State v. Pruitt
| Decision Date | 16 January 1980 |
| Docket Number | No. 79-055-CR,79-055-CR |
| Citation | 95 Wis.2d 69,289 N.W.2d 343 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Richard Lee PRUITT, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Review Denied.
William W. Moir, III, Sheboygan, argued, for defendant-appellant; Miller, Hayes, Werner & Moir, S.C., Sheboygan, on the brief.
David J. Becker, Asst. Atty. Gen., argued for plaintiff-respondent; Bronson C. LaFollette, Atty. Gen., on brief.
Before VOSS, P. J., and BROWN and BODE, JJ.
Defendant Richard Lee Pruitt was found guilty by a jury of the first-degree murder of Christine Berg. On appeal, he challenges: (1) the constitutionality of the jury selection process in Sheboygan County, (2) the order of the trial court requiring the defense to make available to the State the report of a defense retained psychiatrist, (3) the refusal of the trial court to give the defendant's proposed instructions on first and second-degree murder, expert testimony, and the defendant's theory of the case, and (4) the sufficiency of the evidence to support the conviction.
The defendant and the victim became engaged on December 2, 1977. The romance apparently soured, however. By April 7, 1978, the victim returned the engagement ring to the defendant and announced her intention to move in with one Bruce Bowton. During the next few weeks, the defendant, and the victim saw each other on several occasions to return gifts they had given each other.
Shortly after midnight on May 21, 1978, the defendant and the victim engaged in a loud and near-physical argument in the parking lot outside Bowton's apartment. Bowton ordered the defendant to leave. Before driving off, the defendant told Bowton, "I'm going to get you too." The defendant went home, obtained his rifle and ammunition and returned to Bowton's apartment. Upon entry there, he pointed the rifle at Bowton and ordered him to keep away from him. He then raised the rifle to his shoulder and shot the victim, who at that moment was attempting to make a telephone call. The shot entered the victim's head behind her right ear and exited in front of her left ear. She was dead when the police arrived approximately half an hour later.
Prior to trial, the defendant filed a motion challenging the jury array and requesting an order directing that a new jury panel be drawn on the ground that the representation of young people (which he defined as those twenty-nine years of age or younger) was not fair and reasonable in relation to the actual population of that age group in Sheboygan County. The panel from which the jury was to be drawn contained the names of 101 people. Of that total, four were twenty-nine years of age or younger.
At the hearing on this motion, the defendant examined the three jury commissioners for Sheboygan County and offered the testimony of Thomas J. Peneski, an assistant professor of mathematics, as an expert on the variation between the percentage of young people in Sheboygan County and the number of young people on the jury array. Assuming the master jury list to be an accurate reflection of the actual age distribution in the county (25% Under thirty years of age according to the 1970 Census of Population), Mr. Peneski testified to the extremely low probability of a jury array of 101 containing the names of only four people under age thirty. Mr. Peneski concluded that, in his opinion, the jury selection process in Sheboygan County did not appear to be a random selection process.
The testimony of the three jury commissioners need not be restated in detail. Their testimony noted the inherent problems encountered in attempting to reach young people for jury service and, in the case of two commissioners, revealed a conscious effort on their part to see that young people were adequately represented on the master jury list.
In its memorandum decision denying the defendant's motion, the trial court relied on a random selection of nine regular thirty-six member jury arrays drawn at various times sine 1973. On those panels, forty-nine out of 324 were under thirty years of age. The court found that these figures clearly demonstrated that young people in the county were not excluded from jury service.
The United States Supreme Court recently set forth what a defendant must prove to show a prima facie violation of his sixth amendment right to a jury pool representing a fair-cross-section of the community in Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 586-87 (1979):
In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be 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.
