State v. Jenne

• Decision Date: 05 April 1991
• Docket Number: No. 89-409,89-409
• Citation: 156 Vt. 283,591 A.2d 85
• Parties: STATE of Vermont v. William A. JENNE.
• Court: Vermont Supreme Court

Page 85

591 A.2d 85

156 Vt. 283

STATE of Vermont v. William A. JENNE.

No. 89-409.

Supreme Court of Vermont.

April 5, 1991.

William H. Sorrell, Chittenden County State's Atty., Burlington, and Gary S. Kessler and Rosemary Hull, Dept. of State's Attys., Montpelier, for plaintiff-appellee.

Walter M. Morris, Jr., Defender Gen., and William A. Nelson, Appellate Atty., Montpelier, for defendant-appellant.

Before ALLEN, C.J., GIBSON, DOOLEY and MORSE, JJ., and PECK, J. (Ret.), Specially Assigned.

GIBSON, Justice.

Pursuant to V.R.A.P. 5(b), defendant appeals from the trial court's denial of his motion to dismiss or, in the alternative, to strike the jury panel. We conclude that the jury-selection procedures in Chittenden County do not violate defendant's constitutional or statutory rights, and, accordingly, answer the question certified by the trial court in the negative. ¹

I.

Defendant is charged with causing bodily injury to another with a deadly weapon, in violation of 13 V.S.A. § 1024(a)(2). On April 26, 1989, he filed a pretrial motion to dismiss or, in the alternative, to strike the jury panel on grounds that Chittenden County's jury-selection process violates his rights under (1) the Sixth and Fourteenth Amendments to the United States Constitution, (2) Chapter I, Articles 7, 10 and 12, and Chapter II, §§ 28 and 38 of the Vermont Constitution, and (3) the jury-selection statutes (4 V.S.A. §§ 952-953) and jury-selection rules 1 and 3.

Evidentiary hearings were held on April 28, May 10 and 15, 1989. Based upon the evidence presented, the trial court made the following findings. A pool of 237 potential jurors was generated from voter registration and licensed drivers lists. Defendant's evidence drew statistical comparisons between the pool and Chittenden County's population with regard to age, occupation, marital status, and gender. Data on the jury pool were gathered from the returned juror questionnaires. The general population figures were derived from the 1980 census, updated where appropriate by reliable Department of Health estimates.

With regard to age, the following categories were used: 18 to 24; 25 to 34; 35 to 44; 45 to 54; 55 to 64; and 65 to 69. The trial court found that no significant statistical disparities exist for the age groupings between 25 and 64. Both the top and bottom age categories, however, were found to have sociologically significant statistical disparities: 3.6% of the county's population is in the 65-to-69 category, compared to 8.9% of the pool, an overrepresentation of 5.3%; in contrast, the 18-to-24 age grouping represents 24.1% of the county population, but only 12.7% of the pool, an underrepresentation of 11.4%. Nevertheless, the court concluded that insufficient evidence existed to warrant classifying any of the age categories as distinctive groups within the community.

With regard to occupation, the evidence was incomplete. Only 131 of the 237 people in the jury array reported their occupations in a manner useful to defendant's experts, and those occupations were organized into very broad categories. Significant statistical disparities were nevertheless found in several categories. The managerial and administrative category represents 12.9% of the population, but 21.4% of the pool, an overrepresentation of 8.5%. Machine operators, fabricators, and laborers represent 13.5% of the county population, but 5.3% of the pool, an underrepresentation of 8.2%. The court concluded the disparities were of limited usefulness, however, because of the poor quality of the data and the very broad nature of the occupational categories. With respect to educational attainment, the trial court found no significant statistical disparities.

The trial court found statistical disparities with respect to marital status. Single people represent 33.9% of the population, but only 22.4% of the pool, an underrepresentation of 11.5%. Married people comprise 55.3% of the county population and 68.8% of the panel, an overrepresentation of 13.5%. ² The trial court concluded, on the evidence presented, that these disparities would be sociologically significant only in a few "family-core" types of cases.

Finally, with regard to gender, 51.2% of the county is female, compared to 59.1% of the pool, an overrepresentation of 7.9%. In contrast, 48.8% of the county population is male, whereas 40.5% of the jury array is male, an underrepresentation of 8.3%. The trial court concluded that the statistical disparities for gender are sociologically significant.

