Wooten v. State, 1-1180A322

• Decision Date: 31 March 1981
• Docket Number: No. 1-1180A322,1-1180A322
• Citation: 418 N.E.2d 538
• Parties: Clyde D. WOOTEN, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 538

418 N.E.2d 538

Clyde D. WOOTEN, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-1180A322.

Court of Appeals of Indiana, First District.

March 31, 1981.

Gregory D. Ball, Richmond, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge.

This is an appeal by defendant-appellant Clyde D. Wooten, Jr. (Wooten) from a conviction by a jury in the Wayne Superior Court No. 1 of battery under Ind.Code 35-42-2-1 (Supp.1979).

We affirm.

STATEMENT OF THE FACTS

The evidence most favorable to the State is as follows: David Phillips, age 21 and a resident of Daleville, Indiana, at approximately 11:00 a. m. on October 20, 1979, was walking along a sidewalk in Richmond, Indiana, with his wife. An automobile driven by Wooten, and containing a passenger, stopped. Wooten and the passenger jumped out of the automobile, Wooten brandishing a jack. Then Wooten swore at Phillips, swung the jack at him, and threatened to shoot him. Upon Phillips' wife's screaming that she was going to call the cops, Wooten desisted; he and his passenger jumped back in the car and ran Phillips down with the car causing injury to him. Phillips had last seen Wooten the night before at a relative's house where he had observed him for five or ten minutes. Furthermore, Phillips saw Wooten clearly at the scene of the offense for approximately four minutes. Phillips was also able to identify Wooten from a photographic display, as well, as at trial. The identification of Wooten was corroborated by Phillips' wife, Linda.

ISSUES

The issues presented for review are as follows:

I. Whether the trial court erred in dismissing a juror who was neither a householder nor a freeholder;

II. Whether the trial court erred in refusing to give Wooten's instruction No. 1 relating to treatment of evidence on identification;

III. Whether the pretrial photographic display identification was impermissibly suggestive;

IV. Whether the court erred in refusing to allow Wooten to sit in the gallery among selected persons during eyewitness testimony.

Issue I. Exclusion of non-freeholder or non-householder from jury

Defendant claims his sixth amendment right to a jury panel composed of a fair cross section of the community was violated by arbitrarily excluding young people. This challenge grows out of an action of the trial court, taken during the jury voir dire, excusing a young man of unknown age from the panel solely because he was neither a freeholder nor a householder, but who lived at home with his parents. No issue has been raised as to the correctness of the court's application of our statute on the qualification of jurors, but rather the challenge is to the statute itself.

Ind.Code 33-4-5-7 establishes as a qualification that a juror, either grand or petit, must be a resident voter of the county and a freeholder or householder. Where the legislature has, within its limits of power, declared who shall be competent jurors, such declaration is binding on the court. Johnston v. State, (1958) 239 Ind. 77, 155 N.E.2d 129. Block v. State, (1885) 100 Ind. 357. In Holt v. State, (1977) 266 Ind. 586, 365 N.E.2d 1209, our Supreme Court summarized the rule:

"Due process requires a fair and impartial jury. The right to an impartial jury precludes systematic and intentional exclusion of any particular class of persons, but does not require that any particular class be represented. Tewell v. State, (1976) 264 Ind. 88, 339 N.E.2d 792. Although a jury must be selected from a fair cross-section of the community, jurors need not be mathematically proportioned to the character of the community. Fay v. N. Y., (1947) 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043. The burden of demonstrating prejudicial discrimination is on the defendant. In addition, trial courts have discretionary authority to excuse prospective jurors. Brown v. State, supra, ((1977) 266 Ind. 82, 360 N.E.2d 830) Tewell v. State, supra. Certainly this discretion must not be exercised illogically or arbitrarily, but a reasonable exercise of discretion by the trial court will not be interfered with on appeal."

266 Ind. at 590-91, 365 N.E.2d 1209.

Although jury selection systems are required to draw prospective jurors from a fair cross section of the community, reasonable qualification may be imposed, notwithstanding the fact that they may detract from the cross section present in the actual jury pool. Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482.

No case has been cited construing the constitutionality of the householder qualification for a juror and we have found none. ¹ However, our Supreme Court, in Steven v. State, (1976) 265 Ind. 396, 354 N.E.2d 727, pet. reh., aff'd, 357 N.E.2d 245, applied the requirement without question, although the only issue there was whether the grand juror in question was a householder. The court explained the reason for the rule as follows:

"By it, the Legislature intended that grand jurors be actual members of the community served by the grand jury.

They must also have had the experience of making important and binding practical decisions of everyday living. And they must be capable of making important decisions independently of family or relatives or others."

265 Ind. at 401, 354 N.E.2d 727.

Cases do exist on the voter and property requirement. Furthermore, the requirement that a juror be a voter is not constitutionally infirm. McPherson v. State, (1978) Ind.App., 383 N.E.2d 403; Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831. A jury selection system which excludes from jury service all persons who do not own real property is, prima facie, systematic discrimination and unconstitutional. However, a system by which the jury is selected from assessment rolls of the owners of real and personal property is not unconstitutional per se. Leggroan v. Smith, (10th Cir. 1974) 498 F.2d 168; Brown v. Allen, (1953) 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. Use of such assessment rolls can be in such a way as to be an unconstitutional discrimination. Leggroan, supra. In Carter v. Jury Commission of Greene County, (1970) 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549, the Supreme Court of the United States recited:

"The States remain free to confine the selection (jurors) to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character."

396 U.S. at 332, 90 S.Ct. at 524.

The requirement that a juror be a taxpayer (since practically everyone pays tax in some form), is not unconstitutional per se. Clark v. Ellenbogen, (1970) 319 F.Supp. 623, Aff'd, 402 U.S. 935, 91 S.Ct. 1615, 29 L.Ed.2d 104.

The statute setting forth the jury qualifications as that of a freeholder or householder is, in our opinion, a status classification based on maturity, as explained in Stevens, supra. Thus, it is not unreasonable and unconstitutional per se, and is within the power of the General Assembly to prescribe. See Carter, supra.

Issue II. Denial of Wooten's instruction No. 1

The court refused to give to the jury Wooten's instruction No. 1, which reads as follows:

"An important issue in this case is whether or not there has been reliable eyewitness identification of the perpetrator of the crime. The State of Indiana has the burden of proving the perpetrator's identity beyond a reasonable doubt. We do not require any eyewitness to be absolutely certain about the correctness of his or her identification, but you, the jury, could not convict this defendant unless you were convinced beyond a reasonable doubt of the accuracy of the identification of the defendant to have been the perpetrator of the crime charged.

Identification testimony is an expression of belief or impression from purported memory. It's value depends on many factors, among which are (a) whether the witness observed the offender's face correctly, (b) whether the witness retained that perception without distortion in memory, (c) whether the witness is able to retrieve a faithful version of that remembered image when called upon to identify a suspect at some later time, and (d) whether the witness can describe or articulate that memory with a degree of precision.

In evaluating the identification testimony of a witness, you should also consider the following:

1. Are you convinced that the witness has the capacity and an adequate opportunity to observe that perpetrator? Whether the witness had such an adequate opportunity or not could be affected by such matters as the time period involved, distances, lighting conditions, whether the perpetrator was a total stranger or had been seen or known before, and whether any stress or fear-provoking situation altered the witnesses' perceptual ability at the time of the observation.

2. Are you convinced that the identification made by the witness after the offense was the product of his or her own recollection? If the subsequent identification may have been influenced by the circumstances under which the defendant or his photograph was presented to the witness, you should scrutinize that identification with great care.

3. Finally you must consider the credibility of each identification witness as you would any other witness, considering whether he or she is truthful and whether he or she made reliable observation and recollection.

I again emphasize that the burden of proof on the prosecutor extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the perpetrator to be one and the same as the defendant. If, after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty."

Instead the court gave its own instruction No. 3 as follows:

"You are the exclusive judges of the evidence, the credibility of the...