State v. Pelican

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-260


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Terrance L. Pelican                          Unit No. 2, Franklin Circuit

                                             March Term, 1990


George T. Costes, J.

Howard E. Van Benthuyson, Franklin County State's Attorney, and Jo-Ann
   Gross, Deputy State's Attorney, St. Albans, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate
   Defender, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     DOOLEY, J.   This is an interlocutory appeal, pursuant to V.R.A.P.
5(b), from an order of the district court denying defendant's motion to
strike the jury panel.  We affirm.
                                    I.
     Defendant is charged with second degree murder.  On March 24, 1989,
defendant filed a pretrial motion to strike the jury panel, arguing that
the jury selection procedures in Franklin County result in jury venires
which substantially misrepresent the community in terms of age, occupation
and economic status in violation of his constitutional and statutory rights.
Three witnesses testified at the evidentiary hearing on the motion.  The
first witness, the County Clerk of the Franklin Superior Court and member of
the Franklin County Jury Commission, described the jury selection process in
Franklin County.  The second witness was qualified as an expert in the field
of data analysis.  He compared certain characteristics of a group of 320
potential jurors with the characteristics of the Franklin County population
as a whole.  The final witness was qualified as an expert in the field of
sociology, and he testified to the social significance of this comparison.
     Based upon the testimony of these three witnesses, the court made the
following findings.  The Franklin County Jury Commission (Commission) com-
poses a "Master List" of 1500 names of potential jurors who are randomly
drawn from the voter registration lists of towns within the county and a
list of residents over eighteen years old with a driver's license.  The
Master List provides the names of potential jury panels and is updated every
two years.  One thousand names are selected from the voter list (which
contains approximately 22,000 names), and the remaining five hundred are
selected from the license list (which contains approximately 21,000 names).
The names of potential jurors for the Master List were selected in
accordance with the Rules of the Court Administrator entitled Rules
Governing Qualification, List, Selection and Summoning of All Jurors
(hereinafter, Rules).  Once the Master List of 1500 names was complete, the
Commission assigned a number to each name.  Tags were marked with these
numbers and deposited in a rotating canister called a "wheel."  When the
Franklin District Court requested jurors, the Commission would draw at
random 200 to 250 tags from the wheel in order to extract a pool of 150
qualified jurors.  Once the tags were pulled and matched with the
corresponding names, those people were sent jury questionnaires.  In
response to its requests, the Franklin District Court Clerk received a list
of 142 qualified jurors in July of 1988 and a list of 147 qualified jurors
in January of 1989.  These two pools were the source from which defendant's
jury panel was to be drawn.
     Defendant's data-analysis expert examined 320 jury questionnaires to
determine the composition of the jury pool.  He analyzed the pool and the
population of Franklin County with respect to age, gender, marital status,
occupational status and educational attainment.  No significant statistical
disparities were found with respect to gender, marital status, education and
occupation.  Only 240 questionnaires contained information relating to the
age of the potential juror, and they revealed the following.  In the age
group of 18-to-20-year-olds, .5% (one juror was age 20) of the jury pool
was in that group as compared to an estimated 7% of the community in that
group.  In the age group of 18-to-24-year-olds, there were 6.2% in the pool
and an estimated 16% of that age group in the community.  Finally, in the
age group of 45 to 54, 24.2% of the jury pool were in that age group as
compared to 14.9% in the community.
     Based on the testimony, the trial court found that persons aged 18 to
24 are a distinctive group because "their attitudes are different from those
in other age groups and they behave differently than other age groups in the
areas of fertility, crime and delinquency."  The court also found that the
age group of 18-to-20-year-olds is a distinctive age group because "their
attitudes are different from other age groups in part as a result of laws
which apply to their age group and not others."  The court found, however,
that the 45-to-54-year-old age group was not a sociologically distinct
category of persons.
