State v. Procell
| Citation | 332 So.2d 814 |
| Decision Date | 17 May 1976 |
| Docket Number | No. 57350,57350 |
| Parties | STATE of Louisiana v. Hugh Lee PROCELL a/k/a R. D. Procell. |
| Court | Supreme Court of Louisiana |
John P. Godfrey, Many, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., for plaintiff-appellee.
Defendant Hugh Lee Procell was charged by bill of information in May of 1975 with attempted second degree murder of Clellie Lee Batson in violation of R.S. 14:30.1. Procell was tried by jury, convicted, and sentenced to sixteen years imprisonment. From that conviction and sentence, defendant has perfected this appeal.
The single perfected assignment of error complains that the trial court erred in overruling defendant's motion to quash the information on the grounds that the jury was improperly constituted. Specifically, defendant alleges that the list from which the petit juries are chosen is not made up of names selected at random from a fair cross section of the community because all qualified citizens were not given an opportunity to be considered for jury service, in contravention of the fifth, sixth, and fourteenth amendments to the Constitution of the United States and of Articles I, Section 16 and V, Section 33 of the Louisiana Constitution of 1974.
We pretermit the question of whether the system of selecting the general venire violated defendant's rights under the federal constitution and statutory law.
The Louisiana Constitution of 1974 states that 'Every person charged with a crime . . . is entitled to (an) . . . impartial trial.' La.Const. art. I, § 16 (1974). This guarantee of an impartial trial continues the predecessor provision in the 1921 Constitution. La.Const. art. VII, § 41 (1921). 1 These general provisions which extend to criminal defendants the right to an impartial trial apply to the selection of the general venire by the jury commission of each parish. C.Cr.P. arts. 408, 409. Although the names of the persons which make up the general venire must be selected impartially, each of those persons may not actually have to serve on a jury because he may be exempt from jury service. 2 Before January of 1975, exemptions from jury service were granted by the Legislature. R.S. 13:3042, 13:3056; C.Cr.P. arts. 402, 403. However, the 1974 Constitution changed this system, directing that this Court decide which classes of qualified 3 persons are exemptable. 4
Specifically, the Constitution mandates that 'The supreme court shall provide by rule for exemption of jurors.' La.Const. art. V, § 33(B). In response to this constitutional charge, this Court unanimously passed Rule XXV, effective January 1, 1975, which states in full as follows:
'Section 1. It is the policy of this court that All litigants in Louisiana courts entitled to trial by jury Shall have the right to grand, petit and civil juries selected at random from a fair cross-section of the parish wherein the district court convenes, that All qualified citizens shall have the opportunity to be considered for jury service in the district courts of Louisiana and shall have an obligation to serve as jurors when summoned for that purpose, and that No citizen shall be excluded from jury service in the district courts of Louisiana on account of race, color, religion, sex, national origin or economic status.
'Section 2. This court finds that the exemption of the following groups or occupational classes is in the public interest and, accordingly, members of such classes are exempt from jury service:
(a) Public officers in the executive, legislative, or judicial branches of the Government of the United States, or the State, or any subdivision thereof, who are actively engaged in the performance of official duties;
(b) Members in active service in the Armed Forces of the United States and members of the National Guard of this State while on active service;
(c) Members of paid fire or police departments of the State or any subdivision thereof and federal law enforcement officers;
(d) Members of the following groups when regularly and actively engaged in the practice of their professions: attorneys at law, ministers of religion, chiropractors, physicians, dentists, pharmacists and optometrists;
(e) All persons over seventy years of age;
(f) Persons who have served as grand or petit jurors in criminal cases or as trial jurors in civil cases during a period of two years immediately preceding their selection for jury service.
Section 3. Any person may waive his exemption from jury service, but the exemption is personal to him and is not a ground for challenge.' (Emphasis added).
Coincident with this constitutional directive, the Legislature repealed C.Cr.P. art. 402 and amended Article 403 to provide: 'Exemptions from jury service shall be as provided by rules of the Louisiana Supreme Court pursuant to Section 33(B) of Article V of the Louisiana Constitution of 1974.'
Our rule was passed with the stated purpose of guaranteeing 'that all qualified citizens shall have the opportunity to be considered for jury service.' Under the rule certain classes of qualified citizens are granted a personal exemption from jury service. The rule directs no action on the part of the jury commissioners whose preparation of the general venire is directed by Code of Criminal Procedure Articles 408 et seq. Instead, as we held in State v. Gaines, 315 So.2d 298, 300 (La.1975), the rule 'effectively (prohibits) the exclusion from the jury selection process of any qualified segment of our citizenry . . ..'
