State v. Lopez

• Decision Date: 26 November 1984
• Docket Number: No. 14251,14251
• Citation: 107 Idaho 726,692 P.2d 370
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Thomas LOPEZ, Guadalupe Lopez, and Julian Lopez, Defendants-Appellants.
• Court: Idaho Court of Appeals

Page 370

692 P.2d 370

107 Idaho 726

STATE of Idaho, Plaintiff-Respondent, v. Thomas LOPEZ, Guadalupe Lopez, and Julian Lopez, Defendants-Appellants.

No. 14251.

Court of Appeals of Idaho.

Nov. 26, 1984.

E.R. Frachiseur, Hicks & Frachiseur, Mountain Home, for defend ants-appellants.

Jim Jones, Atty. Gen., by Lynn E. Thomas, Sol. Gen., and Steven W. Berenter (argued), Deputy Atty. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

This is an appeal by three brothers, Thomas, Guadalupe and Julian Lopez, who stand convicted of burglary. The principal issue is whether the jury that convicted them was drawn from a fair cross section of the community. We also are asked to decide whether the trial court erred by failing to suppress evidence seized during searches of an automobile, by allowing testimony from witnesses whose identities had not been disclosed before trial, and by refusing to dismiss charges after the prosecutor allegedly interfered with trial preparation by the defense. For reasons explained below, we affirm the judgments of conviction.

I

We first examine the jury selection issue. Appellants contend that the selection process was constitutionally infirm because the pool of potential jurors, from which the jury panel was drawn, underrepresented the Hispanic population of Elmore County. Appellants also claim that the selection process violated certain requirements of the Uniform Jury Selection and Service Act, codified at title 2, chapter 2, of the Idaho Code. We will address the constitutional and statutory challenges in turn.

A

The fourteenth amendment to the United States Constitution provides in pertinent part that no state may "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The sixth amendment, made applicable to the states through the due process clause of the fourteenth amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... trial, by an impartial jury...." Similar rights are secured by article 1, § 7, and by article 1, § 13, of the Idaho Constitution. With respect to this appeal, we will treat the state constitutional rights as coextensive with those provided in the federal constitution.

Appellants have based their constitutional challenge broadly upon both the sixth and fourteenth amendments. However, it is unnecessary to apply these amendments separately. The history of constitutional litigation over jury selection reveals that both due process and the right to an impartial jury have evolved toward a common requirement--selection of the jury from a fair cross section of the community. This evolution is illustrated by four landmark cases. In Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), the United States Supreme Court adopted what came to be known as a rule of exclusion, declaring that due process was offended by discrimination in the selection of jurors. The Court held that a prima facie case of such discrimination could be established by showing exclusion of virtually all qualified persons in a substantial segment of the general population, during an extended period of time. In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the Supreme Court intimated that the rule of exclusion might be broadened to embrace underrepresentation. The Court held that due process and the right to an impartial jury were grounded in the "concept of the jury as a cross-section of the community." 315 U.S. at 86, 62 S.Ct. at 472. Three decades later, in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Court explicitly held that both the fourteenth and sixth amendments require a jury to be chosen from a fair cross section of the community. Finally, in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Court explained that a violation of the fair cross section requirement could be established by showing:

(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.

439 U.S. at 364, 99 S.Ct. at 668. The Court noted that "systematic exclusion" means "underrepresentation ... inherent in the particular jury-selection process utilized." 439 U.S. at 366, 99 S.Ct. at 669. When such a prima facie case has been established, the burden is upon the government to show that the disparity is justified by a significant state interest. 439 U.S. at 367-68, 99 S.Ct. at 670.

Accordingly, our inquiry in this case is whether appellants have made a prima facie showing of underrepresentation inherent in the Elmore County jury selection process and, if so, whether the disparity has been justifiably explained by the state. An evidentiary hearing was conducted by the district court. The judge ruled that no prima facie case had been established. However, we are not bound by that determination. Although the district judge is the finder of basic facts, an appellate court must independently decide whether those facts show a violation of the fundamental constitutional rights at issue here. See Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977) (implicitly rejecting suggestion, made in dissent by Justice Stewart, that a trial court finding of failure to make a prima facie case of jury under representativeness should be reviewed under "clear error" standard). Consequently, it is our duty to examine the record in light of the requirements articulated in Duren v. Missouri, supra.

i

The first Duren requirement is to identify a "distinctive group" in the community. Appellants have identified Hispanics as the subject group and have described the group by reference to Spanish-surnamed persons. It is well settled that Hispanic people represent a distinctive group in the population. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). The use of Spanish surnames to identify this group is acceptable. Montoya v. People, 141 Colo. 9, 345 P.2d 1062 (1959). Consequently, the first Duren test is satisfied.

ii

The next test is whether the representation of Hispanics in the jury pool was "fair and reasonable in relation to the number of such persons in the community." Through the laborious and commendable efforts of their counsel, appellants presented substantial evidence on this question. Based upon the most recent census data, they established that the total population of Elmore County was 21,565, of which 1,776 or 8.2% were Hispanic. Appellants also proved that the Elmore County "master jury list," from which the "jury wheel" was derived and from which the panel in this case ultimately was drawn, consisted of 13,204 persons of whom 428 or 3.2% were Hispanic. Some 4,401 names actually were placed in the "jury wheel." Of these, 113 or 2.6% were Hispanic. From this "jury wheel" a quarterly jury list was prepared, comprising 314 persons of whom 11 or 12 (about 3.5%) were Hispanic. The jury panel was drawn from this quarterly list.

These figures demonstrate that the Hispanic percentage was relatively stable as the selection system progressed, by random selection, from the master jury list to the quarterly list. Consequently, appellants have not mounted their constitutional challenge against those stages of the process. Rather, their challenge has been directed at the entry level of the system, where we find the disparity between 8.2% Hispanic representation in the general population and 3.2% representation on the master jury list.

Neither the United States Supreme Court nor the Idaho Supreme Court has adopted a discrete standard for the maximum permissible deviation between representation in the community and representation in the entry-level jury pool. At one time, the United States Supreme Court suggested that "purposeful discrimination" could not be inferred from underrepresentation of ten percent or less. Swain v. Alabama, 380 U.S. 202, 208-09, 85 S.Ct. 824, 829, 13 L.Ed.2d 759 (1965). However, in nearly two decades since Swain, the Supreme Court has not expressly reiterated the ten percent guideline.

Because there is no single, overriding standard, the courts and commentators have developed varying methodologies for evaluating jury representativeness. The simplest approach is to measure the absolute difference between the proportion of the subject group in the general population and its proportion in the jury pool. This approach, known as the absolute disparity standard, lies at the heart of Swain and may be discerned in many other Supreme Court cases. The Court has held absolute disparities sufficient to create inferences of systematic underrepresentation in the following illustrative cases: Duren v. Missouri, supra (group represented 54% of community population but 15% of jury pool); Castaneda v. Partida, supra (79% of community, 39% of jury pool); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (21% of community, 14% of jury pool, but only 7% of panel from which jury was drawn); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 532 (1970) (60% of community, 37% of jury pool); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967) (30.7% of community, 5% of jury pool); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967) (24% of community, 5% of jury pool); and Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) (42.6% of community, 9.1% of grand jury pool and 7.8% of petit jury pool). In each case the absolute disparity was greater than ten percent. Thus, while the ten percent guideline mentioned in Swain has not been explicitly followed, neither has it been repudiated.

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