State v. McFarland, No. WD31132.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtWASSERSTROM, C. J., Presiding, and PRITCHARD and KENNEDY, JJ
Citation604 S.W.2d 613
Docket NumberNo. WD31132.
Decision Date15 October 1980
PartiesSTATE of Missouri, Plaintiff-Respondent, v. James McFARLAND, Defendant-Appellant.

604 S.W.2d 613

STATE of Missouri, Plaintiff-Respondent,
v.
James McFARLAND, Defendant-Appellant.

No. WD31132.

Missouri Court of Appeals, Western District.

July 8, 1980.

Motion for Rehearing and/or Transfer Denied July 28, 1980.

Application to Transfer Denied October 15, 1980.


604 S.W.2d 614

Clifford B. Mayberry, Kirksville, for defendant-appellant.

John Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before WASSERSTROM, C. J., Presiding, and PRITCHARD and KENNEDY, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 1980.

WASSERSTROM, Chief Judge.

Defendant appeals from his conviction by a jury of rape by criminally knowing a female under 16 years of age and the consequent sentence of six years in prison.

From the evidence the jury could reasonably have found the following facts. The prosecutrix at the time of the events in question was 15 years old. On the evening of August 17, 1978, Gail Bell, defendant and defendant's brother went to the home of prosecutrix in Kirksville, Missouri. Bell knocked at the front door, asked for prosecutrix and inquired whether she wanted to go out, but prosecutrix declined. While that short conversation occurred, defendant and his brother remained on the sidewalk.

The next evening prosecutrix was home alone. At about 12:15 in the early morning of August 19, defendant returned alone, forced his way into the house and committed forcible rape. Prosecutrix called her mother, who returned home, called the police and took prosecutrix to the hospital. At the hospital an examination was performed which disclosed male semen in prosecutrix's vagina and bruises on her body. Her clothes were torn and seminal stains were also found on her panties.

A complaint was filed February 20, 1979, followed by information and formal arraignment on April 2, 1979. Trial in the circuit court was held May 29 to 31, 1979, and resulted in the conviction from which this appeal is taken.

Defendant's points on appeal may be summarized as follows: (1) that the jury panel was improperly constituted; (2) that the court improperly limited defendant's cross-examination of certain witnesses; (3) that the court erred in overruling an objection to the in-court identification of defendant by prosecutrix; and (4) that the court erred in refusing to give a tendered cautionary instruction with reference to identification testimony.

I.

Preliminary to the trial, defendant filed a motion to quash the jury panel and offered evidence of the following facts. Adair County, in which the trial was held, has a total population of approximately 25,000. There are approximately an additional 6,500 students who attend two colleges within the city, those students being estimated to range in age between 20 to 25 years old. The sheriff of the county estimated that approximately 20% of the jurors during the year preceding trial were under 30 years of age, and he also gave as his opinion that the number of young people on juries was "substantially less" than the population distribution of the county.

Defendant's attorney took the witness stand to testify that during his term as prosecuting attorney, which had been for a period of eight years ending about two years before this trial, he had come to knowledge that the county clerk had discriminated against registering young people by asking them irrelevant questions and, according to some complainants, harassing them while they were trying to register. Jury panels have been selected in Adair County from voter registration lists, and the jury in the present case was so selected from a registry list compiled at a point of time some years previously but not precisely fixed by the evidence.

604 S.W.2d 615

During voir dire, defense counsel inquired as to the age of the jurors, and none was under age thirty. No record count was made of those who answered to being over age sixty; but somewhat later, defense counsel stated that he had counted sixteen, while the prosecuting attorney stated that he had counted only eight to ten. Defendant in this case was twenty years of age at the time of trial.

Defendant contends that the above evidence shows that he was tried by a jury which failed to represent a fair cross section of the community. He claimed that this evidence meets all of the requirements of Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979): that the excluded group constituted a distinctive group in the community; that the representation of this group in venires from which the jury was selected was not fair and reasonable; and that the underrepresentation was due to systematic exclusion. Defendant's argument fails on all three counts.

There is nothing to show that the persons falling within the age group 20 to 25 years have any distinctly different characteristics which would warrant treating them as a separate cognizable category. There is a long and impressive line of cases holding that young people do not constitute a separate cognizable group for purposes of jury representation. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Potter, 552 F.2d 901 (9th Cir. 1977); United States v. Test, 550 F.2d 577 (10th Cir. 1976); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976); United States v. Diggs, 522 F.2d 1310 (D.C. Cir. 1975); United States v. Olson, 473 F.2d 686 (8th Cir. 1973); and cases cited in the foregoing opinions.