With respect to the first element of the above test, the Wisconsin Supreme Court has recognized young people as a "cohesive unit" which, if excluded, is a sufficient ground for a sixth amendment challenge. State v. Holmstrom, 43 Wis.2d 465, 473, 168 N.W.2d 574, 578 (1969); Accord, Wilson v. State, 59 Wis.2d 269, 281, 208 N.W.2d 134, 141 (1973). The State, however, urges that we reexamine Holmstrom, insofar as it recognizes young people as a distinctive group because, with the exception of United States v. Butera, 420 F.2d 564 (1st Cir. 1970), other federal and state courts have unanimously held that young adults are not a cognizable class whose exclusion from the jury selection process renders it constitutionally infirm. 1
If constitutional principles were decided by a majority vote of the courts in the country, Holmstrom would indeed be turning slowly in the wind awaiting its last breath. Fortunately, we are not required to go beyond the members of this court for a showing of hands on the determination of constitutional questions. We are convinced that young adults do constitute a distinctive group whose systematic exclusion from jury service violates the sixth amendment fair-cross-section requirement. Although we recognize the difficulties inherent in reaching young adults for jury service, we do not believe the sixth amendment fair-cross-section requirement must step aside for the sake of convenience. The young adults of our society are a "cohesive unit" or "distinctive group" for purposes of a sixth amendment challenge to a jury array. 2
Having found that young adults do constitute a distinctive group, we turn to the second element of the test to determine whether the representation of that group on juries is fair and reasonable in relation to the population in the county.
It cannot be seriously argued that 4% Representation of a group on a jury array is fair and reasonable when that group constitutes 25% Of the population. If the examination of one jury array were sufficient to establish underrepresentation of a group, we would feel compelled to rule in favor of the defendant.
However, a showing of disproportionate representation of a group on one jury array is not enough. Proof of underrepresentation is intimately tied to proof of the third element of whether such underrepresentation is the result of a systematic exclusion of the group in the jury selection process. In Holmstrom, supra, 43 Wis.2d at 472, 168 N.W.2d at 578, the supreme court noted that a "systematic exclusion can be shown by the direct testimony of the jury commissioners or by proving a disproportionate representation of a unit of citizens on the jury array Over a period of time." (Emphasis added.) Thus, in order to establish the final element of prima facie violation of the fair-cross-section requirement, the challenger must show one of two things a jury selection process that in itself tends to exclude members of the underrepresented group, or a disproportionate representation of a group on juries over a period of time.
The testimony of the jury commissioners refutes any inference that young adults were deliberately excluded from the master jury list. On the contrary, two of the commissioners testified they had made conscious efforts to obtain the names of young adults for jury service and had submitted a significant number to the master jury list. The third commissioner had served in that position for less than a year and had not submitted any names to the master list. The selection process itself, therefore, does not show a system designed to exclude young adults from jury service.
As previously noted, the number of young adults on the jury array was not fair and reasonable in relation to the adult population. The evidence offered by the defendant, however, was limited to an examination of only one array of 101 potential jurors. The trial court went beyond this evidence in determining the representation of young adults to be fair and reasonable. In doing so, the court properly followed the directive of Holmstrom, supra, that disproportionate representation must be established "over a period of time" absent testimony of systematic exclusion by the jury commissioners. The review of jury arrays over a period of time is also mandated by the United States Supreme Court as evidenced by the requirement of Duren v. Missouri, supra, that underrepresentation of a group must be shown in "venires from which juries are selected . . . ." Contrary to the defendant's contention, it would have been error if the trial court had Not examined previous jury panels in its determination of the defendant's challenge. Disproportionate representation of a group in one array is insufficient to establish a systematic exclusion. 3
Unfortunately, the record does not reveal how many young adults were on the master jury list. The only evidence we have of the...
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...U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831 (1979). At least one court has held that young adults are a cognizable group, State v. Pruitt, 95 Wis.2d 69, 289 N.W.2d 343 (1980), but another court has held that those aged 18-24 are not. People v. Chesler, 398 N.Y.S.2d 320, 91 Misc.2d 551 (1977). ......
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