. Seabold (C.A.6, 1988), 841 F.2d 677, 687-689.

Thus, in order for a defendant to be afforded standing to bring an equal protection challenge under the Fourteenth Amendment the defendant must show that the procedure employed in the grand jury selection process resulted in the substantial underrepresentation of his or her race or of the identifiable group to which he or she belongs (e.g., members of the Amish religious faith).

In the context of petit jury selections, the United States Supreme Court has held that the Sixth Amendment's provision for a jury trial is binding on the states by virtue of the Fourteenth Amendment. Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. In Taylor v. Louisiana (1975), 419 U.S. 522, 528, 95 S.Ct. 692, 696, 42 L.Ed.2d 690, the Supreme Court stated 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. * * * " ² In Duren v. Missouri (1979), 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579, the Supreme Court examined the issue of automatic exemptions from jury service granted for women at their request. The Duren court struck down the exemptions and set forth the following prerequisites that a defendant must satisfy in order to establish a prima facie violation of Taylor's fair cross-section requirement:

" * * * [T]he defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the...