State v. Parker

• Decision Date: 08 February 1971
• Docket Number: No. 2,No. 55457,55457,2
• Citation: 462 S.W.2d 737
• Parties: STATE of Missouri, Respondent, v. Charles William PARKER, Appellant
• Court: Missouri Supreme Court

Page 737

462 S.W.2d 737

STATE of Missouri, Respondent, v. Charles William PARKER, Appellant.

No. 55457.

Supreme Court of Missouri, Division No. 2.

Feb. 8, 1971.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

Legal Aid and Defender Society of Greater Kansas City, for appellant; Williard B. Bunch, Chief Defender, John J. Cosgrove, Kansas City, Public Defender, of counsel.

STOCKARD, Commissioner.

Appellant, Charles William Parker, was found guilty by a jury in the Circuit Court of Jackson County of robbery in the first degree, and pursuant to § 556.280, RSMo 1969, V.A.M.S., the court assessed the punishment at imprisonment for a term of fifteen years. The facts need not be set forth because the only contention on this appeal pertains to the validity of the procedure for selection of the jury.

Appellant's contention is that § 497.130, RSMo 1969, V.A.M.S., violates the Fifth and Fourteenth Amendments of the Constitution of the United States because it provides 'that petit jurors shall be selected from registered voters only and in the case of women limits their selection to persons who are registered to vote and who had volunteered for jury service.' Appellant further asserts that the procedure established for obtaining jurors 'ignores the constitutional requirement that a jury panel shall be drawn from a cross-section of the community.' community.'

The challenged statute provides that the board of jury supervisors shall obtain from the board of election commissioners a complete list as near as can be by streets and precincts of all of the last available current qualified voters in the county. Provision is then made for the selection from that list of at least 25,000 names from the various precincts which shall comprise the jury list. From this list by use of a 'key number's the prospective jurors are selected. A questionnaire is then sent to the persons selected, which contains this provision applicable to women: 'The Constitution permits women to elect to serve or not to serve as jurywomen. Any woman who elects not to serve will fill out this paragraph and mail this questionnaire to the jury commissioner at once. It will not be necessary to answer the other questions. I elect not to perform jury service.' There is then a place for signature.

It has been held in numerous cases that the use of voter registeration lists as the sole source of obtaining names of prospective jurors is not of itself constitutionally impermissible 'unless this system results in the systematic exclusion of a 'cognizable group or class of qualified citizens. '"' Camp v. United States, 5 Cir., 413 F.2d 419, 421, certiorari denied 396 U.S. 968, 90 S.Ct. 451, 24 L.Ed.2d 434; Grimes v. United States, 5 Cir., 391 F.2d 709, certiorari denied 393 U.S. 825, 89 S.Ct. 87, 21 L.Ed.2d 96; Rabinowitz v. United States, 5 Cir., 366 F.2d 34; United States v. Caci, 2 Cir., 401 F.2d 664, 4 A.L.R. Fed. 864, certiorari denied 394 U.S. 917, 89 S.Ct. 1180, 22 L.Ed.2d 450; United States v. Kelly, 2 Cir., 349 F.2d 720, certiorari denied 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544; United States v. Agueci, 2 Cir., 310 F.2d 817, certiorari denied 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11; Simmons v. United States, 5 Cir., 406 F.2d 456, certiorari denied 395 U.S. 982, 89 S.Ct. 2144, 23 L.Ed.2d 770; United States v. Butera, 1 Cir., 420 F.2d 564; United States v. Dangler, 5 Cir., 422 F.2d 344, 345. It has also been held in numerous cases, as stated in Camp v. United States, supra, 'that those who do not choose to register to vote cannot be considered a 'cognizable group." See Grimes v. United States, supra; United States v. Caci, supra; United States v. Kelly, supra; Gorin v. United States, 1 Cir., 313 F.2d 641, certiorari denied 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052; Chance v. United States, 5 Cir., 322 F.2d 201.

In the consideration of appellant's contention, it is interesting to note that the Jury Selection and Service Act of 1968, 28 U.S.C.A. §§ 1861--1869, pertaining to the selection of juries in federal courts, as stated in Camp v. United States, supra, 'requires the use of voter registration lists under jury plans which are to be (and have been) approved by the Judicial Council and the Chief District Judge of the District. Plans, if approved, may require supplemental sources if needed to assure a fair cross-section of the community. But the principal, if not sole, source is to be voter registration lists for random selection.' In speaking of the above Act, it was said in Simmons v. United States, supra, that it was 'designed to provide impartial jurors,' and also after reviewing the history of the act it was said, "the best thought of all three branches of government points toward voter registration lists as representing 'the best cross-section of the community; indeed, they are probably the most broadly based lists available."'

Other than pointing out that there are citizens in Jackson County who are twenty-one years of age or older who are not registered to vote, appellant does not purport to show that the method provided by § 497.130 for the selection of prospective jurors results in the systematic exclusion of a cognizable group or class of qualified citizens. We find no merit to this contention.

Appellant next asserts that Art. I, § 22(b), Constitution of Missouri, V.A.M.S., which directs that the court shall 'excuse any women who requests exemption (from jury service) before being sworn as a juror,' prevents a jury panel from being drawn from a fair cross-section of the community, and therefore results in 'a denial of appellant's rights as guaranteed by the Fifth and Fourteenth Amendments of the Constitution of the United States.' The answer to this contention is found in Hoyt v. State of Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118.

In that case, the defendant was found guilty of second degree murder. The Florida statute, F.S.A. § 40.01(1), provided that jurors should be taken from the male and female persons of the county who met certain qualifications, 'provided, however, that the name of no female person shall be taken for jury service unless said person has registered with the clerk of the circuit court her desire to be placed on the jury list.' The Supreme Court of Florida held the above statutory provision not to infringe upon any constitutionally protected right. Hoyt v. State, Fla....