State v. Robinson

• Decision Date: 05 June 1980
• Citation: 417 A.2d 953
• Parties: STATE of Delaware v. Dale ROBINSON, Defendant.
• Court: Delaware Superior Court

Page 953

417 A.2d 953

STATE of Delaware v. Dale ROBINSON, Defendant.

Superior Court of Delaware, New Castle County.

Submitted Feb. 28, 1980.

Decided June 5, 1980.

Upon Defendant's Motion to Dismiss Indictment. Denied.

Upon Defendant's Motion to Dismiss Indictment or to Require a Preliminary Hearing. Denied.

Bartholomew J. Dalton and John T. Gandolfo (argued), Dept. of Justice, Wilmington, for the State.

Nancy Jane Mullen, Asst. Public Defender, Wilmington, for defendant.

LONGOBARDI, Judge.

Defendant has been indicted for an alleged violation of 11 Del.C. 1254(a), assault in a detention facility. By pretrial motions, Defendant has challenged the legality of the procedures whereby his indicting Grand Jury was selected as well as the manner in which the prosecution has proceeded thus far in the case. Specifically, Defendant claims that the Plan of the Superior Court of New Castle County for the random selection of grand and petit jurors (hereinafter referred to as the "Plan"), adopted pursuant to 10 Del.C. 4501 et seq. and effective September 13, 1976, is not adequately designed to achieve the objectives of § 4501 and § 4503 and does not comply with § 4504(b)(2). Therefore, according to Defendant, the instant indictment must be dismissed. As for the second motion, Defendant alleges that because his prosecution was initiated by an indictment and warrant under Criminal Procedure Rule 9, he was deprived of the right to a preliminary hearing which is afforded by Rules 5 and 5.1 to defendants whose prosecutions are initiated by an arrest. Defendant claims that the creation of a class of defendants who are not afforded a preliminary hearing violates his equal protection rights under the federal and Delaware Constitutions. As a result of these alleged violations, Defendant argues that either his indictment should be dismissed or, in the alternative, he should be granted a postindictment preliminary hearing. Having fully considered the briefs and contentions of counsel at oral argument, the Court is now prepared to rule on the pending motions.

I

Defendant's attack on the adequacy of the Plan for selection of jurors focuses primarily on three provisions of Chapter 45, Subchapter I, Title 10, set out in pertinent part below:

§ 4501. Declaration of policy.

It is the policy of the State that all litigants in state courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the county wherein the court convenes. It is further the policy of the State that all citizens shall have the opportunity to be considered for service on grand and petit juries in the courts of the State, and shall have an obligation to serve as jurors when summoned for that purpose.

§ 4503. Discrimination prohibited.

No citizen shall be excluded from service as a grand or petit juror in the courts of the State on account of race, color, religion, sex, national origin or economic status.

§ 4504. Plan for random jury selection.

(b) Among other things, such plan shall:

(2) Specify whether the names of prospective jurors shall be selected from the voter registration lists or the list of actual voters of each county. The plan shall prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by § 4501 and § 4503 of this title.

Defendant correctly points out that the written Plan provides for selection of prospective jurors from the New Castle County voter registration list and that no other source is mentioned therein. Defendant argues that the written Plan does not expressly include a formal monitoring procedure to ascertain whether selection of prospective jurors from the voter registration list effectuates the policies declared in § 4501 and § 4503. The final factual basis for Defendant's grand jury attack lies in an undisputed set of statistical data concerning the relative proportions of whites and non-whites in the County's voting age population and in the prospective jury panels selected under the Plan. This statistical data is detailed infra. From these undisputed facts, Defendant advances two arguments concerning alleged inadequacies in the Plan vis-ea-vis the statutory policies expressed in § 4501 and § 4503.