     The court then went on to examine the specific claim with respect to
the groups.  It found that while voter registration lists significantly
underrepresent young people, adding the driver's license list as a source
of prospective jurors increases the chance of young people being selected
to serve.  The court found no evidence that any person qualified to vote was
prevented or discouraged from registering to vote in Franklin County.  Nor
was there any evidence that any qualified person was prevented or discour-
aged from receiving a driver's license.  Nevertheless, the court found that
because one must be at least eighteen years old to be eligible to be placed
on the Master List, the selection process systematically excluded people who
are eighteen and nineteen years of age because the Master List was updated
only every two years.
     Based upon these findings, the court concluded that defendant failed to
meet his burden of proof to establish a violation of his Sixth Amendment
right to a jury drawn from a fair cross section of the community.  The court
concluded that for either 18-to-20-year-olds or 18-to-24-year-olds, defend-
ant failed to establish that members of the group were not fairly and
reasonably represented in the jury pool.  The court reached this conclusion
based on the absolute disparity between the incidence of members of the
group in the community and the incidence in the pool.  In addition, the
court concluded that defendant did not show that there is a difference
between his Sixth Amendment right to an impartial jury and his right under
the Vermont Constitution to a fair and democratic jury.  The court also held
that defendant failed to establish a violation of his right to equal
protection under the Fourteenth Amendment of the United States Constitution
and Chapter I, Article 7 of the Vermont Constitution, because he did not
prove that there was substantial under- or overrepresentation or that any
of the groups were intentionally or purposefully discriminated against.
Finally, the court concluded that defendant's statutory claims were without
merit because he failed to demonstrate that the Master List was
unrepresentative of the community.  On May 16, 1989, the court granted
defendant's motion for an interlocutory appeal under V.R.A.P. 5(b).
     Defendant's appeal is limited to the issue of age bias in the jury
selection process.  He argues that his showing of a substantial under-
representation of young people on Franklin County jury venires made out a
prima facie violation of his right to a representative jury as guaranteed
by the Vermont Constitution, by Vermont's jury selection statutes, and by
the Sixth and Fourteenth Amendments to the Federal Constitution.
                                    II.
     Before we address defendant's arguments, we must be satisfied that this
is a proper case for interlocutory review.  Under Appellate Rule 5(b)(1),
the trial judge may permit an interlocutory appeal if the defendant
establishes three elements: "(1) the ruling to be appealed must involve a
controlling question of law; (2) there must be a substantial ground for
difference of opinion on that question of law; and (3) an immediate appeal
must materially advance the termination of the litigation."  State v. Wheel,
148 Vt. 439, 440, 535 A.2d 328, 329 (1987).  Upon our own motion, this Court
may review the trial court's decision to grant permission for an inter-
locutory appeal, and if we find that any of these three elements have not
been met, we may dismiss the appeal.  V.R.A.P. 5(b)(3).  Because we were
concerned that this appeal may not have been properly granted, we requested
by entry order that defendant's brief "include a discussion concerning the
appropriateness of interlocutory review," and that the State respond to
such points in its brief.  The State, however, failed to respond to defend-
ant's arguments on this issue.  In the absence of a response by the State,
and in light of the discretion we accord to trial court decisions on inter-
locutory appeal motions, State v. McCann, 149 Vt. 147, 151, 541 A.2d 75, 77
(1987), we conclude that the elements for an interlocutory appeal have been
established and permission to appeal was properly granted.
                                  III.
     We address first the Sixth Amendment argument because it provides a
useful framework with which to analyze the remaining arguments and because
we have the benefit of extensive analysis from other state and federal
courts.  The Sixth Amendment, made applicable to the states through the
Fourteenth Amendment, provides in pertinent part:  "In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public
trial by an impartial jury of the State and district wherein the crime
shall have been committed."  In a series of relatively recent cases, the
United States Supreme Court has concluded that an impartial jury is not
provided "if the jury pool is made up of only special segments of the
populace or if large, distinctive groups are excluded from the pool."
