Wilkins v. State of Maryland, Civ. No. B-74-697.

• Decision Date: 01 October 1975
• Docket Number: Civ. No. B-74-697.
• Citation: 402 F. Supp. 76
• Parties: Ralph Edward WILKINS # 120002 v. STATE OF MARYLAND.
• Court: U.S. District Court — District of Maryland

402 F. Supp. 76

Ralph Edward WILKINS # 120002 v. STATE OF MARYLAND.

Civ. No. B-74-697.

United States District Court, D. Maryland.

October 1, 1975.

Karl G. Feissner, Hyattsville, Md., for petitioner.

Bernard A. Raum, Asst. Atty. Gen., Baltimore, Md., for respondent.

MEMORANDUM AND ORDER

BLAIR, District Judge.

On December 8, 1971, Ralph Edward Wilkins was convicted by a jury of murder in the first degree, for the shotgun slaying of one Thomas Magellan Lewis, on December 14, 1970. For this murder, Wilkins was sentenced to life imprisonment. Thereafter, Wilkins appealed to the Court of Special Appeals of Maryland, Wilkins v. State, 16 Md.App. 587, 300 A.2d 411 (1973), and, upon a writ of certiorari, review was had by the Court of Appeals of Maryland, Wilkins v. State, 270 Md. 62, 310 A.2d 39 (1973). Certiorari was denied by the Supreme Court, Wilkins v. Maryland, 415 U.S. 992, 94 S.Ct. 1592, 39 L.Ed.2d 889 (1974).

Now, Wilkins seeks a writ of habeas corpus from this court. The attorney who represented Wilkins at trial and on appeal has been appointed to represent him in this court, and he has performed his services well. Six issues are raised, and they shall be treated in the order set forth in petitioner's brief.

I.

Analogizing to Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L. Ed.2d 274 (1972), which overturned a one-year residency requirement for voter qualification, petitioner attacks the juror list from which Wilkins' jury was chosen. Petitioner notes that the jury array was drawn from voter registration lists and that, in 1971, Maryland had one-year state residency and six-month county residency requirements for voter registration. Petitioner then reasons that, if the voter rolls from which the jurors were drawn was constitutionally defective, then the juror list must also have been constitutionally deficient.

This syllogism fails even at the most rudimentary levels of logic. Dunn v. Blumstein, supra, was brought by new residents of Tennessee, who complained that the one-year residency requirement for voters interfered with their "right to travel," id. at 338, 92 S.Ct. 995, and that it denied them equal protection of the laws by infringing upon their fundamental right "to participate in elections on an equal basis with other citizens in the jurisdiction," id. at 336, 92 S.Ct. at 1000. The Supreme Court agreed with the new residents' arguments in Dunn. It does not follow from that decision, however, that all one-year residency requirements are unconstitutional. Dunn says nothing about one-year residency requirements for jurors. Furthermore, Dunn v. Blumstein only addresses the rights of the new residents who wished to vote—specifically, their right to travel and their right to equal protection of their right to vote. Wilkins' claim under the Sixth and Fourteenth Amendments hardly raises issues concerning his rights to travel and to equal protection of his right to participate in elections.

Turning from the Dunn decision, it should be noted that the juror selection plan for the district courts of the United States also requires that jurors reside in the district for one year prior to qualifying as jurors. See 28 U.S.C. § 1865(b)(1) (1975 Pocket Part). And, in this context, the one-year residency requirement for jurors has been upheld against constitutional attack. See United States v. Perry, 480 F.2d 147 (5th Cir. 1973); United States v. Ross, 468 F.2d 1213 (9th Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188 (1973).

Although evidence was introduced at trial concerning the percentage of adults who were not registered to vote, no evidence was adduced concerning the socio-economic composition of the registered and unregistered adults. And, this court agrees with the holdings of the Court of Appeals of Maryland and the Court of Special Appeals, to the effect that more than mere numbers must be shown to make out a valid attack on a juror selection plan. Wilkins v. State, 270 Md. 62, 310 A.2d 39, aff'g, 300 A.2d at 413-17. A defendant is only entitled to a selection process which is "reasonably designed to produce a fair cross-section" of the community. See United States v. Guzman, 468 F.2d 1245, 1247-48 (2d Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L. Ed.2d 602 (1973), aff'g, 337 F.Supp. 140, 143 (S.D.N.Y.1972). "Jury pools are not required to be a mirror image of the community." United States v. Ross, 468 F.2d 1213, 1217 (9th Cir. 1972), cert. denied, 410 U.S. 989, 93 S. Ct. 1500, 36 L.Ed.2d 188 (1973). To establish a violation of his rights, the defendant must show the "systematic exclusion" of some "cognizable group or class of qualified citizens." See United States v. Guzman, supra; United States v. Ross, supra. No evidence of systematic exclusion of any cognizable group or class was introduced in the state court hearing on this issue, and there has been no suggestion that any such evidence exists.

