State v. Gresham, 63483
| Decision Date | 23 August 1982 |
| Docket Number | No. 63483,63483 |
| Citation | 637 S.W.2d 20 |
| Parties | STATE of Missouri, Respondent, v. Mitchell GRESHAM, Appellant. |
| Court | Missouri Supreme Court |
Kenneth A. Wagoner, West Plains, Russell Shultz, Wichita, Kan., for appellant.
John Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant Mitchell Gresham was convicted by a jury of murder in the first degree based on robbery, § 565.003, RSMo 1978, and sentenced to life imprisonment, § 565.008.2, RSMo 1978. Jurisdiction of the appeal is in this Court. Mo.Const. art. V, § 3.
An abbreviated factual statement will suffice as the decisive point on appeal concerns the selection of the jury panel.
On January 2, 1981, appellant and two others robbed a store in Shannon County, Missouri, and during the robbery Thelma Searcy was killed and her husband Benny was shot but recovered. Appellant was charged with capital murder, § 565.001, RSMo 1978, and, as stated, the jury found appellant guilty of murder in the first degree. A change of venue was taken and the cause was tried in the Circuit Court of Pulaski County. The circuit judge of the 37th Circuit, which includes Shannon County, was transferred by this Court's order to the 25th circuit, which includes Pulaski County, for the trial of this case.
The statement of facts set forth in appellant's brief regarding the jury selection issue has been adopted by the respondent with one minor exception that will be noted.
Prior to trial appellant moved to quash the jury panel on the grounds that the Board of Jury Commissioners of Pulaski County (board) did not substantially comply with the statutes applicable to a county of the third class having township organization, and that the selection method utilized deprived appellant of a fair and impartial jury randomly selected contrary to the sixth amendment of the United States Constitution. The governing Missouri statutes are §§ 494.230-.250, RSMo 1978.
Section 494.240, among other things, requires the board of jury commissioners to select not less than four hundred persons having all requisite qualifications of jurors by consulting any public records and to maintain that pool of four hundred persons at all times. These persons must be drawn from a township according to its relative population. In this case when the board selected names to comprise the pool mandated by § 494.240, it did not select or maintain the pool at or above four hundred persons. At the time the instant petit jury was drawn from the pool, there were either 355 or 307 persons in the pool from which forty-eight were drawn that comprised the panel for the instant case. We will assume the pool consisted of 355 persons. 1
No complaint is made with reference to the manner or method that the 355 were selected. It is not contended that the board failed to comply with § 494.240 in the method of selection of the pool. Appellant asserts the failure to maintain a pool of four hundred persons as required by § 494.240 was violative of that statute. Obviously it was violative of § 494.240, but this was not the only violation.
After the pool of potential jurors is in place-here 355 persons-the next step occurs when a panel is selected from the pool as the petit jurors to try cases for the ensuing term of court. On March 16, 1981, forty-eight persons were drawn from the pool of 355 for the next succeeding term of court in Pulaski County which began in May 1981.
Section 494.240 requires the names of the persons in the pool from each township be written on separate slips of paper of the same size and kind and "be placed in a box with a sliding lid to be provided for that purpose and thoroughly mixed." There are six townships in Pulaski County so there should have been six boxes containing the names of the pool members from each township. The way it was actually done was that the names of the pool members were kept in six files according to township. These names were on questionnaires for prospective jurors and each questionnaire contained information about that juror which had been supplied by the prospective juror. The questionnaire was signed by the prospective juror and had been supplied prior to the person's name going into the pool required by § 494.240. Presumably these questionnaires contained the information, at least in part, that was considered by the board when making up or supplementing the pool referred to above.
Again, it is obvious that § 494.240 requiring the names to be placed in a box and thoroughly mixed was not complied with, nor was the clear intent of the statute that the slips of paper contain only the name adhered to. Section 494.250 specifies the method by which the requisite number of jurors to serve for a term of court are to be drawn from the pool. The requisite number is twenty-four regular and twenty-four alternate jurors, for a total of forty-eight.
