State v. Strawther

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State v. Strawther, 476 S.W.2d 576 (Mo. 1972)
• Decision Date: 22 February 1972
• Docket Number: No. 55930,No. 2,55930,2
• Parties: STATE of Missouri, Respondent, v. Stellman STRAWTHER, Jr., Appellant

Page 576

476 S.W.2d 576

STATE of Missouri, Respondent, v. Stellman STRAWTHER, Jr., Appellant.

No. 55930.

Supreme Court of Missouri, Division No. 2.

Feb. 22, 1972.

John C. Danforth, Atty. Gen., Richard S. Paden, Asst. Atty. Gen., Jefferson City, for respondent.

Wm. C. Morgan, Waynesville, for appellant.

HOUSER, Commissioner.

Stellman Strawther, Jr., tried by a jury, convicted of robbery in the first degree and sentenced to 8 years' imprisonment, has appealed.

Appellant's first point: 'The court erred in overruling defendant's objection to the entire jury panel on the ground that while the defendant is a Negro, there were no Negroes on the jury panel as a result of a practice of systematic exclusion of Negroes from jury panels in Pulaski County, Missouri, for the reason that the exclusion of Negroes from the petit jury which tried this defendant violated this defendant's rights under the Fourteenth Amendment to the Constitution of the United States.' Citing Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, appellant claims that he made a prima facie case showing systematic exclusion of Negroes from the jury panel in Pulaski County and that the burden of going forward shifted to the State, which offered only the unsupported opinion of two witnesses that no such systematic exclusion had been practiced. Appellant contends that the State's evidence on this issue did not overcome his prima facie case, under Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074.

The circuit clerk, who had been in office for sixteen years, and the county clerk, who had been in the office for eight years and prior to that was Presiding Judge of the County Court of Pulaski County for four years, testified for appellant. For sixteen years the circuit clerk had been a member of the board of jury commissioners. The county clerk had been a member of that board during his incumbency as county judge. From their testimony these facts appeared: There were approximately 8,000 registered voters in the county, approximately 80 to 100 of which were Negroes who were over 21 years of age and reputable citizens. No Negroes had served on a petit jury panel in the county during the time the circuit clerk had been in office. The ex-county judge could not answer whether any Negroes had been selected as members of the petit jury panel during his incumbency, stating 'We have selected a lot of people that I didn't know that the other boys did know that's on the jury panel. I couldn't answer that, whether they was any colored on it or not.' The source from which jurors' names were drawn by the jury commissioners for service as petit or alternate petit jurors was the list of voters appearing in the poll books. In going over the voters' list there is no way to determine whether a voter is colored or Caucasian; they are not designated by race. The procedure was as follows: The names of the voters at the last election in each of the six townships were typed on pieces of paper, separated individually and placed in the box by townships. The names of 24 regular members of the petit jury panel and 24 alternates were then drawn from the box. There is no indication of the color of the persons whose names appear on these pieces of paper. The County Voter Registration Lists, which are in the custody of the county clerk, include a question about the race of the registrant but the registration books were not used by the circuit clerk in preparing the slips of paper that went into the box. When the name was drawn out of the box and called out to the board of jury commissioners (consisting of the circuit judge, the three county judges and the circuit clerk) a decision was made whether the person was available and qualified. Twice when deputy sheriffs' names were drawn they were excluded on the ground that they were officers of the law (one of the deputies was a Negro). Some names drawn (not identified as to race) were not taken because they had been 'shipped out,' ¹ or could not be served by the Sheriff because their addresses were unknown or were not eligible to serve (for instance, the deputy sheriffs), or considering 'their background and moral fitness' the board of jury commissioners determined that they should not serve. In the latter class were persons against whom criminal charges were pending. Occasionally the names of Negroes were drawn from the box in the past--'a few' Negroes were drawn--but to the knowledge of the circuit clerk no member of the Negro race had been called on either the regular or alternate petit jury panel or served as a member of any petit jury as a 'pick-up' juror. As an example of Negroes whose names were drawn but laid aside were 'some of them (who had) charges of selling liquor without a license pending against them.' Both officers testified that they knew of no systematic or intentional exclusion of Negroes. The county clerk testified that they had to disqualify some whites as well as some clored persons on the basis that they had criminal cases pending against them.

The foregoing did not make a prima facie case of systematic exclusion of Negroes, on the basis of race, from the jury panel that tried appellant. Appellant did not attempt to show irregularities in the selection of this particular jury panel. The evidence related to what had happened in the past at various terms of court over a sixteen-year period--the general practice in Pulaski County in drawing jury panels was demonstrated. While past practices may be shown past practices will not make a prima facie case, unsupported by evidence that systematic exclusion was practiced in the composition of the particular panel from which the convicting jury was chosen.

Nor was there a showing of statistical probabilities warranting such a finding. There was evidence that from 1% to 1 1/4% of the registered voters of Pulaski County were Negroes, but no showing as to the number or percentage of registered Negroes who actually voted (it being from the list of actual voters that the names which went into the box were taken), and no evidence as to the number or percentage of Negroes on the voting list who were qualified to serve as jurors. In Whitus v. Georgia the population of the county was shown to be 45% Negro, and the County Tax Digest, from which names of prospective jurors were taken, was kept on a segregated basis. In this case the percentage of the population of Pulaski County that were Negro was not shown and the poll books, from which the jury panel was made up, were not kept on a segregated basis. If we should make the assumption that all of the registered Negroes voted and that each of them was qualified, eligible and available for service of process, the statistical probability would still be considerably in favor of the selection of an all-white jury panel.

Aside from statistics, and not considering their conclusory testimony that there was no systematic or intentional exclusion of Negroes, appellant's witnesses revealed a proper source for the names placed in the box; that Negroes' names went into the box and were occasionally drawn; that the Negroes whose names were drawn were rejected for acceptable reasons, and that in rejecting persons on these grounds the jury commissioners did not discriminate between white persons and Negroes, but rejected all such disqualified persons indiscriminately when found not qualified on these bases. Appellant's first point is without merit.

Appellant's second point: 'The court erred in overruling defendant's objection to the endorsement of Clayton E. Larkin on the information as a witness for the State and in overruling defendant's objection to allowing this witness to testify, or in not granting the defendant's request for a continuance because of such endorsement for the reason that defendant was completely surprised by the appearance of this witness, was unprepared to defend against his testimony and was thereby denied a fair trial.'

Criminal Rule 24.17, V.A.M.R. provides that 'When an indictment or information is filed the names of all material witnesses for the prosecution shall be endorsed thereon. The names of other witnesses may be added at any time upon order of court and after notice to the defendant or his...