Lastly, it has been held, and this court agrees, that it is reasonable "to assume that ordinarily voter registration lists are sufficient sources for jury selection lists." United States v. Guzman, supra at 1248. And, federal courts have long approved of the use of voter registration lists in the face of constitutional challenges. See, e. g., United States v. Guzman, supra; United States v. Ross, supra; Camp v. United States, 413 F.2d 419 (5th Cir.), cert. denied, 396 U.S. 968, 90 S.Ct. 451, 24 L.Ed.2d 434 (1969); United States v. Caci, 401 F.2d 664 (2d Cir. 1968), cert. denied, 394 U.S. 917, 931, 89 S.Ct. 1180, 22 L. Ed.2d 450 (1969); United States v. Kelly, 349 F.2d 720, 778 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966); United States v. Kroncke, 321 F.Supp. 913 (D.Minn. 1970); United States v. Greenberg, 200 F.Supp. 382 (S.D.N.Y.1961). This court is not prepared to disapprove the use of voter registration lists as a source of juror lists.

II.

Next, Wilkins charges that the judge's instructions to the jury concerning manslaughter, unconstitutionally shifted the burden of proof from the prosecution to the defendant on this issue. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The state replies that the instructions merely placed on the defendant

the burden of moving forward with the evidence showing the elements which would reduce the felonious and unlawful killing from second degree to manslaughter, or showing that the killing was justifiable or excusable . . . .

(Trial Transcript at 366) and that the instructions kept on the state the burden of proving all elements of all possible offenses beyond a reasonable doubt. See Wilkins v. State, supra, 300 A.2d 411, 421-23. This practice, the state argues, is analogous to having a defendant move forward with some evidence of insanity before the sanity question is placed in issue, and that burden of raising an issue was not disapproved in Mullaney. See Mullaney v. Wilbur, supra, 421 U.S. at 701-703, nn. 28, 30, 31, 95 S.Ct. 1881. Further, the state argues, since Wilkins was convicted of first degree murder— for which the instructions unquestionably required proof by the prosecution of premeditation beyond a reasonable doubt —any error on manslaughter was harmless beyond a reasonable doubt.

This court does not reach the question of whether the trial court's instructions drew a clear distinction between the defendant's burden of moving forward with some evidence to reduce the crime to manslaughter, and the state's ultimate burden of proving all elements beyond a reasonable doubt. Deciding that question is unnecessary because this court agrees that any error in that respect was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U. S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

This court believes, and finds, that the instructions to the jury in no sense diluted the state's burden of proving beyond a reasonable doubt all of the elements of first degree murder, i. e., an unlawful killing, perpetrated in a manner which was "willful, deliberate and premeditated." See Trial Transcript at 360-68. The trial judge emphasized that first degree murder required proof that the killing was "deliberate, willful and premeditated" and "the State must prove beyond a reasonable doubt that the murder was deliberate, willful and premeditated." Transcript at 365-66. He went on to explain that

premeditation means that the killing must be premeditated, planned in the mind beforehand, and a design to kill must have preceded the killing by an appreciable length of time—time enough to deliberate and form an actual willful intent to kill. There must be a showing that there was deliberation with enough time existing for deliberation and premeditation to convince you, the triers of the facts, that this purpose existed in the mind and the mind has become fully conscious of its design. Although the design to kill must precede the killing by some appreciable length of time, that time need not be long. If the killing results after hesitation or doubt, with sufficient time to overcome any doubt, a choice which results from thought is sufficient to characterize the crime as deliberate and premeditated, even though there is but a short time for this deliberation and premeditation.

Trial Transcript at 367. The trial judge also instructed the jurors on the possibility of a first degree murder conviction under the felony murder rule—a likely possibility given the evidence of armed robbery. Trial Transcript at 368. In addition, the elements of first and second degree murder were carefully distinguished from those for manslaughter. Manslaughter, the judge explained, would require "an involuntary killing, not done with the intention to take the decedent's life, but which resulted from a reckless and indifferent disregard for another person's life." Trial Transcript at 367. Also, he...