The manner by which the forty-eight were drawn from the pool of 355 on March 16, 1981, for the May 1981 term is set forth in appellant's brief, which respondent has agreed is correct, as follows:
When the petit jury was selected, Alford Lercher, County Clerk of Pulaski County, was present. The 48 members of the petit jury venire were selected from the questionnaires, which had been placed into folders by township. No jury box was used. If a given number were to be selected from a certain township, then the Circuit Clerk selected that number of questionnaires from the folder for that township. It is unclear whether the questionnaires were face down when the Circuit Clerk selected them. Alford Lercher "couldn't say" on this point. The questionnaires were then passed around, and the jury commissioners decided whether to accept the jurors selected. If the jury commissioners felt that a prospective juror was too likely to convict or too likely to acquit, they would excuse that particular prospective juror. The following excerpt from the testimony of Mr. Lercher, the County Clerk, found at Pages 11 and 12 of the transcript, is informative in this regard:
Q. How are the actual 48 names selected from all those questionnaires?
A. He always starts out with a certain township, if he says "Union Township," we are going to pick so many jurors and so many alternates, then he just takes the list up there and he just reaches in and pulls one out.
Q. Without looking?
A. Without looking, he hands this to the judge, and if he needs five jurors, why he pulls five, and the judge then passes them around, and everybody looks at them and they discuss them, and they read what is on the questionnaire and they discuss whether that person would be able to serve or whether he would be competent, and so on, and they then decide whether they would go ahead and put him on.
Q. Okay now, I believe you mentioned yesterday, that if the person was too old or sick or you know that he is mentally incompetent, that you just put his name back and don't accept it?
A. That's true.
Q. I believe you also indicated that if you know somebody would just assume that somebody was guilty because they were on trial, you would excuse that person also?
A. Well, yes, that is right. Most of us are all around the county and we know the people of our district and we can arrive at the-
Q. You are able to discuss?
A. Discuss the person, that's true.
Q. On the other hand, you indicated that if you know the person would be such that he would turn anybody loose, no matter what, you excuse him?
A. That's true.
As is evidenced by Exhibit G, 48 jurors were selected in the method set forth above. After their selection on March 16, 1981, additional jurors were selected to try the instant case. When the additional jurors were selected, only the Sheriff and the Clerk of the Circuit Court were present. The same basic method of selecting questionnaires from the folders, in which the questionnaires for the various counties were kept, was followed by the Sheriff and the Circuit Clerk when the additional jurors were selected.
After the evidence concerning selection of the jury was introduced, defendant's counsel elucidated the grounds of the written objection, and stated that the grounds included the following: that only 308 names were in the jury pool from which the petit jury was selected, whereas the statute, § 494.230 et seq. R.S.Mo., requires that 400 names be in the jury pool; that there was not a quorum of jury commissioners present when the jurors were selected; and that the commissioners used improper and personal decision-making processes in selecting the jury, based on the mental predisposition of the jurors, which destroyed the randomness of the jury selection process. In addition, defendant's counsel raised the objection, prior to the trial beginning, that the method of jury selection also deprived the defendant of a fair, impartial and random jury, in violation of the United States Constitution.
The trial court sustained in part the defendant's motion to quash the jury panel. The trial court discharged certain named jurors, whose names appear on Page 17 of the transcript. The only jurors who were discharged were those "additional jurors" selected after the initial 48 jurors were selected on March 16, 1981. The sheriff then was ordered to pick up an additional 25 jurors, and the trial was recessed until the following morning.
The respondent's modification as to the facts is that the evidence established that the clerk selected the questionnaire containing the name of a juror from each township group without looking. This modification is accepted by the Court as being supported by the evidence.
The clear import of § 494.240 requiring the names of the pool members be on separate slips of paper of like size and kind, placed in a township box and thoroughly mixed, and the requirement of § 494.250 that directs the clerk of the board to be "so situated as to be unable to see the names on the slips," and "publicly, in the...
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