State v. Smith
| Decision Date | 12 April 1971 |
| Docket Number | No. 53326,No. 2,53326,2 |
| Citation | 467 S.W.2d 6 |
| Parties | STATE of Missouri, Respondent, v. Verne Arthur SMITH, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
Granville E. Collins, T. E. Lauer, Columbia, for appellant.
The jury returned a verdict of guilty of murder in the first degree and sentenced defendant to life imprisonment. He has appealed.
Defendant, a 26-year old (graduate student) instructor in history at the University of Missouri, was charged with the killing of a student on October 18, 1965. Upon arraignment, he entered a plea of not guilty in reliance on the defense 'that as a result of mental disease or defect he did not appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law.' On the same day, December 2, 1965, the trial court ordered that defendant be placed in custody and control of the Superintendent of State Hospital No. 1 at Fulton for psychiatric examination. Reports filed later reflected a diagnosis of Schizophrenic Reaction, Chronic Paranoid Type, with the conclusion 'that he remains psychotic and should be considered as not responsible for the crime with which he is charged because of his mental illness.' However, it was concluded that defendant had the capacity to understand the proceedings against him and assist counsel in defense of the charge. Chapter 552, V.A.M.S. After a formal hearing on February 1, 1967, the trial court found defendant 'competent to proceed,' but ordered him returned to custody in State Hospital No. 1. At the moment, we are not concerned with disposition of other pre-trial motions.
The trial began on April 18, 1967. One hundred one persons were present as prospective jurors--thirty regular veniremen and seventy-one talesmen selected by the sheriff of the county. All were men. Voir dire followed.
Prior to the making of peremptory challenges, defendant moved to quash the jury panel on the ground that women had been purposefully and systematically excluded. After a tendered offer of proof, the motion was overruled. Subsequently, in connection with the hearing on defendant's motion for a new trial, the trial court received evidence on the issues raised by the motion to quash. The motion was overruled and sentencing folowed. It is alleged that the trial court committed error in so doing. We first will consider this contention.
Fundamentally, a defendant in a criminal prosecution has a right to a jury selected from a representative cross-section of those persons in the community who are eligible for jury service. This does not mean that a particular jury panel must contain persons from every legally cognizable group; but, it does mean that there can be no deliberate exclusion of any legally qualified group. Woman, as such, constitute an identifiable group and are eligible to serve as jurors in this state. Article 1, Section 22(b), 1945 Missouri Constitution, V.A.M.S., provides: 'No citizen shall be disqualified for jury service because of sex, but the court shall excuse any woman who requests exemption therefrom before being sworn as a juror.' See Sections 494.010, 494.031, V.A.M.S. This constitutional provision expressly prohibits disqualification on the basis of sex; and, to comply with this mandate, those persons charged with the selection of a jury panel must not give consideration to the sex of one otherwise qualified. A possible claim of the exemption authorized is solely that of the prospective juror. Additionally, the purposeful elimination of persons of a particular class does violence to the basic concept that veniremen are to represent a cross-section of the community. Such has long been the law of this state. State v. Logan, 341 Mo. 1164, 111 S.W.2d 110; State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949, 952; State v. Brownridge, Mo., 353 S.W.2d 715, 717; State v. Amerison, Mo., 399 S.W.2d 53, 56. Other cases considering alleged exclusion of women are: State v. Taylor, 356 Mo. 1216, 205 S.W.2d 734, 738; State v. Ready, Mo., 251 S.W.2d 680, 683; State v. Andrews, Mo., 371 S.W.2d 324, 327; Parker v. Wallace, Mo., 431 S.W.2d 136, 138; State v. Parker, Mo., 462 S.W.2d 737 and State v. Davis, Mo., 462 S.W.2d 798. It is also established that an obvious lack of a proportionate share of a class or even the absence of any member of a certain class on a particular panel is not alone sufficient to establish impropriety in its selection. '* * * (I)t is clear that systematic exclusion and percentage discrimination must be alleged and proved in order to impeach a jury panel on this ground.' State v. Mooring, Mo., 445 S.W.2d 303, 305; State v. Dowe, Mo., 432 S.W.2d 272, 275; State v. Taggert, Mo., 443 S.W.2d 168, 170. Defendant submits that he made a prima facie case based on both a showing of intentional exclusion and continuing percentage discrimination, and that the burden of showing otherwise shifted to the state. See Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181; Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118, and Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599.
Defendant called the circuit clerk of the county who also acted as clerk of the jury commission. She stated that names of prospective jurors are taken from lists of voters in the county clerk's office, and that petit jury panels are selected from a pool of about 400 names, kept separately as to townships. A portion of her testimony is as follows:
Further testimony indicated that after the list is made up there is generally no further discrimination, except when five or six woman were drawn consecutively for a particular panel 'maybe' some were put back. Of the original forty-eight chosen for the term during which defendant was tried, three were supposedly women. However, for some reason only thirty of this group were called and none were women.
The sheriff and one of his deputies were called as to the manner of selecting the seventy-one talesmen. Briefly, their testimony indicated that a pool of names was made up from persons who had served from 'two years to ten years back,' and the seventy-one were then drawn at random. Necessarily, these same persons had originally been on lists prepared by the jury commission over an eight year period; and the fact all drawn were men certainly tends to confirm that the selective process described had been practiced continuously for several years.
Defendant submits arguments, based on mathematical probabilities, that any drawing of one hundred one men and no women considered alone made a prima facie case of intentional discrimination. We need not decide this point nor extend this opinion by detailing all of the arguments against the 'mathematical likelihood' a randon selection would create such a...
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