State v. Pelican

• Decision Date: 29 June 1990
• Docket Number: No. 89-260,89-260
• Parties: STATE of Vermont v. Terrance L. PELICAN.
• Court: Vermont Supreme Court

Page 942

580 A.2d 942

154 Vt. 496

STATE of Vermont v. Terrance L. PELICAN.

No. 89-260.

Supreme Court of Vermont.

June 29, 1990.

Howard E. Van Benthuyson, Franklin County State's Atty., and Jo-Ann Gross, Deputy State's Atty., St. Albans, for plaintiff-appellee.

Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

DOOLEY, Justice.

This is an interlocutory appeal, pursuant to V.R.A.P. 5(b), from an order of the district court denying defendant's motion to strike the jury panel. We affirm.

I.

Defendant is charged with second degree murder. On March 24, 1989, defendant filed a pretrial motion to strike the jury panel, arguing that the jury selection procedures in Franklin County result in jury venires which substantially misrepresent the community in terms of age, occupation and economic status in violation of his constitutional and statutory rights. Three witnesses testified at the evidentiary hearing on the motion. The first witness, the County Clerk of the Franklin Superior Court and member of the Franklin County Jury Commission, described the jury selection process in Franklin County. The second witness was qualified as an expert in the field of data analysis. He compared certain characteristics of a group of 320 potential jurors with the characteristics of the Franklin County population as a whole. The final witness was qualified as an expert in the field of sociology, and he testified to the social significance of this comparison.

Based upon the testimony of these three witnesses, the court made the following findings. The Franklin County Jury Commission (Commission) composes a "Master List" of 1500 names of potential jurors who are randomly drawn from the voter registration lists of towns within the county and a list of residents over eighteen years old with a driver's license. The Master List provides the names of potential jury panels and is updated every two years. One thousand names are selected from the voter list (which contains approximately 22,000 names), and the remaining five hundred are selected from the license list (which contains approximately 21,000 names). The names of potential jurors for the Master List were selected in accordance with the Rules of the Court Administrator entitled Rules Governing Qualification, List, Selection and Summoning of All Jurors (hereinafter, Rules). Once the Master List of 1500 names was complete, the Commission assigned a number to each name. Tags were marked with these numbers and deposited in a rotating canister called a "wheel." When the Franklin District Court requested jurors, the Commission would draw at random 200 to 250 tags from the wheel in order to extract a pool of 150 qualified jurors. Once the tags were pulled and matched with the corresponding names, those people were sent jury questionnaires. In response to its requests, the Franklin District Court Clerk received a list of 142 qualified jurors in July of 1988 and a list of 147 qualified jurors in January of 1989. These two pools were the source from which defendant's jury panel was to be drawn.

Defendant's data-analysis expert examined 320 jury questionnaires to determine the composition of the jury pool. He analyzed the pool and the population of Franklin County with respect to age, gender, marital status, occupational status and educational attainment. No significant statistical disparities were found with respect to gender, marital status, education and occupation. Only 240 questionnaires contained information relating to the age of the potential juror, and they revealed the following. In the age group of 18-to-20-year-olds, .5% (one juror was age 20) of the jury pool was in that group as compared to an estimated 7% of the community in that group. In the age group of 18-to-24-year-olds, there were 6.2% in the pool and an estimated 16% of that age group in the community. Finally, in the age group of 45 to 54, 24.2% of the jury pool were in that age group as compared to 14.9% in the community.

Based on the testimony, the trial court found that persons aged 18 to 24 are a distinctive group because "their attitudes are different from those in other age groups and they behave differently than other age groups in the areas of fertility, crime and delinquency." The court also found that the age group of 18-to-20-year-olds is a distinctive age group because "their attitudes are different from other age groups in part as a result of laws which apply to their age group and not others." The court found, however, that the 45-to-54-year-old age group was not a sociologically distinct category of persons.

The court then went on to examine the specific claim with respect to the groups. It found that while voter registration lists significantly underrepresent young people, adding the driver's license list as a source of prospective jurors increases the chance of young people being selected to serve. The court found no evidence that any person qualified to vote was prevented or discouraged from registering to vote in Franklin County. Nor was there any evidence that any qualified person was prevented or discouraged from receiving a driver's license. Nevertheless, the court found that because one must be at least eighteen years old to be eligible to be placed on the Master List, the selection process systematically excluded people who are eighteen and nineteen years of age because the Master List was updated only every two years.

Based upon these findings, the court concluded that defendant failed to meet his burden of proof to establish a violation of his Sixth Amendment right to a jury drawn from a fair cross section of the community. The court concluded that for either 18-to-20-year-olds or 18-to-24-year-olds, defendant failed to establish that members of the group were not fairly and reasonably represented in the jury pool. The court reached this conclusion based on the absolute disparity between the incidence of members of the group in the community and the incidence in the pool. In addition, the court concluded that defendant did not show that there is a difference between his Sixth Amendment right to an impartial jury and his right under the Vermont Constitution to a fair and democratic jury. The court also held that defendant failed to establish a violation of his right to equal protection under the Fourteenth Amendment of the United States Constitution and Chapter I, Article 7 of the Vermont Constitution, because he did not prove that there was substantial under- or overrepresentation or that any of the groups were intentionally or purposefully discriminated against. Finally, the court concluded that defendant's statutory claims were without merit because he failed to demonstrate that the Master List was unrepresentative of the community. On May 16, 1989, the court granted defendant's motion for an interlocutory appeal under V.R.A.P. 5(b).

Defendant's appeal is limited to the issue of age bias in the jury selection process. He argues that his showing of a substantial underrepresentation of young people on Franklin County jury venires made out a prima facie violation of his right to a representative jury as guaranteed by the Vermont Constitution, by Vermont's jury selection statutes, and by the Sixth and Fourteenth Amendments to the Federal Constitution.

II.

Before we address defendant's arguments, we must be satisfied that this is a proper case for interlocutory review. Under Appellate Rule 5(b)(1), the trial judge may permit an interlocutory appeal if the defendant establishes three elements: "(1) the ruling to be appealed must involve a controlling question of law; (2) there must be a substantial ground for difference of opinion on that question of law; and (3) an immediate appeal must materially advance the termination of the litigation." State v. Wheel, 148 Vt. 439, 440, 535 A.2d 328, 329 (1987). Upon our own motion, this Court may review the trial court's decision to grant permission for an interlocutory appeal, and if we find that any of these three elements have not been met, we may dismiss the appeal. V.R.A.P. 5(b)(3). Because we were concerned that this appeal may not have been properly granted, we requested by entry order that defendant's brief "include a discussion concerning the appropriateness of interlocutory review," and that the State respond to such points in its brief. The State, however, failed to respond to defendant's arguments on this issue. In the absence of a response by the State, and in light of the discretion we accord to trial court decisions on interlocutory appeal motions, State v. McCann, 149 Vt. 147, 151, 541 A.2d 75, 77 (1987), we conclude that the elements for an interlocutory appeal have been established and permission to appeal was properly granted.

III.

We address first the Sixth Amendment argument because it provides a useful framework with which to analyze the remaining arguments and because we have the benefit of extensive analysis from other state and federal courts. The Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed...." In a series of relatively recent cases, the United States Supreme Court has concluded that an impartial jury is not provided "if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool." Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975). Thus, the impartial jury requirement is met only when jury venires are drawn from a fair cross section of the community. See Holland v. Illinois, 493 U.S. 474, ----, 110 S.Ct. 803, 807, 107 L.Ed.2d 905 (1990); Taylor, ...