In Sabine Parish, however, the rule has been used to facilitate the exclusion of segments of the population. There, the five jury commissioners attempt themselves to avoid selecting a person for the general venire whom they believe falls into one of the exemptable classes of citizens. 5 J. E. Wright, the Clerk of Court and one of the five jury commissioners, testified in response to questions as follows:
'Q. In your selection of them (the jurors), do you attempt to grant the exemptions that were set forth in the Supreme Court Orders of October 24, 1974 (now Rule XXV)?
A. Yes, sir.
Q. In other words, you don't put them in there if you know that they fall within that list of exempted persons?
A. We try not to, yes, sir, unless they waive that exemption to us and none have.
Q. In other words, they would have to waive it to you instead of to the Court, is that right?
A. That is the way we do it, yes, sir.'
Thus, under the system employed in Sabine Parish, certain persons qualified to serve on juries are never given an opportunity to serve because the jury commissioners exclude their names from the general venire on the basis that they fall under exemption set out by the rule, a rule which allows them, if they choose, to serve notwithstanding the claimable exemption. This exclusion clearly contravenes the letter and spirit of the law. It means that the general venire is not selected impartially, as our constitution and statutes require, and that the general venire was improperly constituted under our Rule XXV, Code of Criminal Procedure Article 403, and Louisiana Constitutional Articles I, § 3 and V, § 33 (1974).
In order to enforce these provisions, we are constrained to reverse the conviction of defendant Procell and remand his case to the district court for retrial by a petit jury chosen from a general venire which has been selected according to law. The state argues that this Court has recently affirmed two convictions of defendants who were tried and/or indicted by juries drawn from this same general venire. 6 However well-intentioned our efforts were in attempting to ease the commissioners' change from an unlawful system of choosing the venire to a lawful system, those efforts have proved fruitless. 7 It is now clear to us that the jury commissioners have made no attempt to correct or change that system. Since we have the chief responsibility for the enforcement of the laws of this state and since the only method open to us for that enforcement is a case-by-case review of convictions, reversing those convictions gained after improper procedures, we must reverse the conviction of defendant Procell.
The state also argues that defendant Procell cannot be heard to complain about the method used to choose the names in the general venire because at his trial he failed to exercise all of his peremptory challenges. It is true, of course, that if a defendant does not exhaust his peremptory challenges he cannot complain on appeal of a judge's ruling refusing to sustain a challenge for cause. C.Cr.P. art. 800. However, no such exhaustion is a prerequisite to the complaint that the selection of the names for the general venire was unconstitutional.
Although we do not base our ruling on this ground, we note that defendant makes a second argument to us to support his position that the venire was improperly constituted. He complains that the method used by the commissioners to prepare the venire does not produce a jury selected at random from a fair cross section of the community. The basis of this assertion is the fact that names for the general venire are not drawn indiscriminately from available lists, but are selected individually by the commissioners because of their personal judgment that the person selected would make a good juryman. 8 Although this personalized selection offers the opportunity for commissioners to include in the venire only special segments of the population, or to systematically exclude classes of qualified citizens, either of which would violate the fair cross section standard, 9 there is no evidence in the record before us that this is the case in Sabine Parish. In the absence of any evidence in the record supporting defendant's allegation that the jury pool did not represent a fair cross section of the community, we cannot assume such a violation. State v....
To continue reading
Request your trial
-
State v. Jenkins
...occupations, such as the professions, residing in their wards. This case is distinguishable from our recent holding in State v. Procell, 332 So.2d 814 (La.1976), wherein we reversed a conviction by a jury chosen from a venire from which the jury commission had purposely excluded All exempt ......
-
State v. Thompson
...can be chosen from a general venire that is selected according to law. See State v. Jacko , 444 So.2d 1185 (La. 1984) ; State v. Procell , 332 So.2d 814 (La. 1976).There is little question defendant's jury was assembled from the same venire the Louisiana Supreme Court found defective in Can......
-
Guice v. Fortenberry
...role of foreman. 3 This practice, which the parish jury commissioners followed prior to 1976, was held unconstitutional in State v. Procell, 332 So.2d 814 (La.1976). There were only five opportunities for Judge Adams to select a foreman after the Procell decision, including the selection of......
-
State v. Boyd
...we overruled motions to quash jury venires on the grounds of exclusion of women and blacks. Defendant argues that under State v. Procell, 332 So.2d 814 (La.1976), the venire should be quashed because the jury commissioners themselves did not place the names of persons who were exempt from j......