A

Defendant's first argument is that the Plan is facially defective in two respects. First, Defendant argues that without an ongoing monitoring procedure there is no way to determine whether prospective jurors have been "selected . . . from a fair cross section of the county," § 4501, and without regard to "race, color, religion, sex, national origin or economic status," § 4503. While it is obvious that some kind of monitoring is necessary to ascertain whether the Plan is in fact achieving these statutory objectives, § 4504 (which deals with the specific requirements for written plans) does not expressly require that such monitoring procedures be included in the written Plan. Therefore, the Court rejects Defendant's claim that the Plan is facially defective because it contains no written provision concerning ongoing monitoring procedures. Moreover, defense counsel admitted in the briefs and at oral argument that the statistics relied upon herein to show non-white representation in the various prospective jury panels were developed, maintained by and obtained from the Superior Court Administrator. The fact of the matter is that this Court has required its Administrator to maintain such statistics since the Plan's inception so that the Court can adequately monitor compliance with the statutory objectives. The fact that counsel was able to obtain the statistics upon which she relied in her brief attests to the monitoring process of the Court. Thus it is clear that Defendant's argument concerning the absence of adequate monitoring procedures is patently without merit.

The second aspect of Defendant's facial attack on the Plan concerns the requirement of § 4504(b)(2) for inclusion of an alternative source, in addition to voter lists, from which prospective jurors may be selected "where necessary to foster the policy and protect the rights secured by § 4501 and § 4503 of this title." As indicated earlier, the only source presently included in the Plan is the voter registration list. Defendant argues that the Plan violates § 4504(b)(2) because it fails to include an alternative source to supplement the voter registration list. This Court believes that Defendant has misread the statutory alternative source requirement. The statute does not unconditionally require inclusion of an alternative source. Rather, the alternative source mandate of § 4504(b)(2) becomes operative only "where necessary to foster" the policies of § 4501 and § 4503. In other words, it is only when the voter registration list fails to produce petit and grand juries which represent a fair cross section of the county that the statute requires development of and resort to an alternative selection source. See United States v. Armsbury, D.Or., 408 F.Supp. 1130, 1136 (1976). ¹ Therefore, the Court holds that the Plan as written does not violate the alternative source mandate of § 4504(b)(2) unless it can be shown that the voter registration list does not in fact produce "a fair cross section of the county" or that the Plan's present exclusive reliance on the voter registration list in fact results in the discrimination prohibited by § 4503.

B

This leads to consideration of Defendant's primary argument based exclusively on the aforementioned statistical data, that is, the Plan, in violation of § 4501, does not in fact result in selection of jurors from a fair cross section of the county and does result in an unfair representation of non-whites in violation of § 4503. Defendant relies exclusively on the Superior Court Administrator's statistical data concerning the representation of non-whites on the master jury wheel, the qualified jury wheel, the monthly petit jury panels and the composition of the grand jury. ² The Defendant and the State do not dispute the accuracy of the Administrator's data. Consequently, the Court will accept this data in determining the merits of Defendant's motion.

At this point, a very brief description of the Plan's procedure for selection of jurors is in order. Initially, one percent of the names on the voter registration list are randomly selected by a computer. This is called the "master jury wheel." All persons on the master jury wheel are then required to complete qualification questionnaires and those found qualified are placed on the "qualified jury wheel." Thereafter, petit jurors are selected from the qualified jury wheel to serve on "monthly petit jury panels." During the months of June and December, a combined total of fifteen persons are selected from the qualified jury wheel and, if necessary, the master jury wheel to serve as the grand jury for New Castle County. Although this description of the Plan's operation is somewhat simplified, it will suffice for present purposes.

The Administrator's data reveals the following relevant figures. The proportion of voting age non-whites in New Castle County according to the 1970 census was 11.9%. The jury selection statistical data must be compared to this figure in order to determine the adequacy of non-white representation under the Plan. The only figures presently available concerning composition of the master jury wheels and the qualified jury wheels are those for January and March, 1978. In each of these months, approximately 2,000 names were selected from the voter registration list and placed on the master jury wheel. Approximately 1,600 persons responded to the qualification questionnaires in each month. These questionnaires provide the initial information needed to determine proportional representation of various racial groups. In January, 1978, of those responding to the questionnaires, approximately 6% were non-white; in ...