State v. Hunter

• Decision Date: 07 July 1981
• Docket Number: No. WD,WD
• Citation: 619 S.W.2d 883
• Parties: STATE of Missouri, Respondent, v. Jeffrey Daniel HUNTER, Appellant. 31509.
• Court: Missouri Court of Appeals

Page 883

619 S.W.2d 883

STATE of Missouri, Respondent, v. Jeffrey Daniel HUNTER, Appellant.

No. WD 31509.

Missouri Court of Appeals, Western District.

July 7, 1981.

Dick B. Dale, Richmond, for appellant.

John Ashcroft, Atty. Gen., Darrell Panethiere, Asst. Atty. Gen., Kansas City, for respondent.

Before PRITCHARD, P. J., and TURNAGE and CLARK, JJ.

PRITCHARD, Presiding Judge.

Appellant was found guilty of murder in the second degree by the verdict of a jury. In accordance with the verdict, the trial court sentenced him to 15 years imprisonment in the Division of Corrections.

In his first point appellant contends that the trial court erred in denying his pre-trial motion to strike the entire jury panel because its selection and composition did not represent a fair and accurate cross section of the community; it was not representative of appellant's economic and social peers; and appellant was precluded from having a fair and impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution. Appellant states in his brief that he "was tried with a white, middle aged, affluent jury of seven women and five men, which jury was picked from a panel which did not represent the peers of the defendant, a poor, white teenager who was brought to Missouri to pick marijuana."

Before a change of venue was granted to Livingston County appellant filed in Ray County a motion to dismiss the information alleging that Const. Mo. Art. I, § 22(b), and §§ 494.010 and 494.020, RSMo 1978, are unconstitutional and systematically exclude potential jurors without just cause or reason, "in that the same allows women to be excused from juries on request; requires that all jurors be at least 21 years of age; and exempts from jury service certain members of all volunteer fire departments, employees of state eleemosynary institutions, clergymen and ministers, practitioners of medicine, attorneys, clerks, or other officers of courts, ferry keepers, druggists, embalmers, postmasters, road overseers, coroners, millers, professors and teachers, * * * superintendents of county poorhouses, and all persons over the age of 65, * * *." Amplifying the assertion now made as to the jury panel selection and composition, appellant asserted he would be required to be tried before jurors which are more likely to believe the police and prosecution and to be in favor of the death penalty, all in violation of his right to a fair and impartial jury under the Sixth and Fourteenth Amendments of the U. S. Constitution. Further, it was alleged that the selection was not made in accordance with § 494.240, and the selection process utilized underrepresents the poor, black, young, unemployed, minority races, and deprived him of an opportunity to be tried by a fair and impartial jury. Appellant put on no evidence in either Ray or Livingston counties factually to support his allegations. The trial court, however, considered a motion to strike the entire panel, but appellant declined to present any witness or evidence in support thereof. The court found that the normal and additional jury panel of 48 persons was selected in accordance with the statutes by a jury commission, the panel being apportioned according to the 1970 census among various county townships. The wheel, consisting of at least 400 names, was again proportionately obtained throughout the county from the voter registration list. Some prospective jurors were excused on an individual basis, one school teacher was excused, but excuses offered by women were accepted and granted only on the basis of other good cause. The panel did contain people over the age of 21. The motion was denied.

Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), held that jury wheels, pools of names, panels or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof. Following Taylor, in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) (where petitioner's showing was that 54% of the adults in Jackson County, Missouri, were women, and only 14.5% of the weekly vernires during the time in which his jury was chosen were female), the facts were found to violate the "fair cross section" requirement of the Sixth Amendment. Duren set out the standards for establishing a prima facie violation of the fair cross section requirement (439 U.S. 357, 361, 99 S.Ct. 664, 667, 58 L.Ed.2d 579): "(T)he defendant must show (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 this underrepresentation is due to systematic exclusion of the group in the jury-selection process." There is no showing of the percentage of women available for jury service in Livingston County. Note that, according to appellant, the jury was composed of seven women and five men. No statistical showing was made as to any other group which could be excused under § 494.031. In such case, under State v. Carter, 572 S.W.2d 430 (Mo.banc 1978), no prima facie case of violation of the fair cross section rule was made.