Taylor v. Louisiana, 419 U.S. 522, 530 (1975).  Thus, the impartial jury
requirement is met only when jury venires are drawn from a fair cross
section of the community.  See Holland v. Illinois, 110 S. Ct. 803, 807
(1990); Taylor, 419 U.S.  at 527.  The Supreme Court has made clear,
however, that the fair cross section requirement "is a means of assuring,
not a representative jury (which the Constitution does not demand), but an
impartial one (which it does)."  Holland, 110 S. Ct.  at 807 (emphasis in
original).  The Constitution does not require that the jury selection
process result in jury venires that are a statistical mirror of the
community.
     In order to establish a prima facie violation of the fair cross section
requirement, the defendant must show:
          (1) that 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 underrepresentation is due to system-
          atic exclusion of the group in the jury-selection
          process.

Duren v. Missouri, 439 U.S. 357, 364 (1979).  For the reasons discussed
below, we do not believe that defendant has established that young adults
comprise a distinctive group in Franklin County; hence there is no Sixth
Amendment violation.
     The United States Supreme Court has never defined the meaning of
"distinctive group" as the term is used in Duren.  See Lockhart v. McCree,
476 U.S. 162, 174 (1986).  In the absence of a Supreme Court ruling, the
federal and state courts have developed a three-prong test to determine
whether a particular group of people is a distinctive group under the Sixth
Amendment: (1) the group must be defined and limited by some clearly
identifiable factor (such as race or sex), (2) there must be a common thread
or basic similarity in attitude, ideas or experience which runs through
members of the group, and (3) there must be a community of interest among
the members of the group to the extent that the group's interest cannot be
adequately represented if the group is excluded from the jury selection
process.  See, e.g., Ford v. Seabold, 841 F.2d 677, 681-82 (6th Cir.), cert.
denied, 109 S. Ct. 375 (1988); Barber v. Ponte, 772 F.2d 982, 997 (1st Cir.
1985), cert. denied, 475 U.S. 1050 (1986); Willis v. Zant, 720 F.2d 1212,
1216 (11th Cir. 1983), cert. denied, 109 S. Ct. 1328 (1989); State v. Rupe,
108 Wash. 2d 734, 746, 743 P.2d 210, 218 (1987).
     It is true, as defendant contends, that whether a class or group of
people is sufficiently distinct for the Sixth Amendment's fair cross section
analysis is a question of fact for the trial court.  See Willis v. Zant, 720
at 1216; Parks v. State, 254 Ga. 403, 410-11, 330 S.E.2d 686, 694 (1985).
Like all questions of fact, however, the failure to meet the basic burden of
proof with respect to that question will allow the court to rule as a matter
of law.  Thus, while Willis held that distinctiveness is a question of
fact, it added the caveat that a court may determine that a particular group
is not distinct as a matter of law.  720 F.2d  at 1217.  The issue of
whether the evidence was sufficient in this case to allow the court to find
that the age groups involved were distinctive is important because the trial
court made such findings.  If the defendant made the minimum showing to meet
his initial burden, we must defer to the trial court's finding.
