State v. Mears, 10915

• Decision Date: 03 October 1979
• Docket Number: No. 10915,10915
• Citation: 588 S.W.2d 519
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ronald Eugene MEARS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 519

588 S.W.2d 519

STATE of Missouri, Plaintiff-Respondent, v. Ronald Eugene MEARS, Defendant-Appellant.

No. 10915.

Missouri Court of Appeals, Southern District, En Banc.

Oct. 3, 1979.

John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Harry Rupert Stafford, Jr., Hartville, for defendant-appellant.

BILLINGS, Judge.

Defendant Ronald Eugene Mears was jury-tried and convicted in Ozark County of stealing neat cattle, a Hereford calf, in violation of § 560.156, RSMo 1969, and sentenced to three years imprisonment. We affirm.

There was ample evidence presented by the prosecution from which the jury could find that defendant and his brother killed and butchered a calf on the Freeman farm near Dora, Missouri, and absconded with the meat. No evidence was offered by the defendant.

Defendant's principal point is directed to the make-up of the jury that convicted him. On the morning of trial he moved to quash the venire, stating that "the discrimination against women on the venire does not represent an accurate representation of the population of the county." No evidence was offered in support of the oral motion and it was overruled. Here, defendant alleges the court's ruling on his motion to quash denied him due process under the Fourteenth Amendment of the United States Constitution and Article I, Section 10, of the Missouri Constitution because no women were members of the venire and thus it failed to represent a reasonable cross section of the population of Ozark County.

Constitutional challenges to alleged discriminatory jury selection usually seek to invoke the Sixth Amendment trial by jury right which includes the right to a jury selected from a fair cross section of the community (Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)), the Due Process Clause of the Fourteenth Amendment (Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972)), or the Equal Protection Clause of the Fourteenth Amendment (Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972)). Because defendant herein deems Duren to be the authority for his challenge to the exclusion of women from the jury venire in Ozark County, we conclude he is claiming a violation of his Sixth Amendment right to a jury selected from a fair cross section of the community. ¹

Division Three of this Court recently considered the "fair cross section of the community" requirement of the Sixth Amendment in State v. Montjoy, 587 S.W.2d 624 (Mo.App.1979). In rejecting defendant's contention, the Court, speaking through Hogan, J., said:

" . . . There is no doubt that such right inheres in the Sixth Amendment, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), nor is there any question that the 'fair cross section' requirement is applicable to the states Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), but defendant mistakes the nature of the right he claims was violated. The fair cross section requirement is not directed to the composition of a particular array or poll, Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759, 766 (1965); it is directed to the method of selecting potential jurors from the members of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 668 and n. 20, 58 L.Ed.2d 579, 586-587 and n. 20 (1979). In Duren, the court held that a criminal defendant claiming violation of the fair cross section principle has the burden to prove: (1) that the group allegedly 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."

In Montjoy, defendant's contention was denied because the record did not show systematic exclusion of any "distinctive" group (Blacks) from the venires summoned in Scott County, Missouri.

Here, in his brief, the defendant asserts the Ozark County venire did not contain any women; that although the summons to the jury contained the names of some women, none appeared in the venire on the day of defendant's trial. There is no evidence in the record before us to support prongs (2) and (3) of the Duren test. Assertions set forth in defendant's brief, without evidentiary support, are not sufficient. ²

In Duren there was evidence of the jury-selection process in Jackson County, Missouri, which lead the court to conclude that there had been a systematic exclusion of women in jury venires. Duren, laboriously reviewed the Jackson County procedure, noting: the annual questionnaire to persons randomly selected from voter registration lists contained a paragraph (described as "prominent") which advised women they could elect not to serve; the summons to prospective jurors told women to return the summons if they did not desire to serve; and women who did not return the...