State v. Grey
| Decision Date | 24 February 1971 |
| Docket Number | No. 50658,50658 |
| Citation | 257 La. 1070,245 So.2d 178 |
| Parties | STATE of Louisiana v. Jesse GREY and Johnny Grey. |
| Court | Louisiana Supreme Court |
George F. Fox, Jr., Lake Providence, for defendants-appellants.
Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Thompson L. Clarke, Dist. Atty., John T. Seale, William B. Ragland, Jr., Asst. Dist. Attys., for plaintiff-appellee.
Jesse Grey and Johnny Grey, brothers, were charged under separate bills of information with the simple burglary of 'Rev. Brown's Store' in Lake Providence, East Carroll Parish, Louisiana, on January 16, 1969. After a joint trial both were found guilty as charged, and each was sentenced to three years in the Louisiana State Penitentiary. They have appealed, relying on seven bills of exception.
Roosevelt Jones, Jr., who had previously pleaded guilty to the same burglary for which the two defendants were on trial, was called as a witness for the State. When he testified that neither of the Grey brothers was present during the burglary, the State sought permission from the court to impeach the witness, alleging surprise as to the testimony. The defense objected and reserved Bill of Exception No. 1 to the overruling of its objection. The State proceeded to elicit a prior inconsistent statement from the witness. R.S. 15:487 provides: 'No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.' R.S. 15:488 reads: "Surprise' in the sense of the last preceding article does not arise out of the mere failure of the witness to testify as expected, but out of his testifying upon some material matter against the party introducing him and in favor of the other side.'
The trial judge concluded that the testimony constituted surprise and that the witness was hostile. The evidence attached to the bill shows that in the impeachment examination the witness admitted he had previously made a contrary statement, in the presence of two law officers, to the assistant district attorney who was prosecuting the case. In the light of the witness's earlier statement that the two Grey boys participated in the burglary with him, his testimony before the jury that they were not present clearly constituted surprise upon a material matter 'against the party intoducing him and in favor of the other side'. State v. Ray and Hayes, No. 50159 on our docket, decided Jan. 18, 1971; State v. Willis, 241 La. 796, 131 So.2d 792; State v. Smith, 193 La. 706, 192 So. 106; State v. Williams, 185 La. 849, 171 So. 52. The judge's ruling was correct.
On cross-examination the assistant district attorney asked one of the defendants whether three named witnesses who had been subpoenaed by the defense had been subpoenaed when the case had been set for trial the previous year. The defense objected, stating that it was not the duty of the accused to summons witnesses and that he could not know who had been subpoenaed. Bill of Exception No. 2 was reserved to the overruling of this objection. The witness apparently did have the requisite knowledge to answer the question, for he stated 'no' categorically in response. Even if the testimony sought were inadmissible for other reasons, its admission did not constitute prejudicial error. On the basis of defendants' objection there is no merit to this bill.
Bill of Exception No. 3 was taken to the overruling of the defendants' motion to quash the general and petit jury venires. The motion alleges that defendants were denied the equal protection of the laws, due process, and the right to trial by an impartial jury, in violation of the Fourteenth Amendment to the United States Constitution and Article 1, Section 2, of the Louisiana Constitution. The deprivation of constitutional rights was alleged to have been accomplished by the systematic exclusion of a large group of Negroes from the general and petit jury venires of East Carroll Parish, or, alternatively, by the systematic inclusion of only a token or minimal number of Negroes on these venires.
Counsel for defendants has established two facts basic for the contentions raised in this bill: About 60 per cent of the population of the parish are Negroes, and of the 325 persons whose names were on the general jury venire 24 per cent were Negroes. From these facts he argues that such a disproportionate percentage of Negroes on the jury list could result only from systematic discrimination against them.
Purposeful discrimination, however, may not be assumed or merely asserted; it must be proved. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In the Swain case the United States Supreme Court affirmed the conviction, by an all-white jury, of a Negro who alleged that he was denied the equal protection of the laws by discriminatory jury selection. The court said that racial discrimination resulting in exclusion from jury service of otherwise qualified groups not only violates our Constitution but is at war with our basic concepts of a democratic society and a representative government; that therefore jurymen should be selected as individuals on the basis of individual qualifications and not as members of a race. It stated: * * *'
In an attempt to prove discrimination the defense called three witnesses: R. R. Underwood, executive director of the East Carroll Community Action Association; Cecil E. Manning, Parish registrar of voters, and General Trass, a Negro member of the jury commission.
Mr. Underwood's testimony dealt with census figures and parish population, broken down into whites and Negroes. The 1960 United States census showed a population of 14,433, of which 61.2 per cent were Negroes. A parish-wide census in 1969 fixed the population at 12,497, of which 58 per cent were Negroes. The witness admitted that his testimony did not show what part of the white or non-white population of the parish met the legal requirements for jury service.
The registrar of voters stated that there were 3132 whites and 410 Negroes registered to vote on the parish rolls, plus 2294 persons listed on the federal registration roll. Of the whites registered on the parish rolls 40 could not read and write, and of the 410 Negroes 34 were illiterate. Race and literacy were not required to be shown for those on the federal list, but it was estimated that approximately 2250 of these were Negroes and 45 white. If these estimates were added to the figures shown by the parish rolls, there would be 3177 whites registered to vote and 2660 Negroes. Mr. Manning stated that 1400 of the persons whose names were on the federal registration list apparently completed and signed their applications, but that the others were seemingly illiterate or at least required assistance in filling out the forms. He said he could not tell how many whites and how many Negroes were qualified for inclusion in the general jury venire.
Defendants' last witness, Jury Commissioner Trass, a Negro, principal of a school in Lake Providence, had been born and reared in East Carroll Parish and had wide acquaintance with and knowledge of its people. The jury commission worked from lists, such as the voters' list, and from names submitted by the commissioners secured through personal knowledge or from police jury members, including the Negro police juror from Ward 7, and other persons. Names were furnished by all of the commissioners. The white commissioners supplied names of both Negroes and whites, and so did Commissioner Trass. The commissioners tried to get names of other Negroes, but those persons so secured were found not to be qualified for one reason or another, generally because they could not read or write. The object of the commission was to form a general venire list which would include persons qualified under the law to serve as jurors. The witness testified: (Emphasis supplied.) The same qualifications were used to test the eligibility of persons of both races, and nothing occurred during the work or deliberations of the commission which...
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