Redd v. Negley

785 P.2d 1098, 124 Utah Adv. Rep. 23, 1989 Utah LEXIS 163, 1989 WL 156432

Opinions

HOWE, Associate Chief Justice:

This is an appeal from the trial court’s denial of plaintiff Redd’s challenge to the jury which was selected to try this case.¹ The trial court ruled that the challenge was not made timely, as required by Utah Code Ann. § 78-46-16 (1987), and explained that plaintiff’s challenge was unsupported by any statistics and affidavits necessary to support a valid objection. Plaintiff relies exclusively on the fourteenth and sixth amendments to the United States Constitution.

Plaintiff, a full-blooded American Indian, brought this action in the Seventh Judicial District Court in and for San Juan County for injuries arising out of an automobile accident. A panel of twenty-nine prospective jurors was called, from which a jury of eight was selected. Six of the prospective jurors called did not appear in court for jury selection. The record does not show how many of these were of American Indian descent. Two of the prospective jurors who did appear were of American Indian descent. Neither of them was on the jury which was selected.

The challenge to the jury occurred in the following manner. Before the jury was sworn, in the presence of the selected jurors, plaintiff’s counsel approached the bench, whereupon a discussion occurred off the record. The court then asked both parties: “Subject to certain qualifications that we want to put on the record, gentlemen, I take it you pass [the selected jury] for cause then?” Plaintiff’s counsel responded: “Yes, your Honor, and we reserve those rights.” The jury was then sworn. Immediately after dismissing the jury for lunch, outside the presence of the jurors, the court asked plaintiff’s counsel: “Mr. Summerhays, you indicated you had something you wanted to put on the record relative to the jury?”

The record then shows that only the following unsupported and vague oral objection was presented to the trial court by counsel for plaintiff:

The Plaintiff is a full-blooded Indian Navajo. I believe the county is 40 percent Indian; but only 12.5 percent of the proposed jury panel was indeed called, which we object to as not being representative. It was a cross section of the county, and this inparticularly [sic] prejudices our client in this matter because she feels as we feel that there exists in the county prejudice regarding the Indian blood. The problem is exasperated [sic] by the fact that no Indians, your Honor, are on the final jury panel. And there should be 40 percent, which would give a minimum of three jurors who should be Indians on this jury.... The sociological impact in this county is somewhat discriminatory by whites in not exercising the need for Indians to be on the jury to protect the Plaintiffs position.

The trial court denied plaintiffs motion under Utah Code Ann. § 78-46-16(1) (Supp. 1983), which bars any challenge not made “[wjithin seven days after the moving party discovered, or by the exercise of diligence could have discovered the grounds therefor[], and in any event before the trial jury is sworn to try the case.”

It appears from the record that plaintiff objected to the jury selection prior to the swearing of the jury and that the jury was passed for cause only with the reservation that plaintiffs challenge could be later made. It does not appear that there were any means by which the races of the jurors who were called could be identified prior to their appearance on the morning of the trial. The challenge was therefore timely under Utah Code Ann. § 78-46-16(1) (1987), and the trial court erred in its ruling on that ground. See State v. Bankhead, 727 P.2d 216, 217 (Utah 1986) (“[Section] 78-46-16(1) requires that any challenge to the jury must be lodged before the jury is sworn.”).

In denying plaintiff’s motion, the trial judge explained that the objeción needed to be supported by affidavits and statistics “[a]nd then it gives the Court a chance to say[:] ‘Let’s back up and re-do it this way.’ But we haven’t had an opportunity to do so.” We agree. Plaintiffs objection cannot be viewed as anything more than an objection that there was not a proportionate number of Indians on the jury panel which would try his case. This is not a legally sufficient objection. Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690, 703 (1975). “The mere observation that a particular group is underrepresented on a particular panel does not support a constitutional challenge.” United States v. Grose, 525 F.2d 1115, 1119 (7th Cir.1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1477, 47 L.Ed.2d 743 (1976). Therefore, the error in ruling the objection untimely was harmless. The law requires only that the jury be indiscriminately drawn from among those persons eligible in the community for jury service. Hoyt v. Florida, 368 U.S. 57, 59, 82 S.Ct. 159, 161, 7 L.Ed.2d 118, 121 (1961). To establish a prima facie violation of the sixth amendment right to have an impartial jury selected from a representative cross-section of the community, the plaintiff must show:

(1) [T]hat the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process.

(Italics added); Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 587 (1979); see also State v. Tillman, 750 P.2d 546, 575 (Utah 1987).

No facts establishing the second prong of the Duren test were presented to the trial judge upon which he could sustain plaintiff’s objection. Counsel simply stated that he “believed” that the county was 40 percent Indian. His complaint that “only 12.5 percent of the proposed jury panel was indeed called” is unintelligible. His assertion that there were no Indians on the final jury panel and that there should have been 40 percent, which would be a minimum of three jurors, simply does not state an objection which the trial court could legally sustain. State v. Bernal, 137 Ariz. 421, 671 P.2d 399, 404 (1983). He did not submit an affidavit, proffer any evidence, or ask the court to take judicial notice that the county’s population was 40 percent Indian. More seriously, he focused only on the composition of the eight jurors who were to try the case and did not attempt to show that a disproportionate number of Indians had been summoned for jury duty in the county, as shown by the names on the “qualified jury wheel,” Utah Code Ann. § 78-46-13, from which jurors are drawn. Even with a balanced pool of prospective jurors from which to draw, the “roll of the dice” will occasionally produce an imbalanced panel to try a given case. Because of that fact, a prima facie case cannot be made without analyzing the races of the jurors who are in the pool for jury service as shown by the “qualified jury wheel.”

