State v. Martinez

• Decision Date: 20 April 1977
• Docket Number: No. 40897,40897
• Citation: 252 N.W.2d 630,198 Neb. 347
• Parties: STATE of Nebraska, Appellee and Cross-Appellant, v. Larry J. MARTINEZ, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 630

252 N.W.2d 630

198 Neb. 347

STATE of Nebraska, Appellee and Cross-Appellant, v. Larry J. MARTINEZ, Appellant and Cross-Appellee.

No. 40897.

Supreme Court of Nebraska.

April 20, 1977.

Syllabus by the Court

1. A prima facie case of discrimination in jury selection can be established upon demonstration that a significant disparity exists between the percentage of a particular minority chosen for jury duty and the percentage of that minority available in the population from which the jurors are drawn.

2. The Nebraska system of selecting jurors is clearly within constitutional limits.

3. A motion to suppress can only be urged by one whose Fourth Amendment rights were violated and not by one aggrieved solely by the introduction of the incriminating evidence.

4. It is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constituent elements of the crime with which the accused is charged even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes.

5. Because of the provisions of section 29-2315.01, R.R.S.1943, the State cannot cross-appeal from an order granting the defendant a new trial in a criminal case.

6. A sentence, in the absence of an abuse of discretion, will not be disturbed on appeal if it is within the range of the statutory penalties.

David M. Geier of Bauer, Galter & Geier, Lincoln, for appellant and cross-appellee.

Paul L. Douglas, Atty. Gen., Robert F. Bartle, Asst. Atty. Gen., Lincoln, for appellee cross-appellant.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

WHITE, C. THOMAS, Justice.

After trial to a jury the defendant was found guilty on three counts, two counts of assault with intent to commit great bodily injury and one count of robbery. The trial court granted a new trial on the robbery count and overruled the motion for new trial on the conviction of the other two counts. The defendant was sentenced to terms of 2 to 5 years to be served consecutively. The defendant appeals and the State cross-appeals.

Defendant assigns three errors: (1) That the trial court erred in failing to sustain the defendant's motions attacking the method of selection and composition of the jury; (2) the trial court erred in failing to grant the defendant's motion for new trial on the two counts of assault with intent to inflict great bodily harm; and (3) that the sentences are excessive. The State cross-appeals asserting here that the trial court erred in granting the motion for new trial on the robbery count.

We shall take the defendant's errors in order. In his motion for an order dismissing the case or, in the alternative, dismissing the prospective panel of jurors, the defendant alleged that no persons of American Indian descent were included in the panel, that the panel did not evidence a reasonable cross-section of the community, that the panel was not selected in a manner reasonably calculated to encompass a reasonable cross-section of the community, and that the panel was in violation of the defendant's rights guaranteed him under the Sixth Amendment of the Constitution of the United States. The defendant, in support of his contention, introduced evidence that the 1970 census showed approximately 750 Indians living in Lancaster County. That total could be possibly as large as 1,000 Indians at any one time. The 1970 census shows Lancaster County to have a total population of 167,972. The Indian population of Lancaster County then was approximately one-third of one percent of the total population of the county. To support his contention that no American Indian had been summoned for jury duty in the last 18 years, the defendant relied on the testimony of the jury commissioner who stated that he personally could not recall any Indian serving on a jury during his tenure but "There would be a lot of people that might be Indians that I wouldn't recognize as Indian, * * *." The jury commissioner also testified that surnames are an unreliable indicator of Indian heritage and that he was familiar with Indian families with names like Sheridan and Phillips while he also knew non-Indian people of the same name. An indication of the difficulty of ascertaining the heritage by surnames is the disclosure by the voir dire that a Mrs. Smith, a prospective juror, disclosed that she had Indian blood.

A prima facie case of discrimination in jury selection can be established upon demonstration that a significant disparity exists between the percentage of a particular minority chosen for jury duty and the percentage of that minority available in the population from which the jurors are drawn. See Gibson v. Blair, 467 F.2d 842 (5th Cir., 1972). For example, in Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), proof that a substantial segment of the population was of negroid descent, coupled with proof that no black American, although several were qualified, was ever called for jury service over an extended period of time, was held to constitute a prima facie case of systematic exclusion of a distinct minority from jury service.

The cases cited by the defendant in support of his contention that he has shown a prima facie case of systematic exclusion of American Indians from jury service in Lancaster County, Nebraska, are not at all similar to the facts in the current case. In Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947), evidence was introduced that for 30 years no Negro had sat on a jury in the county even though the county's population was about one-third Negro. In Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), 6.75 percent of the persons on the jury lists were Negro even though 21.06 percent of the total population from which the jurors were drawn was Negro. The failure of the State of Nebraska to be able to demonstrate that a population group consisting of less than one-third of one percent of the total population to have been called for jury duty even over an extended period of time is not sufficient evidence to raise a prima facie case of discrimination.

This court has previously approved of the statutory method of jury selection from voter registration lists. See State v. Gutierrez, 187 Neb. 383, 191 N.W.2d 164 (1971). As shown by that opinion, Nebraska's jury selection process is racially neutral. Because members of minorities are not identified, Nebraska's jury selection process does not encounter the problems as did the jury selection processes in Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953), where Negroes were identified by colored cards; or in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), where the letter "(c)" was placed after the names of Negroes. While some Indians may be easily identifiable by their surnames, many have names which are not obviously Indian. That fact fails to separate Indians from other ethnic groups. The defendant has failed to show evidence creating a presumption of discrimination. We find the assignment of error to be without merit.

The evidence shows that on November 29, 1974, the defendant and two other persons, Garrett Wounded Head and Laurence V Redshirt, spent the evening in taverns in Lincoln, Nebraska. The defendant and the two other individuals were American Indians and were residing at the barracks at the Lincoln Air Park because of their connection to the defense of the Wounded Knee cases. At about 1:30 a.m. on November 30, 1974, the parties left a tavern to attend a party given by other Indians in the vicinity of the residence of the complaining witness, Michael J. Williamson, at 614 New Hampshire Street, Lincoln, Nebraska. When the defendant and his two companions arrived, the Indian party had not yet started. Their attention was directed to a party being held by Williamson at the above address. Among those at the party was a recent acquaintance of Williamson, Leland E. Carmichael, also a complaining witness. The defendant and his two companions peacefully gained entrance to the Williamson...