     With few exceptions, both state courts, see, e.g., Thomas v. State, 443 N.E.2d 1197, 1199 (Ind. 1983); Ford v. Commonwealth, 665 S.W.2d 304, 308
(Ky. 1983);  Commonwealth v. Szczuka, 391 Mass. 666, 671, 464 N.E.2d 38, 42
(1984); State v. Perkins, 219 Neb. 491, 497, 364 N.W.2d 20, 25 (1985); State
v. Rupe, 108 Wash. 2d  at 747-48, 743 P.2d  at 218, and federal courts, see,
e.g., Ford v. Seabold, 841 F.2d  at 682 (ages 18-29 is not a distinctive
group); Anaya v. Hansen, 781 F.2d 1, 3 (1st Cir. 1986) (ages 18-24 is not a
distinctive group); Barber v. Ponte, 772 F.2d  at 998 (ages 18-34 is not a
distinctive group); Cox v. Montgomery, 718 F.2d 1036, 1038 (11th Cir. 1983)
(ages 18-30 is not a distinctive group); Davis v. Greer, 675 F.2d 141, 146
(7th Cir. 1982) (ages 18-21 is not a distinctive group), cert. denied, 459 U.S. 975 (1982); United States v. Kirk, 534 F.2d 1262, 1278 (8th Cir. 1976)
(age 18-20 is not a distinctive group), cert. denied, 430 U.S. 906 (1977),
have held that age, by itself, is an insufficient bench mark to establish a
distinctive group.  There are relatively few cases or law review commentary
to the contrary.  See People v. Mora, 190 Cal. App. 3d 209, ___, 235 Cal. Rptr. 340, 347-50 (1987); People v. Bartlett, 89 Misc. 2d 874, ___, 393 N.Y.S.2d 866, 871-72 (N.Y. Sup. Ct. 1977); State v. Pruitt, 95 Wis. 2d 69,
75-76, 289 N.W.2d 343, 346 (Wis. App. 1980); Zeigler, Young Adults as a
Cognizable Group in Jury Selection, 76 Mich. L. Rev. 1045, 1074-75 (1978);
Note, Young Adults: A Distinctive Group Under the Sixth Amendment's Fair
Cross Section Requirement, 19 Pac. L. J. 1519, 1541-42 (1988).
     There are three main grounds on which courts have held that age-defined
groups are not distinctive for Sixth Amendment purposes: (1) the parameters
of the group are difficult to ascertain and, as a result, varying age limits
are used in the claims; (2) the defendant has not proved that the values and
attitudes of the group are substantially different from other segments of
the community or that the values and attitudes of members of the group are
cohesive and consistent; and (3) the membership of the group is in flux.
See State v. Price, 301 N.C. 437, 445-46, 272 S.E.2d 103, 110 (1980).  On
the first ground, the Kentucky Supreme Court noted: "The terminal ages of
'young adults' defy definition, and we know of no end to the maze that could
be created by classifying jurors as young adults, middle-aged adults,
elderly adults and on and on."  Ford v. Commonwealth, 665 S.W.2d  at 308.
The Sixth Circuit Court of Appeals commented that the age limits considered
in various cases for group definitions have been essentially arbitrary.
Ford v. Seabold, 677 F.2d  at 682.  Without clear demarcations between age
groups, such a group cannot, by definition, be distinctive.
     On the second ground, the courts also base their findings in part on
the fact that young adults are not a group that has traditionally needed
special legal protection.  See, e.g., id.; Barber v. Ponte, 772 F.2d  at 999.
The Ford court cautioned that "if an age classification is adopted, the door
would be opened to countless other 'distinctive groups.'"  841 F.2d  at 682;
see also Barber, 772 F.2d  at 999 ("an endless variety of other
classifications will be entitled to similar treatment").
     We conclude that the majority holdings are well reasoned.  We are
particularly concerned that group definitions like those involved here are
arbitrary such that some attitudes of members within the group may be
greatly dissimilar, while, at the same time, many group members share
attitudes with those outside the group.  Nevertheless, we agree with the
Georgia Supreme Court that we cannot say that an age-defined group can never
be found to be distinctive.  See Parks v. State, 254 Ga. at 411, 330 S.E.2d 
at 694.  The record must, however, respond to the first two grounds for
denying that age-defined groups are distinctive.
     Although defendant in this case introduced evidence to support his
contention that young adults comprise a distinctive group, it is wholly
insufficient to overcome the presumption against his position.  The evidence
consisted of very brief and conclusory testimony of a Professor of Sociology
at the University of Vermont to the effect that persons between the ages of
18 and 24 are a "distinctive group," in part because different legal rules
may apply to persons between the ages of 18 and 21 years.  He also testified
that those within the 18-to-21-year-old group were a distinctive group.