The dissent bases its conclusion that plaintiffs counsel made a prima facie case on certain language in the opinion in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson was not concerned with the problem we have in the instant case but was concerned with the exclusion of a potential juror through the use of peremptory challenges. When the language in the Batson opinion is carefully examined, it does not support the dissent’s position that a prima facie case can be established on the bare unsupported statements of counsel for a party.

The Court in Batson v. Kentucky, 476 U.S. at 95, 106 S.Ct. at 1722, 90 L.Ed.2d at 86-87, wrote:

Since the ultimate issue is whether the State has discriminated in selecting the defendant’s venire, however, the defendant may establish a prima facie case “in other ways than by evidence of long-continued unexplained absence” of members of his race “from many panels.” Cassell v. Texas, 339 U.S. 282, 290 [70 S.Ct. 629, 633, 94 L.Ed. 839] (1950) (plurality opinion). In cases involving the venire, this Court has found a prima facie case on proof that members of the defendant’s race were substantially underrepresented on the venire from which his jury was drawn, and that the venire was selected under a practice providing “the opportunity for discrimination.” Whitus v. Georgia, [385 U.S.] at 552 [87 S.Ct. at 647]; see Castaneda v. Partida, [430 U.S.] at 494 [97 S.Ct. at 1280]; Washington v. Davis, [426 U.S.] at 241 [96 S.Ct. at 2048]; Alexander v. Louisiana, [405 U.S.] at 629-31 [92 S.Ct. at 1224-26].[²] This combination of factors raises the necessary inference of purposeful discrimination because the Court has declined to attribute to chance the absence of black citizens on a particular jury array where the selection mechanism is subject to abuse. When circumstances suggest the need, the trial court must undertake a “factual inquiry” that “takes into account all possible explanatory factors” in the particular case. Alexander v. Louisiana, [405 U.S.] at 630, [92 S.Ct. at 1225, 31 L.Ed.2d at 541-42],

(Italics added.) The reference to “the ve-nire from which his jury was drawn” means the pool of jurors from which a particular jury is drawn.

In the cases cited by the court in Batson v. Kentucky, where the Court found a pri-ma facie case, concrete evidence was presented, not just counsel’s bald assertions. For example, in Whitus v. Georgia, the evidence showed that 42.6 percent of the county’s male population over age 21 was black and thus eligible for jury service. However, out of the 90-person prospective petit juror pool for the particular term of court, only 7 were black. 385 U.S. at 550, 87 S.Ct. at 646-47, 17 L.Ed.2d at 604. Similarly, in Alexander v. Louisiana, 21.06 percent of the population over 21 was black. Out of the 400 persons selected for grand jury service whose names were placed in the pool, only 6.75 percent were black. 405 U.S. at 627-28, 92 S.Ct. at 1223-24, 31 L.Ed.2d at 540. Finally, in Castaneda v. Partida, 79.1 percent of the county’s population was Mexican-American. Yet an 11-year survey showed that 870 persons were summoned to serve as grand jurors but only an average of 39 percent of them were Mexican-American. Only 50 percent of the pool from which the grand jury which indicted the defendant was drawn were Mexican-American. 430 U.S. at 486-87, 97 S.Ct. at 1276, 51 L.Ed.2d at 505-06. In People v. Harris, 36 Cal.3d , 679 P.2d 433, 438, 201 Cal.Rptr. 782, 787, cert. denied, 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984), which is relied upon by the dissent, a survey of 959 potential jurors called to serve over a 3-month period was relied upon to establish a prima facie case of underrepresentation of blacks and Hispanics. In all of those cases, as can be readily seen, the underrepresentation of minority jurors was well documented and demonstrated. Unlike those cases, this plaintiff has neither attempted to demonstrate nor even contended that there is any underrepresentation of American Indians in the qualified jury wheel from which jurors are selected to serve on juries in San Juan County.

We therefore affirm the trial court due to plaintiffs failure to establish a prima facie case. Given the bald, unsupported, and legally insufficient statements made in the challenge presented to the court, the trial judge clearly had no alternative but to deny the objection. The trial judge was correct in his observation that the objection needed to be supported by affidavits and statistics.

As an aside, it should be noted that had the trial court required the attendance of the six missing potential jurors, the imbalance which plaintiff complains about might have been rectified. Apparently, plaintiffs counsel made no motion to compel their attendance, nor did he object to proceeding without them.

Affirmed.

HALL, C.J., and STEWART, J., concur.

Footnotes

1

. This Court granted the motion for substitution of appellant Thomas E. Redd for Violet H. Redd, deceased.

2

. Whitus v. Georgia, 385 U.S. 545, 552, 87 S.Ct. 643, 647-48, 17 L.Ed.2d 599, 605 (1967); see Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498, 510-11 (1977); Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597, 608 (1971); Alexander v. Louisiana, 405 U.S. 625, 629-31, 92 S.Ct. 1221, 1224-25, 31 L.Ed.2d 536, 541-42 (1972).