Based upon these findings, the trial court held that (1) the proposed categories for age, occupation, and marital status do not constitute "distinctive groups," (2) gender is a "distinctive group," but the disparities were not sufficient to preclude a "fair and reasonable" representation and there was no "systematic exclusion" of males or females from voters or drivers lists, and (3) 4 V.S.A. § 953(a) was not violated because this was the first jury chosen from a new jury pool combining both drivers' license and voter registration lists. The trial court subsequently granted defendant's motion for permission to file an interlocutory appeal, pursuant to V.R.A.P. 5(b).

On appeal, defendant argues (1) that his rights under the Sixth Amendment and the Vermont Constitution to a jury drawn from a fair cross-section of the community are violated by the underrepresentation of young people, blue-collar workers and less-well-educated individuals, single people, and males; (2) that the evidence establishes a failure to take great care to avoid jury partiality, in violation of the Vermont Constitution, Chapter II, § 38; and (3) that the underrepresentation of young people violates his rights under Vermont's jury-selection statutes. ³ We address defendant's arguments seriatim. Initially, however, we must address the propriety of the interlocutory appeal.

II.

The instant case is one of forty-four that were under appeal simultaneously. All of them present the same certified question. On our own motion, we dismissed the other forty-three on grounds that a decision on the question presented would not materially advance termination of the litigation. See V.R.A.P. 5(b)(3). We denied the State's subsequent motion to dismiss this case, however. In its brief, the State renews its argument that interlocutory appeal is inappropriate herein.

Under Rule 5(b), the defendant must show three elements to obtain an interlocutory appeal: (1) the ruling to be appealed must involve a controlling question of law; (2) there must be a substantial ground for difference of opinion on that question of law; and (3) an immediate appeal must materially advance the termination of the litigation.

State v. Wheel, 148 Vt. 439, 440, 535 A.2d 328, 329 (1987). In State v. Pelican, 154 Vt. 496, 580 A.2d 942 (1990), we addressed whether interlocutory appeal of a pretrial challenge to a jury array was appropriate, and when the State failed to brief the issue, concluded that the trial court had not abused its discretion in granting the defendant permission to appeal. Id. at 501-02, 580 A.2d at 946. In the instant case, the State has briefed and argued the issue. Although we question whether any of the three requirements for interlocutory appeal have been established by defendant, this is one of many cases challenging Chittenden County's jury-selection procedures, the merits have been fully briefed and argued, and the relevant facts underlying the appeal are not subject to change at trial. Thus, the dispute will not go away, and it would not serve the interests of judicial economy to dismiss the appeal as improvidently granted, thereby requiring the Court and counsel to prepare for argument again at some future time. See Castle v. Sherburne Corp., 141 Vt. 157, 165, 446 A.2d 350, 354 (1982) (suspending requirements for interlocutory appeal of a discovery order pursuant to V.R.A.P. 2 in interests of judicial economy). We therefore suspend the rule and decline to dismiss the appeal. V.R.A.P. 2; Castle, 141 Vt. at 165, 446 A.2d at 354.

III.

The Sixth Amendment guarantees defendant, through the Fourteenth Amendment, an impartial jury. Pelican, 154 Vt. at 502, 580 A.2d at 946. "[T]he impartial jury requirement is met only when jury venires are drawn from a fair cross section of the community." Id. The jury does not, however, need to be "a statistical mirror of the community." Id. Instead, to establish a prima facie violation of the Sixth Amendment's fair-cross-section requirement, 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.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). In Pelican, we adopted the following three-prong test to determine whether a group is within Duren 's "distinctive" group requirement:

(1) the group must be defined and limited by some clearly identifiable factor (such as race or sex), (2) there must be a common thread or basic similarity in attitude, ideas or experience which runs through members of the group, and (3) there must be a community of interest among the members of the group to the extent that the group's interest cannot be adequately represented if the group is excluded from the jury selection process.

Pelican, 154 Vt. at 503, 580 A.2d at 947. Whether a class or group is "distinct" is a question of fact. Id. We will defer to the trial court's finding unless it is clearly erroneous. See id. at 509, 580 A.2d at 947-48.

Vermont's constitutional guarantee to a fair cross-section, pursuant to Chapter I, Articles 10 and 12, does not, in this case, provide any greater protection than that afforded...