Wilkins v. State

• Decision Date: 17 October 1973
• Docket Number: No. 34,34
• Citation: 310 A.2d 39,270 Md. 62
• Parties: Ralph Edward WILKINS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 62

270 Md. 62

310 A.2d 39

Ralph Edward WILKINS v. STATE of Maryland.

No. 34.

Court of Appeals of Maryland.

Oct. 17, 1973.

Karl G. Feissner, Assigned Public Defender, Hyattsville, (Feissner, Kaplan, Smith, Joseph & Greenwald, Hyattsville, on the brief), for appellant.

James L. Bundy, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty., for Prince George's County, Eugene Muskus and E. Garrison Neal, Asst. State's Attys. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

SMITH, Judge.

Appellant, Ralph Edward Wilkins, after conviction by a Prince George's County jury of murder in the first degree and a sentence to life imprisonment, appealed to the Court of Special Appeals. That court affirmed in Wilkins v. State, 16 Md.App. 587, 300 A.2d 411 (1973). We granted certiorari for the limited purpose of Considering the contentions of Wilkins relative to jury selection.

We shall adopt, with minor editing, that portion of the opinion of Judge Scanlan for the Court of Special Appeals which pertains to this point. He said for the court:

'Prior to trial, appellant moved to challenge the jury array, contending that the exclusive use of the 1970 list of Prince George's County registered voters for the selection of jurors denied appellant due process of law and the right to be tried by a 'jury of his peers.' For the reasons stated, we hold that the court below properly denied appellant's motion challenging the array.

'In 1969, Maryland adopted a uniform and comprehensive statute governing the selection of jurors throughout the political subdivisions of the State. ¹ The policy which underlies the statute is set forth in Code (1957, 1972 Repl.Vol.) Art. 51, § 1 which reads as follows:

'Whenever a litigant . . . is entitled to trial by jury, he shall have the right to a petit jury selected at random from a fair cross section of the citizens of this State resident in the county wherein the court convenes . . .. Whenever a person is accused of an indictable criminal offense . . ., he shall have the right to a grand jury selected at random from a fair cross section of the citizens of this State resident in the county wherein the court convenes . . .. All citizens of this State (1) shall have the opportunity to be considered for service on grand and petit juries in the courts of this State by maintaining their names on the roll of registered voters for State elections . . ..'

'Sec. 2 also provides that:

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

'Section 4 of the jury statute requires a written plan for random selection of jurors which will achieve the objectives of the statute and comply with its detailed provisions. In accordance with the statute, the court used the 1970 list of registered voters to select the jury. Appellant contends that this list did not represent 'a fair cross section of the community,' because 43%, or 165,812, of the population of Prince George's County who were over 21 years of age failed to register for the election held that year and thus could not qualify as jurors. The point thus raised is one of first impression in this Court, although it has been ruled upon elsewhere. ²'

' Article 51, § 1 incorporates the constitutional requirement that a defendant 'is entitled to trial by (a) jury . . . selected . . . from a fair cross section' of the community in which he is being tried. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84 (1940). It is not necessary, of course, that the jury actually selected be representative of the community. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 90 L.Ed. 1181 (1946). However, it is a constitutional mandate that 'the source of names of prospective jurors and the selection process be reasonably designed to produce a fair cross-section.' United States v. Guzman, 337 F.Supp. 140, 143 (S.D.N.Y.), aff'd, 468 F.2d 1245 (2d Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973); and United States v. Van Allen, 208 F.Supp. 331, 334 (S.D.N.Y.1962), modified in part on other grounds, sub. nom. United States v. Kelly, 349 F.2d 720 (2nd Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). In Thiel the Supreme Court summarized the basic constitutional preprequisite to be observed in jury selection:

'The American tradition of trial by jury, . . . necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84; Glasser v. United States, 315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.' Id. 328 U.S. at 220, 66 S.Ct. at 985.

'Thus, the crux of the inquiry raised by the appellant's challenge to the array is whether use of the voter registration list produced a 'systematic or intentional exclusion of any cognizable group or class of qualified citizens.' United States v. Guzman, supra, 337 F.Supp. at 143. Art. 51, § 2 identifies six classes or groups which cannot be discriminated against in the jury selection process. However, the appellant would go further. He maintains that otherwise qualified voters who failed to register to vote constitute a definite group or class who have been unlawfully excluded from service as jurors.

'The State argues, with considerable persuasion, that the constitutionality of using registered voters lists has been approved, impliedly at least, by the Supreme Court. In Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 97 L.Ed. 469 (1953), the Court approved the use of property tax lists. Voter registration lists are more encompassing than property tax lists. The less affluent, members of racial and ethnic minorities, and young people appear in proportionately greater numbers on a voters list. In addition, the Supreme Court's decision in Brown arose in a context of racial discrimination, an area where the Court has been especially vigilant in protecting against discriminatory stratagems designed to exclude Negroes from jury duty. Smith v. Texas, supra; Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947). We could, therefore, base our holding in this case on the precedent furnished by the Brown decision. However, the precise issue raised by the appellant is a novel one and not passed upon in the Brown case. Accordingly, we move beyond the limited light shed by Brown to deal directly with the precise, but different, factual issue presented by the appellant's challenge to the array in this case. That question is: Were the otherwise eligible voters of Prince George's County who failed to register for the 1970 election a cognizable or identifiable group or class for purposes of jury selection? If they constitute such a definitive class, use of the 1970 registered voters list systematically, if not intentionally, excluded the class from jury service. If the nonregistered voters were not a 'cognizable' class, then their exclusion from jury service offended no constitutional or statutory right possessed by the appellant.'

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