With respect to the second Duren test, that is concerning a disproportion of young people in jury venires, defendant has also failed in proof. He has not shown any specifics as to the age distribution of the persons whose names were in the jury wheel from which this jury venire was selected. While there is some (but unsatisfactory) evidence as to the make up of this particular venire, there is no evidence with respect to any others. Defendant's proof therefore is defective for the same reason pointed out in State v. Carter, 572 S.W.2d 430, 434 (Mo. banc 1978) where it was held:

"Defense counsel pointed out the composition of only a single jury panel and petit jury in support of the claim of discrimination. Nothing was offered showing repeated exclusion of an ostensibly neutral selection procedure, nor a procedure under which a subjective evaluation of potential jurors could hide discrimination. There was no proof as to racial composition or of the method of name selection for the `wheel' for the year or other representative period, nor are we told of the selection process or racial composition of the panel by months, weeks or days from which the array presented on the day of trial was selected. From this absence of proof it cannot be said a prima facie case of racial discrimination appears."

In addition it should be pointed out that the sheriff's generalized conclusion, that young people were underrepresented on juries, was at variance with his other estimates. Accepting his population figure of 25,000 and adding to that the student population of 6,500, Adair County has a total population of 31,500. The sheriff estimated that 20% of the jurors were between ages 21 and 30. Twenty per cent of the total population is 6,300, which is almost exactly the total...

To continue reading

Request your trial
5 practice notes
  • Davis v. Jackson, No. 41600.
    • United States
    • Missouri Court of Appeals
    • October 15, 1980
    ...doctrine applied to a case involving a licensee who was injured upon the premises as a result of a defective condition in the absence 604 S.W.2d 613 of some evidence of knowledge of the condition by the landowner. Plaintiffs cite to us numerous cases wherein the Missouri courts have approve......
  • State v. Henry James May, 81-LW-3523
    • United States
    • United States Court of Appeals (Ohio)
    • June 18, 1981
    ...special instructions necessary where charge as given was "clear, comprehensive and correct"); Missouri (State v. McFarland (Mo.App.1980), 604 S.W.2d 613: Telfaire instruction properly refused where such was not among state's existing jury instructions); South Carolina (State v. Robinson (S.......
  • State v. Snider, No. 41317
    • United States
    • Court of Appeal of Missouri (US)
    • May 5, 1981
    ...(Mo.banc 1980); State v. Jones, 607 S.W.2d 740, 742 (Mo.App.1980); State v. Smith, 607 S.W.2d 737, 739 (Mo.App.1980); State v. McFarland, 604 S.W.2d 613, 618-19 Rebecca Johnson, defendant's fiancee, testified as an alibi witness. Defendant's second point of alleged error concerns the follow......
  • State v. Allen, Nos. 59886
    • United States
    • Court of Appeal of Missouri (US)
    • January 19, 1993
    ...a proper cross section was not achieved. The western district of this Court found age is not a cognizable group under State v. McFarland, 604 S.W.2d 613, 615 (Mo.App.1980). [Transfer denied by Supreme Court]. Because this is a necessary element under Castaneda v. Partida, 430 U.S. 482, 494,......
  • Request a trial to view additional results
5 cases
  • Davis v. Jackson, No. 41600.
    • United States
    • Missouri Court of Appeals
    • October 15, 1980
    ...doctrine applied to a case involving a licensee who was injured upon the premises as a result of a defective condition in the absence 604 S.W.2d 613 of some evidence of knowledge of the condition by the landowner. Plaintiffs cite to us numerous cases wherein the Missouri courts have approve......
  • State v. Henry James May, 81-LW-3523
    • United States
    • United States Court of Appeals (Ohio)
    • June 18, 1981
    ...special instructions necessary where charge as given was "clear, comprehensive and correct"); Missouri (State v. McFarland (Mo.App.1980), 604 S.W.2d 613: Telfaire instruction properly refused where such was not among state's existing jury instructions); South Carolina (State v. Robinson (S.......
  • State v. Snider, No. 41317
    • United States
    • Court of Appeal of Missouri (US)
    • May 5, 1981
    ...(Mo.banc 1980); State v. Jones, 607 S.W.2d 740, 742 (Mo.App.1980); State v. Smith, 607 S.W.2d 737, 739 (Mo.App.1980); State v. McFarland, 604 S.W.2d 613, 618-19 Rebecca Johnson, defendant's fiancee, testified as an alibi witness. Defendant's second point of alleged error concerns the follow......
  • State v. Allen, Nos. 59886
    • United States
    • Court of Appeal of Missouri (US)
    • January 19, 1993
    ...a proper cross section was not achieved. The western district of this Court found age is not a cognizable group under State v. McFarland, 604 S.W.2d 613, 615 (Mo.App.1980). [Transfer denied by Supreme Court]. Because this is a necessary element under Castaneda v. Partida, 430 U.S. 482, 494,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT