People v. Johnson

38 Cal. App. 3d 228, 113 Cal. Rptr. 303, 1974 Cal. App. LEXIS 1049

Opinions

Opinion

BROWN (Gerald), P. J.

Nealy Aubrey Johnson, defendant, appeals his conviction, after jury trial, of first degree murder (Pen. Code, § 187).

Mrs. Margaret Lewis and her daughter, Katherine, the murder victim, lived in a one bedroom apartment in San Diego. Johnson lived with Mrs. Lewis and Katherine during the summer of 1970; after August of 1970 Johnson stayed at the apartment on weekends only. When Johnson stayed at the apartment, he and Mrs. Lewis would sleep in the bedroom, and Katherine would sleep on the couch in the living room. On the evening of October 12, 1970, Mrs. Lewis was admitted to the hospital for surgery. She planned to remain in the hospital for about two weeks; Johnson had agreed to take care of Katherine during Mrs. Lewis’ absence. Johnson did not have a key to the apartment, and Katherine was to leave the sliding glass door unlocked. Johnson left Mrs. Lewis at the hospital about 7 p.m. He said he was going directly to the apartment.

Three of Katherine’s friends were with her at the apartment until 9:20 p.m. At 9 Johnson called Katherine and told her he would not arrive until 10. Mrs. Lewis called Katherine about 10:15 and said her. surgery had been cancelled. Johnson had not returned to the apartment. At 10:30 Mrs. Lewis again called Katherine. Johnson still had not returned, and she asked Katherine to have Johnson call her when he came in. Katherine wrote Johnson a note to this effect which was later found by the telephone. Mrs. Lewis called again at 10:50 and at 11:15. Katherine told Mrs. Lewis she had called the Club Cabrillo and had been told Johnson had left there at 10:55 p.m. One of Katherine’s friends called her about 11:30. Katherine ended that conversation about 11:45, saying someone was coming and she had to go. Mrs. Lewis called again about midnight. Katherine told Mrs. Lewis she was in bed, and had been trying to sleep.

Johnson, after leaving Mrs. Lewis at the hospital, went to the Club Cabrillo, where he helped the owner serve beer. He dropped three bottles of beer, and cleaned up the broken glass. When he left the Club Cabrillo at 10:55 there were no cuts on his hands. Johnson went to the VFW bar, and stayed there until midnight, then went to the Presidio Bar. Johnson met Barry Burrow, a friend, and Phyllis Hunkins, who was with Burrow. Johnson, Burrow, and Hunkins left the bar at 1 a.m. in Johnson’s car. After leaving Hunkins at her apartment, Johnson drove Burrow to the Marine Corps Recruit Depot (MCRD) barracks. Johnson returned to Hun-kins’ apartment alone, and asked her to invite him in for a drink or a cup of coffee. Hunkins refused. As Johnson was leaving the apartment building, he saw another apartment he thought belonged to a friend. Johnson knocked on the door, it swung open and he walked in. Norma Marler was in bed in the front room. She rushed at Johnson and pushed him out the front door. Three men, including Mrs. Marler’s son and one of his friends were also in the apartment; in the scuffle outside Mrs. Marler’s apartment involving all these individuals, Johnson hit Mrs. Marler in the mouth and then fled. Mrs. Marler called the police and reported the incident. Johnson returned for his car a few minutes later, and drove to a small beer bar, arriving there about 1:30 and leaving about 10 minutes later.

Michael Revetti lived in an apartment next to the Lewis apartment; the two apartments’ bedrooms and bathrooms shared a common wall. The sound insulation between the apartments was poor, and in his apartment Revetti could hear even normal conversations in the Lewis’ apartment. Revetti returned to his apartment on October 13 at 1:15 a.m. At 1:30 he went to his bathroom to take a shower. He could hear shower water running in the Lewis bathroom. After showering, Revetti read in his apartment from 1:45 to 2:45. He was sitting in his dining area, about 8 feet from the common wall with the Lewis apartment. The apartment was quiet; he heard no noises in the Lewis apartment.

Joseph Weeks and Cynthia Thomas walked across the parking area of the Lewis apartment building at 2:15. Weeks saw the light in Revetti’s apartment, and noticed although the Lewis apartment was dark and the drapes were drawn, the sliding glass door and screen door were both standing open. He remarked to Miss Thomas this was unusual because the evening was cold.

Revetti went to bed at 2:45. He heard heavy wheezing sounds, like labored breathing, coming from the Lewis apartment. At 3 he heard a thump, sounding like someone falling out of bed. Afterwards, the Lewis apartment was quiet.

Johnson told the police the next day he returned to the MCRD barracks after leaving the beer bar at 1:45. He said he called Mrs. Lewis from a pay phone on the base about 2:15. Mrs. Lewis recalled receiving the call at 2:35; she said Johnson’s voice was unusually hoarse and low, as though he were talking with his hand on the receiver. Johnson also called a girl he had seen earlier in the Club Cabrillo some time after 2 a.m. Johnson said when he returned to the barracks the duty NCO was not at his desk. Johnson said he fell asleep on the toilet, awoke about 3:30, and went to bed. A fellow marine woke Johnson at 6 on the morning of the 13th. The duty NCO did not see Johnson return and did not see him in the barracks that night. Part of his duties included regularly checking the rest rooms.

Mrs. Lewis called her apartment early on the morning of the 13th. No one answered, so Mrs. Lewis called the apartment manager at 6:50 a.m. and asked her to check the apartment. The manager entered the apartment using the passkey. The screen door and sliding door were open. She found Katherine in the bedroom, dead.

Katherine was lying on her back between the twin beds. She was wearing only a shortie nightgown which was gathered above her breasts. Her underpants lay on the floor nearby. Katherine had been severely beaten, and stabbed three times in the back. Her jaw was broken on both the left and right sides; dislodged teeth and bone fragments were found inside her mouth. Her face had minor cuts and scratches. One of the three stab wounds in her back had penetrated the body cavity. Katherine’s death resulted from a combination of bleeding, asphyxiation resulting from injuries to her face, bleeding in her hypopharynx and trachea, and shock. Katherine lived at least one hour after she was injured, and could have lived as long as six hours. .The pathologist could not establish the time of death. A large quantity of blood was found on the bed, with a smaller quantity on the floor.

An examination of Katherine’s body for evidence of rape showed no trace of recent intercourse, or of injury to her genitalia. Her vaginal opening suggested she had been sexually active. Her underpants were not ripped or tom, and had no trace of semen. In addition to the stab wounds in her back, Katherine had been cut and stabbed on her chest and stomach. These wounds were not very deep.

Katherine had Type A blood; Johnson’s blood type was B. Katherine’s body and face were bloody. A blood crust of Type B was found on her inner leg about one inch from her vagina. A blood smear of Type B was found on her thigh. Bloody palm prints on the bed sheet contained both types of blood. The bathroom basin had Type A blood on it, as did a damp bath towel found in the hamper. The telephone receiver had a light smear of Type B blood; the face of the phone had specks of Type A blood. Three walls and the ceiling of the bedroom were spattered with blood.

The couch in the living room had been made up into a bed, which had not been slept in. The telephone, normally kept in the living room, was in the bedroom. A steak knife had a small amount of Type A blood on the blade near the handle. A fresh fingerprint, never identified, was on the outside of the sliding glass door near the handle. Human hair distinguishable from Johnson’s, Mrs. Lewis’ and Katherine’s, was found in Katherine’s nightgown and on the blanket of the bed. Other, unidentified hair was found in the bedding on the couch.

Johnson had a laceration on one of the knuckles of his right hand on October 13, His hand was slightly puffy and bruised. There was a small cut between two fingers. Johnson said he had hit a small wooden sign at MCRD on the morning of October 13. The sign, which had been nailed down, was dislodged.

Issues

Johnson argues he was denied a fair trial when expert testimony on the identity of the maker of the bloody palm prints was admitted, and when the trial court denied his motion to discover the names of experts who had examined the palm prints for the prosecution while the trial was in progress and who believed the prints’ maker could not, be determined; the People were not calling these experts as witnesses. Johnson maintains the evidence is insufficient to support a finding of first degree murder. He contends his pretrial motions to quash the grand jury indictment and to prohibit exclusion of certain petit jurors were erroneously denied.

Discussion

Discovery of Experts’ Identity

The prosecution presented the testimony of one expert witness the bloody palm prints left on the sheet were Johnson’s. After the People rested, Johnson presented two experts who testified the prints were not his. He then moved to discover the identity of any experts to whom the prosecution had shown the prints whose opinion was the maker could not be identified. The district attorney admitted he had shown the prints to some experts, while the trial was in progress, who said the prints’ maker could not be determined.¹ He argued against allowing discovery, saying this information could not possibly assist the defendant’s case.² Hie trial court refused discovery. Another expert testified at trial the print could not have been Johnson’s. Finally, at the close of trial, the prosecution and defense introduced by stipulation, two other experts’ opinions, one favoring each side. Thus, the jury was told by two experts the print was Johnson’s, while four experts were of the opinion Johnson was not the maker of the print.

We conclude denial of the defense motion to discover the identities of the experts was erroneous.

While a mere desire by a criminal defendant to inspect all the information obtained by the People in their investigation cannot compel discovery (People v. Cooper, 53 Cal.2d 755, 770 [3 Cal.Rptr. 148, 349 P.2d 964]), any information which may throw light on issues in the case should not be denied the accused (People v. Riser, 47 Cal.2d 566, 586 [305 P.2d 1], overruled on other grounds, People v. Morse, 60 Cal.2d 631, 649 [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810]). Information, to be discoverable, need not necessarily be relevant to the ultimate issue of the accused’s guilt or innocence. The defendant also has the right to discovery evidence by which he may rigorously cross-examine and impeach the witnesses against him (People v. Riser, supra, 47 Cal.2d 566, 586). Where it is appropriate, the defendant may discover the reports of the state’s experts concerning their examinations of real evidence (People v. Cooper, supra, 53 Cal.2d 755, 770); discovery of the identity of state experts is analogous. (See Hill v. Superior Court, 10 Cal.3d 812 [112 Cal.Rptr. 257, 518 P.2d 1353].)

Here, Johnson’s requested discovery could have led to information highly beneficial to him. An expert examining the print could have come to four conclusions: (1) Johnson made it; (2) someone other than Johnson made it; (3) he could not determine who made it; or (4) the print was of such poor quality no identification was possible. An expert arriving at the third or fourth conclusion is not the equivalent of one having no opinion. Because the state bore the burden of proving Johnson’s guilt beyond a reasonable doubt, proof the print’s maker could not be determined would have been helpful to Johnson, by throwing doubt on the People’s case. The trial court’s refusal to allow discovery denied Johnson valuable information which he could have used to cross-examine, impeach the expert who testified against him, and argue more vigorously the People’s failure to prove guilt beyond a reasonable doubt.

Intentional suppression of material evidence, upon request, constitutes a denial of fair trial to a defendant, and is error (In re Ferguson, 5 Cal.3d 525, 532, 534 [96 Cal.Rptr. 594, 487 P.2d 1234]). The error is reversible if there was a reasonable probability the accused would have obtained a more favorable result in its absence (People v. Riser, supra, 47 Cal. 2d 566, 588). Stated otherwise, whether the error is reversible depends on the materiality of the evidence sought, which is determined in the light of all the circumstances, including not only the evidence of guilt, but also the defense evidence (In re Ferguson, supra, 5 Cal.3d 525, 533).

We shall explain why there is a reasonable probability Johnson would have obtained a more favorable result had the trial court permitted Johnson to discover the identities of the People’s experts who were not called as witnesses.

The evidence of Johnson’s guilt, although not insubstantial, is not compelling. Johnson’s movements were known until about 1:45 a.m. on the night of the murder, but were not firmly established after that time. Revetti heard sounds like labored breathing in the Lewis apartment about 2:45, and a thump like someone falling out of bed at 3. These, the prosecution contended, were the sounds of the murder being committed. On Katherine’s body, and in various places in the apartment, Type B blood was found. Johnson has Type B blood, as does 15 percent of the population. Johnson’s hand had injuries the morning after the murder not inconsistent with the beating Katherine received. Johnson knew Katherine would be home alone, and had access to the apartment.

The defense showed hair not Johnson’s, Katherine’s, or Mrs. Lewis’ was found on Katherine’s nightgown. A fresh fingerprint, unidentified, was on the sliding glass door, which was found open. There were unidentified footprints in the earth outside the sliding glass door. At 11:45 Katherine told her boyfriend she could not talk on the telephone any longer because someone was coming. When Mrs. Lewis called about 11:55 the telephone rang several times before Katherine answered it and complained she was trying to sleep. Although Katherine told her mother at midnight she was going to sleep, at 1:30, before Johnson could have been there, Revetti heard the shower in the Lewis apartment. The defense argued the sounds of labored breathing Revetti heard at about 2:45 and the thump of someone falling out of bed, were more consistent with Katherine’s death throes than with the sounds of the murder being committed, considering the severity of the beating Katherine received; the injuries to Johnson’s hand occurred during the scuffle at Marler’s apartment or when he hit the sign at the MCRD; and the puncture wounds on Katherine’s face showed she was beaten by someone who wore a ring, which Johnson never did.

The most significant evidence in the case is the bloody palm print. The jury heard evidence the print was Johnson’s, and evidence it was not. No evidence was presented the print could not be identified. The print, probably too large to be Katherine’s, and containing Type A and B blood, was undoubtedly made by the murderer. The jury must have concluded the print was Johnson’s; they would not have found him guilty if they believed the print belonged to someone else, and they heard no evidence the print could not be identified. Once Johnson was identified as the print’s maker, no reasonable doubt of his guilt remained.

It is arguable the harm of denying discovery was not great. Johnson presented evidence the print was not his. The experts whose names he sought would have impeached or cast doubt upon the testimony of those who believed the print was not his, as well as those who thought it was. The prosecuting attorney argued to the jury none of the defense experts were currently involved in active fingerprint investigation. These experts were, in fact, retired police officers. On the other hand, the prosecution expert who testified was currently involved in day-to-day investigations, and was called to testify often in criminal trials. The prosecutor argued the People’s expert had much more to lose professionally than did the defense experts, if his testimony was not believed. This argument clinches the importance of the information Johnson sought. Although not precluded from presenting evidence the print was unidentifiable, Johnson was prevented from obtaining this potent evidence from fingerprint experts employed by the People.

Admissibility of Expert Testimony

The bloody, untreated palm prints on the bed sheet did not contain enough detail to identify their maker. The trial court ordered the prosecution not to submit the print to any process which might destroy or consume it without first obtaining court permission. The prosecution submitted the print to computer analysis at Jet Propulsion Laboratory (JPL), and, after a lengthy hearing, expert testimony based on the computer-obtained print was ruled inadmissible. During the trial, without informing the court or Johnson’s attorney, the prosecution had the print sprayed with benzidine, hoping to enhance the print pattern. Johnson’s attorney objected to expert testimony based on the treated print. He argued (1) the expert’s opinion was based on the excluded JPL supplied print, (2) the reliability of the benzidine process was unproven, (3) the benzidine processing may have changed some characteristics of the print and (4) the processing was carried out in violation of the court order. The court found the expert’s opinion was formed independent of the JPL print, ruled Johnson’s other objections went to the weight and not to the admissibility of the expert’s testimony, and admitted the testimony.

On appeal Johnson maintains the treatment of the palm print with benzidine obliterated a portion of it. He argues the portion which was destroyed may have proven he was not the maker of the print. He contends the prosecution should not have been allowed to admit the treated print into evidence. Because this issue may arise again on retrial, it is discussed here.

If the prosecution or the police have destroyed or made unavailable vital defense evidence, the state is disabled from ever giving the defendant a fair trial. In such a case the defendant must be discharged (In re Cameron, 68 Cal.2d 487, 504 [67 Cal.Rptr. 529, 439 P.2d 633]). Whether the People have denied the defendant evidence vital to his case will not normally bear on the admissibility of other, relevant evidence. Here, the disputed palm prints were found admissible by the court. The court ruled the expert’s testimony was not tainted by his earlier contact with the JPL supplied evidence. If, as Johnson now contends, the prosecution, by spraying the bed sheet with benzidine, denied to him vital defense evidence, his proper remedy was not to question the admissibility of otherwise admissible evidence. The print and expert testimony were properly admitted.

Sufficiency of the Evidence

Johnson contends the evidence against him was not sufficient to support a first degree murder conviction, either on a theory of premeditation, or on a felony-murder theory. He argues even though the conviction must be reversed on other grounds, on retrial he may be charged with no more than second degree murder, since the evidence presented in the first trial would have sustained no more than a secqnd degree murder conviction.

The reversal of a judgment of conviction on appeal is generally deemed an order for a new trial (Pen. Code, § 1262). At a new trial, the parties are in the same position as if no trial had been had; the former verdict does not bar any conviction which might have occurred under the original accusatory pleading (Pen. Code, § 1180; Odlum v. Duffy, 35 Cal.2d 562, 564-565 [219 P.2d 785]). An exception to this rule is conviction of a lesser degree of a crime, or of a lesser included offense, which bars, on retrial, prosecution for the higher degree or greater offense. Thus, if Johnson had been convicted of second degree murder, on retrial he could not be convicted of first degree murder (Gomez v. Superior Court, 50 Cal.2d 640, 643-649 [328 P.2d 976]). The exception, however, should not be extended to cases where the defendant has been convicted of the greater offense on what he claims is insufficient evidence. The rationale of Gomez is the conviction of the lesser offense is an implied acquittal of the greater offense (Gomez v. Superior Court, supra, 50 Cal.2d 640, 645). In this case there was no implied acquittal of the greater offense; here Johnson was convicted of first degree murder. On retrial, Johnson may be prosecuted for first degree murder; of course, he may receive no greater sentence than he received following his original conviction (People v. Henderson, 60 Cal.2d 482, 495-497 [35 Cal.Rptr. 77, 386 P.2d 677]).

Since Johnson’s conviction must be reversed on other grounds, the other issues he raises concerning problems which occurred at trial need not be discussed. Johnson may not receive the death penalty on retrial. Jurors who would never impose the death penalty may not be excluded from the guilt phase of trial on retrial.

Grand Jury Indictment

Johnson moved before trial to quash the indictment, contending the grand jury selection process deprived him of equal protection and due process of law. Many San Diego Superior Court judges testified concerning the selection process used for nominating grand jurors. The judges testified no group of persons was intentionally excluded from grand jury service, but there was some difficulty in obtaining the services of the lower economic groups, or blue collar workers, because the pay of a grand juror would not sufficiently reimburse them for their time.

Mr. Michael Lustig, a Ph.D. candidate in sociology, prepared three studies of the San Diego County Grand Jury’s composition. The first study was of grand jury members between 1962 and 1971. The occupation, sex and income of the members of the grand jury during this period was shown. The actual income of the grand jurors could not be determined, so Lustig’s study instead showed the median income of the census tract in which the member resided. The ages of the grand jurors between 1968 and 1971 were shown. The second study was of the nominees for the grand jury in 1970, and showed their occupations, sex and census tract income. The third study was of the nominees for the 1971 grand jury, and contained their occupations, sex and census tract income.³

The trial court denied Johnson’s motion to quash the indictment. He argues this was error. Although the judgment of conviction must be reversed, whether the trial court erred in denying the order must be resolved, since Johnson may again stand trial under the same indictment.⁴

The California statutes governing selection of grand juries are neither unconstitutionally vague nor do they invite discrimination (In re Wells, supra, 20 Cal.App.3d 640, 649).

Johnson contends the grand jury selection and nominations in San Diego County have discriminated by sex, age, wealth, occupation, and have resulted in grand juries not representative of the community. He argues his indictment deprived him of equal protection and due process of law.

Johnson maintains the classes excluded from grand jury service are women, blue collar workers, the less wealthy and young persons. The People note there was no showing Johnson is within any of these excluded classes, and thus he does not have standing to protest their exclusion. In order to protest the make-up of a jury panel, the long-standing rule in California has been a defendant must be a member of a group discriminated against (People v. Sirhan, 1 Cal.3d 710, 753 [102 Cal.Rptr. 385, 497 P.2d 1121], citing cases). The United States Supreme Court in Peters v. Kiff, supra, 407 U.S. 493, at page 504 [33 L.Ed.2d 83, at page 95], held: “[W]hatever his race, a criminal defendant has standing to challenge the system used to select his grand or petit juiy, on the ground that it arbitrarily excludes from service the members of any race, and thereby denies him due process of law.” The People suggest this rule should be strictly construed, and only where the defendant alleges racial discrimination may he challenge exclusion of a group of which he is not a member. The rule of Peters cannot be limited to this extent. The rationale behind the Peters decision extends far beyond the racial context; Peters was aimed at eliminating exclusion of “any large and identifiable segment of the community” from jury service, not merely exclusion of racial groups (Peters v. Kiff, supra, 407 U.S. 493, 503 [33 L.Ed.2d 83, 94]).⁵

In the present case Johnson has not demonstrated he is within any of the groups allegedly excluded from grand jury service: he is neither a woman nor a blue collar worker, and the record does not reveal his age or his wealth. Peters v. Kiff, supra, 407 U.S. 493, was decided June 22, 1972, long after Johnson’s indictment was returned and his trial completed. The rule of Peters is purely prospective in operation (People v. Sirhan, supra, 7 Cal.3d 710, 754), and Johnson was, at the time of his motion, required to show standing to assert class exclusion from grand jur^ service. The order properly denied his motion to quash the indictment.

The judgment is reversed.

Cologne, J., concurred.

1 In advance of trial on defendant’s motion the court had ordered extensive discovery. This court granted Johnson’s petition for writ of mandate to discover specific items in the People’s possession, relevant to the defense (Johnson v. Superior Court, 4 Civ. 11154). During trial Johnson argued he should be permitted discovery of the experts’ identities, based on the pretrial discovery orders. The prosecution countered by saying it had complied with those orders, and argued the information sought by Johnson would not be favorable to him.

2 Although Johnson’s attorney speculated these experts might be with the Ix>s Angeles Police Department (LAPD), the prosecutor admitted only such experts existed. Nothing in the record permits the conclusion these experts were with the LAPD, or were readily available to Johnson.

3 Nine occupational categories are provided by the United States Census Bureau: 1) professional, technical and kindred workers; 2) managers, officials and proprietors; 3) clerical and kindred workers; 4) sales workers; 5) craftsmen, foremen and kindred workers; 6) operative and kindred workers; 7) private household workers; 8) service workers; 9) laborers,,.including farm laborers, but excluding mine workers. To complete his study, Lustig also classified grand jurors and nominees into five other occupational categories: 10) military; 11) retired; 12) housewife; 13) dispute; 14) unknown.

Categories one through four were typed by Lustig as “white collar” occupations; five through nine as “blue collar.” Categories 10 through 14 were typed as “inactive labor force.”

Lustig used the U.S. Census figures as representative of San Diego County population as a whole. The appellant’s brief summarized Lustig’s studies: “The Lustig studies, based upon raw materials provided by the San Diego County Jury Commissioner convincingly show 99% of all grand jurors from 1962 through 1971 were so-called white collar workers . . . 94% of 1971 grand jury nominees similarly were white collar . . . These figures . . . contrast with . . . 45.14% of the San Diego labor force classified in . . . the blue collar . . . categories. From 1962 to 1971, on the San Diego County Grand Jury, men outnumbered women four to one notwithstanding a 1.1 to 1 ratio in the population. Grand jurors from 1962 through 1971 have resided ... in higher median family income census tracts than is truly representative of a cross section of census tract median family income residence. No one under 30 has been named a grand juror from 1968 through 1971. While 54.80% of the 1970 San Diego population is within the age bracket 21 to 44, only 14.86% of grand jurors from 1968 to 1971 are within that age bracket.”

4 Reversal of an otherwise valid conviction because of some irregularity in the indicting procedure would s,eem, at first glance, unwarranted. The standard of proof of guilt is much higher to convict than indict. Certain evidence not admissible at trial because of the exclusionary rule is admissible before the grand jury. When the prosecution has obtained a valid conviction, its ability to have obtained an indictment before a properly constituted grand jury would seem a foregone conclusion. In addition, if a defendant’s motion to quash an indictment has been improperly denied, and reversal must eventually result, he will be given two opportunities to test the prosecution’s case. The courts, however, have accepted the proposition an inva'id indictment must necessarily result in reversal of an otherwise valid conviction (Peters v. Kiff, 407 U.S. 493 [33 L.Ed.2d 83, 92 S.Ct. 2163]; In re Wells, 20 Cal.App.3d 640, 649-651 [98 Cal.Rptr. 1]). A preferable rule would be to require the defendant to test the validity of the indictment by way of writ in the appellate courts, and foreclose him from raising this point on appeal. Such a rule has been adopted by the statutes with regard to motions challenging venue in civil matters (Code Civ. Proc., § 400).

5 The exclusion of a “substantial and identifiable class of citizens” renders the jury selection system arbitrary and discriminatory, and the indictment invalid. The test is whether the exclusion of the class would “remove from the jury room qualities of human nature and varieties of human experience,” and deprive the jury “of a perspective on human events that may have unsuspected importance. . . .” (Peters v. Kiff, supra, 407 U.S. 493, 503-504 [33 L.Ed.2d 83, 94]). Another test is whether the group excluded is “fungible” with the jury panel, whether “a community made up exclusively of one is different from a community composed of both” (Ballard v. United States, 329 U.S. 187, 193-194 [91 L.Ed. 181, 186, 67 S.Ct. 261]). Whether exclusion of a certain age group or economic group is erroneous is difficult to determine. Age groups are defined arbitrarily, and unless the size of the grand jury is substantially increased, the exclusion of some arbitrarily defined age group over a limited number of years is unavoidable. The same is true of economic groups based on wealth or job title. In order to rely on the exclusion of an age or economic unit from jury service as a challenge to the jury, the defendant should show exclusion of that group will remove from the jury significant qualities, and deprive it of important perspectives. He does not, of course, have to demonstrate actual prejudice.