     The testimony is much too sparse to support the trial court's findings.
First, the testimony fails to deal with whether either of the age groupings
is under- or overinclusive.  Furthermore, there is very little detail on
values and attitudes and how they might relate to jury service.  Moreover,
the testimony failed to show "a basic similarity of attitudes, ideas or
experiences among [group] members so that the exclusion prevents juries from
reflecting a cross-section of the community."  Adams v. Superior Court, 12 Cal. 3d 59, 60, 524 P.2d 375, 378, 115 Cal. Rptr. 247, 250 (1974).
     The testimony is also internally inconsistent.  If persons between the
ages of 18 and 21 are a distinctive group, they must share significant
differences from those between the ages of 21 and 24.  Yet, the expert
testimony put these dissimilar persons together in a "distinctive group."
Either those within the age range of 18-to-21-years or those within the age
range of 18-to-24-years may be a distinctive group; however, both cannot be
distinctive groups.
     Finally, the testimony involved the general findings of sociologists
around the country with no attempt to describe persons residing in Franklin
County.  The evidence must specifically describe the area from which the
jury is drawn.   See, e.g., Willis v. Zant, 720 F.2d  at 1216 (the
distinctiveness of a group for Sixth Amendment purposes depends in part on
the time and location of the trial; for example, Latins may be a distinctive
group in some communities and not in others).
     Because of the insufficiency of the evidence, we must conclude that the
trial court's findings that the two age groupings were distinctive were
clearly erroneous.  Accordingly, defendant failed to meet the first part of
the Duren v. Missouri test and his Sixth Amendment claim must fail.
     Although we have decided the Sixth Amendment claim on the first part of
the test in Duren v. Missouri, it is appropriate to note that defendant
also faces significant hurdles in meeting the other two parts of the test.
His hurdles are particularly high with respect to the third requirement  --
that there has been a "systematic exclusion of the group" which he claims is
distinctive.  The Franklin County system uses voter registration lists sup-
plemented by driver's license lists.  Voter registration lists are often
the sole or primary source used to compile jury lists in other jurisdic-
tions, and we are aware of no instance in which such reliance on these lists
has been invalidated.  See generally United States v. Cecil, 836 F.2d 1431,
1444-52 (4th Cir.) (detailed discussion of exclusively using voter
registration lists), cert. denied, 108 S. Ct. 2846 (1988).  In fact,
Congress has expressly sanctioned the exclusive use of voter registration
lists as the source for jury selection in federal courts.  See 28 U.S.C. {
1863(b)(2).  Such a system obviously excludes from jury service certain
individuals, whatever their race, gender, or age, who have not registered to
vote.  Nevertheless, Congress has determined that this use of voter
registration lists meets the Sixth Amendment's fair cross section
requirement because everyone has the opportunity to place their name on the
voter registration list and no cognizable group is systematically excluded.
See United States v. Cecil, 836 F.2d  at 1445.  The real group excluded,
therefore, is the group of persons that do not vote, and that group is not
distinctive.  The only instances in which the use of voting lists has been
invalidated are when the procedures used to extract names from the list have
been suspect.  See, e.g., Duren v. Missouri, 439 U.S.  at 370 (statute which
grants women an automatic exemption upon request is invalid).  Defendant in
this case has not attacked the methods used to extract names or exempt
persons from jury duty.  Based on the evidence, it appears that the Franklin
County selection method is more inclusive than one that relies solely on
voter registration lists.  Hence, he has failed to show that the
underrepresentation of young adults is a result of "systematic exclusion" as
required by Duren.
