State v. Machia

• Decision Date: 10 August 1979
• Docket Number: No. 422,422
• Citation: 449 A.2d 1043,38 Conn.Supp. 407
• Parties: STATE of Connecticut v. Arnold B. MACHIA.
• Court: Connecticut Superior Court

Page 1043

449 A.2d 1043

38 Conn.Supp. 407

STATE of Connecticut v. Arnold B. MACHIA.

No. 422.

Superior Court of Connecticut Appellate Session.

Argued Dec. 19, 1978.

Decided Aug. 10, 1979.

John R. Williams, New Haven, for appellant (defendant).

Edward J. Leavitt, New Haven, for appellee (state).

DAVID M. SHEA, Associate Justice.

The defendant was found guilty by a jury of the crime of burglary in the third degree in violation of General Statutes § 53a-103. ² In this appeal from the judgment the only error relied upon is the denial by the court of a challenge to the array of jurors which the defendant made before trial. He claims that the system used for selecting the array from which the petit jury for this case was drawn violated his state and federal constitutional right to a trial before a jury chosen from a fair cross-section of the community. In particular, he maintains that the statutory ³ exemption from jury service given to women in certain situations or occupations has continually resulted in a significant underrepresentation of women on the jury. An additional claim is made that the practice followed by the jury commissioners for New Haven County of excluding teachers, students and clergymen from jury service, without their requesting to be excused, also has deprived the defendant of his right to a trial before a jury selected from a fair cross-section.

For the purpose of expeditiously deciding the defendant's challenge to the array it was stipulated that the same evidence which had been presented in another case, ⁴ where a similar challenge had been made to the same array of jurors, would be relied upon. The transcript of that evidence, which was under preparation at the time the present challenge was heard, was never presented to the trial court nor has it been filed in this appeal. Numerous exhibits from the other case were filed and counsel for the defendant orally summarized some of the testimony. The court, nevertheless, ⁵ made a finding substantially as follows: The subject of the defendant's challenge was the list of names submitted by the New Haven County jury commissioners for jury service during the year beginning September 1, 1975. The census data available indicated that 54 percent of the population in New Haven County who had reached the age of twenty-one years ⁶ were women. Of the persons whose names were submitted by the jury committees of each town in the county to the jury commissioners for jury service in accordance with General Statutes § 51-221, 48 percent were women and 52 percent were men. After the jury commissioners had performed their function of erasing the names of those not qualified to serve and enough other names to reduce the total by one-half, as required by § 51-223, the resulting list was composed of 39 percent women and 61 percent men. The jury commissioners accepted for inclusion on their list only 47 percent of the female names in comparison to 70 percent of the male names submitted to them as prospective jurors for the year beginning September 1, 1975. For the preceding year an exhibit introduced in evidence indicated that 41 percent of the female names and 75 percent of the male names were accepted. ⁷

The parties stipulated that it was the policy of the New Haven County jury commissioners in selecting the jury array to exclude all students, teachers, and clergymen on the basis of their occupations. The information concerning occupations was obtained from the responses to the questionnaires which the jury commissioner sent to each person on the list submitted by the jury committee of each town.

It is not entirely self-evident that a man found guilty by a jury should be able to overturn that result upon the ground that the array of jurors at a certain stage of the jury selection procedure included too few women, especially when the jury which decided his case appears to have been comprised of almost twice as many women as men. ⁸ Similarly, the record contains no indication that the defendant was a teacher, student, or clergyman, or that in some manner the defendant was prejudiced by the absence from the jury array of persons in those occupations. Some explanation of where we are and how we got here must be attempted.

