Wilkins v. State

• Decision Date: 11 January 1973
• Docket Number: No. 214,214
• Citation: 300 A.2d 411,16 Md.App. 587
• Parties: Ralph Edward WILKINS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 587

16 Md.App. 587

300 A.2d 411

Ralph Edward WILKINS v. STATE of Maryland.

No. 214.

Court of Special Appeals of Maryland.

Jan. 11, 1973.

Karl G. Feissner, Hyattsville, with whom were Feissner, Kaplan & Smith, Hyattsville, for appellant.

Francis B. Burch, Atty. Gen., James L. Bundy, Asst. Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County, E. Garrison Neal and Eugene Muskus, Asst. State's Attys. for Prince George's County, for appellee.

SCANLAN, Judge.

The appellant, Ralph Edward Wilkins, was convicted by a jury in the Circuit Court for Prince George's County of murder in the first degree. The presiding judge (Bowie, J.) sentenced him to life imprisonment. He has appealed from the judgment of conviction and the sentence imposed.

Eyewitnesses placed the appellant at the scene of the murder. Appellant also admitted being at the scene of the crime, but claimed another person had 'done the shooting.' He entered pleas of not guilty and not guilty by reason of insanity. The appellant did not take the stand in his own defense. The defense offered no witness with respect to the murder charge against him. Nor was there any testimony adduced to the effect that he was criminally insane at the time of the crime. In denying appellant's motion for a new trial, the trial court stated 'that it is very seldom that the State has a case where they nail the case down more clearly than they did in this case.'

On his appeal, the appellant has not challenged the sufficiency of the evidence. However, he has raised a plethora of other contentions in his attack on the judgment below. Several of these raise issues of constitutional dimension; one of them presents issues of first impression in this Court; a few are troublesome; but none rise to the level of an argument sufficient to require reversal of the judgment of conviction. In the ensuing sections of the Court's opinion, we discuss appellant's contentions seriatim in the order in which they were presented in his brief.

I THE CHALLENGE TO THE ARRAY WAS PROPERLY DENIED

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.' Appellant also attacked the constitutionality of Article 51, § 6(b)(viii) of the Code (1972 Repl.Vol.), which bars persons '21 years of age or under' from jury service. 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 its first section 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, . . .' (Art. 51 § 1)

The statute 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.' ²

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. ³

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.1972), aff'd, 468 F.2d 1245 (2d Cir. 1972); United States v. Van Allen, 208 F.Supp. 331, 334 (S.D.N.Y.1962). The Supreme Court has summarized the basic constitutional prerequisite 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.' Thiel v. Southern Pacific Co., supra, 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. The statute (Art. 51, § 2) identifies six classes or groups who 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 v. Allen, supra, 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 purpose 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.

For a group to be 'cognizable', the group must have a definite composition. As Judge Metzner recently spelled it out . . . That is, there must be some factor which defines and limits the group. A cognizable group is not one whose membership shifts from day to day or whose members can be arbitrarily selected. Secondly, the group must have cohesion. There must be a common thread which runs through the group, a basic similarity in attitudes or ideas or experience which is present in members of the group and which cannot be adequately represented if the group is excluded from the jury selection process. Finally, there must be a possibility that exclusion of the group will result in partiality or bias on the part of juries hearing cases in which group members are involved. That is, the group must have a community of interest which cannot be adequately protected by the rest of the populace.' United States v. Guzman, supra, 337 F.Supp. at 143-144.

The appellant produced the census statistics as to the total population of Prince George's County in 1970 and compared these figures with the number...