     Defendant has a special systematic exclusion claim with respect to
those under 21 years of age.  Because the lists are updated only every two
years, there are fewer persons in this age range as time goes on.  Even if
persons under 21 years of age were a distinctive group, we could not find
systematic exclusion of that group on this record.  This exact issue was
addressed in Hamling v. United States, 418 U.S. 87, 136-38 (1974), where
the Supreme Court held that "if the jury wheel is not discriminatory when
completely updated at the time of each refilling, a prohibited 'purposeful
discrimination' does not arise near the end of the period simply because the
young and other persons have belatedly become eligible for jury service."
The Court reasoned that periodic emptying and refilling of the jury wheel
every four years was constitutionally acceptable "in order to accommodate
the practical problems of judicial administration."  Id. at 138.  We
therefore hold that the two-year time frame employed by the Franklin County
Jury Commission does not systematically exclude those under 21 years of age.
                                    IV.
     Defendant's main argument (FN1) is that the jury selection process violates
the Vermont Constitution's right to a fair cross section under three
different provisions:  (1) Chapter I, Article 10, which guarantees a
criminal defendant the right to trial "by an impartial jury"; (2) Chapter I,
Article 12, which provides that the "right to trial by jury . . . ought to
be held sacred"; and (3) Chapter II, Article 38, which stipulates that
"great care ought to be taken to prevent corruption or partiality in the
choice and return, or appointment of Juries."
     We can dispense quickly with defendant's argument under Articles 10 and
12 of Chapter I.  Provisions identical or similar to these are in the
constitutions of most states, and they are generally held not to provide
greater rights than the Sixth Amendment to the United States Constitution.
See, e.g., State v. Anaya, 456 A.2d 1255, 1259 (Me. 1983).  In the early
case of State v. Peterson, 41 Vt. 504, 515 (1869), this Court compared the
provisions of Chapter I of the Vermont Constitution to the Sixth Amendment
to the United States Constitution and concluded that "we may infer that the
framers of our state constitution intended its provisions should be in
conformity to the federal constitution, in respect to trials by jury."  Most
recently, in State v. Murphy, 134 Vt. 106, 108-09, 353 A.2d 346, 349 (1976),
we analyzed a claim under Chapter I, Article 10 that the failure to include
jurors from outlying counties in the venire for a multi-county district
court violated the defendant's rights.  That analysis relies in large part
on federal tests -- for example, the Court found no "systematic exclusion of
classes of jurors" -- to support its conclusion that there was no violation
of Article 10.  Id.  We conclude that, at least with respect to the claims
made in this case, neither Article 10 nor 12 support a result different from
that reached earlier under the Sixth Amendment.
     That leaves only Chapter II, { 38, which defendant reads to impose
special Vermont requirements on the composition of jury venires.  He
emphasizes, in particular, the use of the words "partiality" and "great
care" to argue that use of driver's and voter's lists represents
insufficient "care" and that the statistical differences shown by the
evidence are inconsistent with a high standard of care.  For two reasons, we
reject defendant's claim.
     The first is that our case law is clear that one who challenges a jury
array in Vermont must demonstrate prejudice to prevail.  See State v. Goyet,
119 Vt. 167, 176, 122 A.2d 862, 867 (1956)("errors and irregularities in
making up a jury list do not invalidate it nor furnish grounds for challenge
to the array unless prejudice is shown to have resulted therefrom"); State
v. Pilver, 91 Vt. 310, 313, 100 A. 674, 676 (1917).  State v. Murphy applied
the prejudice requirement to a state constitutional claim.  134 Vt. at 108-
09, 353 A.2d  at 349.
     Defendant is a 41-year-old man who is charged with second-degree
murder.  We fail to see how he is prejudiced if tried by an impartial jury
that underrepresents young adults up to age 24.  Indeed, he has made no
attempt to show or argue that he is prejudiced by the makeup of the jury
venire.  Accordingly, he cannot contest the venire or array.
     Even if defendant could show prejudice, we would reject his claim.  As
noted earlier, the United States Supreme Court has held that the Sixth
Amendment does not require a representative jury, only an impartial jury.
