Trice v. State
| Decision Date | 15 April 1993 |
| Docket Number | No. F-87-573,F-87-573 |
| Citation | 1993 OK CR 19,853 P.2d 203 |
| Parties | Eddie Leroy TRICE, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Eddie Leroy Trice, appellant, was tried by jury and convicted of First Degree Malice Aforethought Murder (21 O.S.1981, § 701.7) (Count I), First Degree Rape, After Former Conviction of Two or More Felonies (21 O.S.1981, § 1114) (Count II), First Degree Burglary, After Former Conviction of Two or More Felonies (21 O.S.1981, § 1431) (Count III) and Assault and Battery With a Dangerous Weapon, After Former Conviction of Two or More Felonies (21 O.S.1981, § 645) (Count IV) in Oklahoma County District Court, Case No. CRF-87-878, before the Honorable William R. Burkett, District Judge. The jury found four (4) aggravating circumstances and sentenced appellant to death on Count I and nine hundred ninety nine (999) years imprisonment for each of Counts II, III and IV. We affirm.
Shortly after midnight on February 14, 1987, appellant entered the home where eighty-four year old Ernestine Jones lived with her sixty-three year old, mentally retarded son, Emanuel. Appellant entered the home through a window leading into the bedroom of Ms. Jones. Once inside, appellant savagely beat Ms. Jones with a martial arts weapon known as nunchakus, Emanuel Jones was also beaten by appellant, receiving a broken arm and ultimately loosing an eye as a result of the attack. After beating the victims, appellant raped Ms. Jones and took approximately three hundred dollars ($300.00) from the residence that Emanuel had earned selling aluminum cans.
The body of Ernestine Jones was found by her daughter on the afternoon of February 14, 1987. As a result of information obtained from Emanuel Jones and Archie Landon, appellant's roommate, police secured an arrest warrant for appellant which was executed on February 18.
In his sixth proposition of error, appellant contends the voter registration list used to compose the jury panel, see, 38 O.S.Supp.1985, § 18, resulted in the systematic exclusion of minorities. Appellant contends such systematic exclusion denied him his rights to equal protection of the laws under the Fifth Amendment 1, and to a jury drawn from a fair-cross-section of the community under the Sixth Amendment. Initially, we note this Court has previously considered and rejected a similar contention, holding that the procedure utilized at the time of appellant's trial for calling jurors was "racially neutral and not susceptible to abuse." Fox v. State, 779 P.2d 562, 566 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1538, 108 L.Ed.2d 777 (1990). Despite our previous holding, we shall examine appellant's allegations in some detail.
The requirements for a prima facie showing of an equal protection challenge to jury selection are set forth in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977):
The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. (Citation omitted). Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time.... Finally, ... a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. (Citation omitted). Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.
Id. at 494-95, 97 S.Ct. at 1280. 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.
Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). Thus, "[w]hile equal protection and fair-cross-section cases are not entirely analogous, ... both violations require a showing of a distinctive group and a substantial underrepresentation of that group in jury venires before a prima facie case is established and the burden of proof shifts." United States v. Yazzie, 660 F.2d 422, 426 (10th Cir.1981), cert. denied, 455 U.S. 923, 102 S.Ct. 1282, 71 L.Ed.2d 464 (1982).
After a review of the motion hearings, we conclude appellant has failed to demonstrate the requisite degree of underrepresentation. Accordingly, he has failed to establish the representation of non-whites on the jury panel was not fair and reasonable in relation to the number of such persons found in the community. Having failed to make a prima facie showing on either his Fifth Amendment or Sixth Amendment claim, we find no error in the trial court's denial of appellant's motion to challenge the jury selection process. See Sellers v. State, 809 P.2d 676, 681-2 (Okl.Cr.1991), cert. denied, 502 U.S. 912, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991).
In his seventh assignment of error, appellant claims he was denied his right to trial by a jury composed of a fair cross-section of the community by operation of 38 O.S.1981, § 28(A), which allows persons seventy years of age or older to opt out of jury service. Appellant, relying on the 1980 census, claims approximately 6.9% of the total age-qualified population in Oklahoma County were seventy years of age or older. We find appellant has failed to make the requisite showing for a fair-cross-section challenge. See Duren, supra. Specifically, we find appellant has failed to meet the first prong of Duren, as we have previously held this exemption from jury service does not exclude a sufficiently numerous and distinct group. Fox, 779 P.2d at 566; Moore v. State, 736 P.2d 161, 165 (Okl.Cr.1987), cert. denied, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987). Nothing in appellant's statistical analysis persuades us to find differently here. Furthermore, we have held that in light of both the higher rate of infirmities suffered by the elderly, as well as the likelihood of substantial hardship if they are compelled to travel or serve lengthy jury terms, the statutory age provision is a reasonable exemption from jury service. Sellers, 809 P.2d at 682.
In his eighth assignment of error, appellant claims the trial court erred in excusing veniremen Herron, Cole and Doughty for cause during voir dire without allowing defense counsel an opportunity to rehabilitate them. A prospective juror may be excused for cause because of his or her views on capital punishment if "the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). During voir dire the trial court, speaking to the entire jury panel, asked the following: Veniremen Herron and Cole raised their hands. The trial judge asked each the following:
If you found beyond a reasonable doubt that the defendant was guilty of murder in the first degree, and if under the evidence, facts and circumstances of the case, the law would permit you to consider a death sentence, are your reservations about the death penalty such that, regardless of the law, the facts and circumstances of the case, you would not consider the death penalty?
Both responded they could not consider the death penalty. Ms. Doughty's initial response to the same question was that her consideration of the death penalty would depend upon the evidence. However, upon further questioning from the trial court, Ms. Doughty stated that she could not consider the death penalty. The trial court's questioning established none of these potential jurors would consider imposing the death penalty in a proper case, and thus they were properly excluded under the standard enunciated in Witt. A review of the transcript of voir dire reveals the relevant questions had been asked and answered. Accordingly, it was not error to deny defense counsel the opportunity to make further inquiry. See Stouffer v. State, 738 P.2d 1349, 1361 (Okl.Cr.1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988).
In his ninth proposition of error, appellant claim...
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