State v. Marshall

• Decision Date: 09 May 1995
• Docket Number: No. 940268,940268
• Citation: 531 N.W.2d 284
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Floyd Solomon MARSHALL, Sr., Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 284

531 N.W.2d 284

STATE of North Dakota, Plaintiff and Appellee, v. Floyd Solomon MARSHALL, Sr., Defendant and Appellant.

Crim. No. 940268.

Supreme Court of North Dakota.

May 9, 1995.

Constance L. Cleveland (argued), Asst. State's Atty., Fargo, for plaintiff and appellee.

Johnson Law Office, Fargo, for defendant and appellant; argued by Alisha Ankers.

MESCHKE, Justice.

Floyd Solomon Marshall appealed from his jury conviction of accomplice to burglary. We affirm.

Officer McDonald of the North Dakota State University Police Department was on patrol in Fargo in the early morning hours of November 7, 1993. He saw a car with its lights off in the G. Wilikers restaurant parking lot. McDonald drove by again, and saw Marshall in the car and Todd Edmond Cody near the restaurant's drive-up window. When they began to leave with their headlights off, McDonald stopped them, questioned them, and called other police for assistance.

The police discovered the restaurant's drive-up window ajar. They found pry bars, gloves, and cash within ten dollars of that stolen from the restaurant in Marshall's car. Police arrested Cody and Marshall for the burglary.

Marshall told police he had seen another nearby car that must have carried the actual burglars away. Marshall insisted that the cash in his car was from his vending machines at another place, and denied that Cody broke into the restaurant. Cody made no statement to the police.

Later, Cody pled guilty to burglary and agreed to testify against Marshall in return for a deferred sentence. Marshall was charged with violating NDCC 12.1-22-02 and 12.1-03-01 as an accomplice to burglary. Marshall pled innocent and went to trial.

At trial, Cody testified Marshall was instructing him how to burglarize businesses, and that they did the restaurant together. Since Marshall was too big to go in the window, Cody broke in, pried open a cash register, and took the money to split with Marshall. Officers testified that the car Marshall claimed he saw nearby turned out to belong to an elderly couple gone from Fargo since 1985. The vending machines that Marshall claimed the money came from were actually owned by a charitable organization, not him.

While Marshall testified he didn't make any statements to police and denied complicity in the burglary, the jury convicted him. The trial court sentenced Marshall to eight years in prison plus two years on probation. Marshall appeals.

Marshall contends that the jury selection process in North Dakota is unconstitutional, he was denied an impartial jury by a "racist" instruction, and the evidence was insufficient to convict him. He asserts "North Dakota's jury selection process is based upon a system whereby many individuals of minority races are excluded" and claims this system unconstitutionally denies him and other minorities an impartial jury venire. Marshall asserts a jury instruction to consider the "appearance" of witnesses told "the jury to make their decision based upon ... race" since "[t]he only minority in the courtroom during the trial was [Marshall], who is a very dark complected African-American." Finally, Marshall asserts the evidence was insufficient because he "was found guilty based upon the uncorroborated testimony of Todd Cody, who, for all practical purposes, was an accomplice in that he pled guilty to burglary, and in doing so, admitted that he was the individual to commit the crime." We are unconvinced.

I

Marshall argues North Dakota's jury selection process denies racial minorities fair representation in the jury pool. Therefore, Marshall claims he was "discriminated against since ... convicted [by] an all white jury."

A state would deny an accused member of a racial minority equal protection of the laws if it purposely excluded members of the accused's race from the jury for his criminal trial. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). "As long ago as Strauder ..., the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror." Batson v. Kentucky, 476 U.S. 79, 87, 106 S.Ct. 1712, 1718, 90 L.Ed.2d 69 (1986). But there is no evidence of any purposeful exclusion in this case.

Jury selection in North Dakota is governed by NDCC Chapter 27-09.1, the Uniform Jury Selection and Service Act. It directs: "A citizen may not be excluded from jury service in this state on account of race, color, religion, sex, national origin, physical disability, or economic status." NDCC 27-09.1-02. In State v. Manhattan, 453 N.W.2d 758, 759 (N.D.1990), we rejected a similar unsupported claim that "the State 'deliberately denied Negroes as jurors,' " and we ruled this statute was neutral on its face.

More recently, this court again assessed the operation of the Uniform Jury Selection and Service Act and held "bare assertions, standing alone, are insufficient to show an underrepresentation of a distinct group." State v. Fredericks, 507 N.W.2d 61, 65 (N.D.1993). There, citing the tripartite test designed in Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979), we explained that, to show a facial violation of the Sixth Amendment right to a jury from a fair cross-section of the population,

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.

Fredericks, 507 N.W.2d at 65. The accused must make a facial showing before the burden shifts to the state to prove the selection process did not systematically discriminate against a distinctive racial group. Id.

Here, Marshall meets the first part of the test, but failed to meet the second and third parts. As in Fredericks, Marshall merely asserts percentages from recent census data to show that there were 280 blacks among 102,874 people in Cass County but, without any record support, claims there were "no blacks in the jury pool." From the census data, the potential representation of black people on his venire in relation to the population drawn from would have been very low, only one in 367. Marshall simply asserts that jury source lists other than voters and licensed drivers, like phone books, would have been more representative and increased the very slight chance of having a black person selected for this venire and jury. As in Fredericks, these "unsubstantiated assertions" are insufficient to show underrepresentation or systematic exclusion of a minority group from jury selection.

We conclude the current jury selection process is constitutionally administered.

II

At the opening of the trial, the trial court instructed the jury about credibility of witnesses:

In considering the weight and value of the testimony of any witness, you may take into consideration the appearance, attitude, and behavior of the witness, the interest of the witness in the outcome of the suit, the relation of the witness to the parties, the inclination of the witness to speak truthfully or not, the probability or improbability of the witness's statements, and all other facts and circumstances in evidence. Thus, you may give the testimony of any witness just such weight and value as you may believe the testimony of such witness is entitled to receive.

(Emphasis added). "Appearance" was also mentioned with "manner" in the court's final written instructions on "weight and credibility." Marshall argues the word "a...