Holland v. Illinois, 110 S. Ct.  at 807.  Reduced to its essential point,
defendant's argument here is that Ch. II, { 38 requires a representative
jury and not just an impartial jury.
     The language and interpretations of { 38, as well as the history of
jury selection in Vermont, are decidedly against defendant's position.  The
section uses the term "partiality" and never suggests any requirement that
the jury represent interests in the community.  In Isabelle v. Proctor
Hosp., 129 Vt. 500, 505, 282 A.2d 837, 840 (1971) we described the section
as ensuring that "the jury be unbiased and without prejudice toward any
party."  See also United States v. Smith, 200 F. Supp. 885, 907 (D. Vt.
1961)(Vermont Constitutional provisions, including Chapter II, { 38, require
"trial by an impartial jury") (emphasis in original), rev'd on other
grounds, 306 F.2d 596 (1962).
     Nor is our history in selecting juries consistent with defendant's
argument.  In Briggs v. Town of Georgia, 15 Vt. 61, 73 (1843), this Court
reversed a jury verdict because a member of the jury was not a landowner,
commenting that the land ownership requirement "was one that the wisdom of
all civilized countries has deemed of importance."  Up until 1967, the jury
venires were selected by town clerks from among those the clerk found to be
"mentally, morally and physically qualified."  9 V.S. ch. 73, { 1586 (1947).
These examples demonstrate that representativeness has never been the goal
of jury selection in this state.  Instead, the goal has been to find persons
who are capable of serving competently and impartially.  Defendant has not
argued that his jury will be either impartial or incompetent.  He has no
claim under Chapter II, { 38.


                                    V.
      Defendant next argues that his rights to a representative jury were
violated pursuant to Vermont's jury selection statutes.  In support of this
claim, defendant relies solely on the fact that young adults are under-
represented as proof that the list from which jurors were selected was not
"representative of the citizens of its county in terms of age," as required
by 4 V.S.A. { 952.  He also alleges that the commission failed to conduct
"continuous research for persons qualified and liable for jury service," as
mandated by 4 V.S.A. { 953(a).
     We start by noting that defendant is also precluded from relief under
this argument by his failure to show prejudice as a result of the current
Franklin County method of choosing jury venires.  Even if defendant had
shown prejudice, we would reject this claim.  Section 952 governs how the
court administrator creates rules concerning the qualifications, lists and
selection of all jurors.  Defendant has not attacked the court adminis-
trator's rules and it is clear that the jury commission complied with the
rules in formulating its Master List.  The Franklin County jury commission
relied upon both voting lists and driver's license records, as authorized
under Rule 3.  Using these two lists, it selected at random a master juror
list "containing a sufficient number of names to serve the needs of the
courts in the county," as required by Rules 6 and 7.  Finally, the com-
mission filed this master list in the office of the county clerk "prior to
the first day of July in each biennial year," as required by Rule 5.
     Defendant's claim that the commission failed to conduct continuous
research to find persons qualified and liable for jury service is also
without merit.  Section 954 specifically authorizes the jury commission to
use one master list for two years.  We cannot read the "continuous research"
requirement of { 953(a) as necessitating more frequent creation of lists in
view of the specific authorization of { 954.
     The trial court's decision to deny the motion to strike the jury panel
was correct.
     Affirmed.



                                        FOR THE COURT:



                                        ___________________________________
                                        Associate Justice



FN1.   Defendant also argued below, but not in this Court, that the
underrepresentation of young adults denied defendant equal protection of the
laws.  Defendant was 41 years old at the time he made the motion to strike
the jury panel.  In order to make out an equal protection claim from the
underrepresentation of a group on jury venires, defendant must be part of
the group which is underrepresented.  See Castaneda v. Partida, 430 U.S. 482, 494 (1977).  Since defendant is not a member of the group he argues is
underrepresented, he does not have a valid equal protection claim.