As to the requirement of § 494.010 that persons serving on juries be over 21 years of age, it was held in the Carter case, supra, 572 S.W.2d 434 (6), "We reject defendant's claim that § 494.010, RSMo 1969, unconstitutionally excludes those eighteen to twenty-one years of age from jury service under the authority of State ex rel. McNary v. Stussie, 518 S.W.2d 630 (Mo.banc 1974)." No showing was made as to the contention that the jurors selected would be more likely to believe the police and the prosecution. It is mere speculation to suppose that jurors selected would not listen to the evidence and follow the instructions of the court.

§ 494.240 provides that in each county the board of jury commissioners shall select names of not less than 400 persons "by consulting any public records * * *." (Emphasis added.) Appellant contends that Livingston County's use of voter registration records only (as stated by the trial court) was a violation of the statute. "Any" means "one or more", "several", or "an indefinite number". State ex inf. Gentry v. Long-Bell Lumber Co., 321 Mo. 461, 12 S.W.2d 64, 80 (Mo.banc 1928). Appellant has failed to show that the court did not follow the statutory provisions. There is no support in the record for his assertion that poorer persons are less likely to register to vote. He has shown no prejudice. See State v. Johnson, 606 S.W.2d 655, 657 (Mo.1980). The challenge to the selection process of the jury panel is overruled in its entirety.

Appellant next says that the trial court erred in overruling his motion to suppress his statement and admitting it into evidence. He says it was involuntary under the totality of the circumstances. A pre-trial hearing on the motion was had. Appellant had been arrested in Richardson, Texas, on a charge of possession of marijuana on July 24, 1978, but no arraignment was had on that charge. At either 8:00 or 10:00 p. m., of that day, Sheriff Stockton of Ray County and Sheriff Darnell of Lafayette County arrived in Richardson, Texas, with a warrant for appellant's arrest for capital murder, and he was interrogated by the two officers at the police department in Richardson. The warrant was read to appellant, and he was given the Miranda warnings, and executed a "rights form". He stated that he understood the rights, and affirmatively stated that he wanted to talk to the officers. Appellant was questioned by Sheriff Darnell who wrote down in longhand his statement, read it to him and allowed him to read it, after which appellant signed it. Appellant never indicated that he wished to withdraw his waiver of his rights; Darnell did not threaten him in any way and made him no promises. Appellant was not deprived of any food, water or sleep, and ate a sandwich during the interrogation. Darnell explained to appellant that he did not have to talk to them, and that if he ever decided to stop talking to him, he had the right to do so. Appellant was then about 18 years old, and to Darnell he looked like an intelligent young man. Darnell denied that he told appellant that if he did not kill anybody he would not be in any trouble in Missouri, so he had better make a statement to clear it up, and no one told appellant that others of the suspects (two others were in custody in Texas) had implicated him. Appellant had been in custody about 12 hours up to the time the statement was completed. The questioning began about 10:00 p. m., and the statement was completed at about 11:25 p. m.

The burden of proof as to voluntariness, once the confession or statement is challenged, is upon the state, State v. Mitchell, 611 S.W.2d 211, 213 (Mo.banc 1981), and voluntariness must be proved by a preponderance of the evidence, Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). In State v. Murray, 614 S.W.2d 726 (Mo.App.1981), it was held that the state had met its burden of proving voluntariness of the confession because the defendant was informed of his constitutional rights; he was capable of understanding them; and there was no physical force, threats, promises or coercive tactics used to obtain it. There was evidence here, for the trial court to evaluate, of each of these elements. Appellant claims, however, that there was a kind of promise made. At trial, he testified that he made inquiry of Sheriff Darnell: ...