The early challenges to jury composition were made by defendants who claimed that the procedure used for selecting grand or petit jurors discriminated against members of their race in violation of the fourteenth amendment guaranty of equal protection of the laws. Neal v. Delaware, 103 U.S. 370, 394, 26 L.Ed. 567 (1880); Strauder v. West Virginia, 100 U.S. 303, 309, 25 L.Ed. 664 (1879); Virginia v. Rives, 100 U.S. 313, 321, 25 L.Ed. 667 (1879). In order to make such a claim it was considered essential that the person asserting the denial of equal protection belong to the excluded class. Fay v. New York, 332 U.S. 261, 287, 67 S.Ct. 1613, 1627, 91 L.Ed. 2043 (1947); Rawlins v. Georgia, 201 U.S. 638, 640, 26 S.Ct. 560, 561, 50 L.Ed. 899 (1906). After it was held in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), that the due process clause of the fourteenth amendment made the right of jury trial in the sixth amendment binding upon the states, the emphasis shifted to the requirement that the jury be selected from a "cross-section of the community," a standard previously established in the federal courts. Ballard v. United States, 329 U.S. 187, 193, 67 S.Ct. 261, 264, 91 L.Ed. 181 (1946); Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946). Since discrimination against any significant group of people would detract from the representative character of the jury array and, presumably, ⁹ would be reflected in the composition of the jury ultimately selected, tainting its sociological purity, it was no longer deemed necessary that the party raising the challenge belong to the class involved. Peters v. Kiff, 407 U.S. 493, 504, 92 S.Ct. 2163, 2169, 33 L.Ed.2d 83 (1972). This rationale for departing from orthodox notions of standing and aggrievement would be incomplete without acknowledging that, in addition to the traditional concern for protection of the rights of the individual litigant, these cases have presented an important vehicle for advancing the rights of various groups which have been the subject of unlawful discrimination. It is clear, therefore, that this defendant may question the composition of the jury array on the ground that women, teachers, students, and clergymen were not fairly represented, although it does not appear that he is a member of any of those groups and there is no reason to suppose that representatives of these groups upon the jury would have been more favorably inclined toward him. Taylor v. Louisiana, 419 U.S. 522, 526, 95 S.Ct. 692, 695, 42 L.Ed.2d 690 (1975).

The American tradition that the jury, as an instrument of public justice, should be truly representative is the basis for the constitutional requirement that the jury array reflect a cross-section of the community from which no cognizable group of citizens has been systematically excluded. Taylor v. Louisiana, supra, 419 U.S. at 527, 95 S.Ct. at 696; State v. Townsend, 167 Conn. 539, 546, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975). The defendant claims to have proved a prima facie case of a violation of this requirement which the state never refuted. "In order to establish a prima facie violation of the fair-cross-section requirement, the 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).

I

With reference to the claim of systematic exclusion of women, it is well established that females constitute a distinctive group entitled to adequate representation on the jury array. Duren v. Missouri, supra; Taylor v. Louisiana, supra, 419 U.S. at 531, 95 S.Ct. at 698. Although there have been skeptics, ¹⁰ highest legal authority has declared that males and females are not fungible as jurors, because women bring a certain "flavor" to the adjudicative process of which no person accused of a crime may be lawfully deprived. Ballard v. United States, 329 U.S. 187, 193-94, 67 S.Ct. 261, 264, 91 L.Ed. 181 (1946).

It is not disputed that the evidence established a difference of 9 percent between the proportion of women on the list of jurors submitted to the jury commissioners and that on the list which was filed with the court for service during the year beginning September 1, 1975. The difference between the list filed with the court and the proportion of women in the population of the county was 15 percent. This greater discrepancy does not concern us directly, because the defendant in this appeal makes no claim of systematic exclusion against the jury committees of the towns, which submitted lists containing only 48 percent women as compared with 54 percent women in the county population. ¹¹ See Newman v. Henderson, 539 F.2d 502, 504-505 (5th Cir. 1976). We are concerned here only with the difference between the representation of women on the town committee lists (48 percent) and on the list eventually submitted to the court by the jury commissioners (39 percent), a total disparity of 9 percent. ¹²

It has never been held that the fair-cross-section requirement has not been fulfilled because the jury array did not precisely mirror the sociological composition of the community. Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759 (1965). Representation of the group or class on the jury array need not be mathematically proportionate but only ...