State v. Jenne

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. 89-409


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
William A. Jenne                             Unit No. 2, Chittenden Circuit

                                             October Term, 1990



Frank G. Mahady, J.

William H. Sorrell, Chittenden County State's Attorney, Burlington, and Gary
  S. Kessler and Rosemary Hull, Department of State's Attorneys, Montpelier,
  for plaintiff-appellee

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



PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
          Specially Assigned



     GIBSON, J.   Pursuant to V.R.A.P. 5(b), defendant appeals from the
trial court's denial of his motion to dismiss or, in the alternative, to
strike the jury panel.  We conclude that the jury-selection procedures in
Chittenden County do not violate defendant's constitutional or statutory
rights, and, accordingly, answer the question certified by the trial court
     in the negative. (FN1)
                                   I.
     Defendant is charged with causing bodily injury to another with a
deadly weapon, in violation of 13 V.S.A. { 1024(a)(2).  On April 26, 1989,
he filed a pretrial motion to dismiss or, in the alternative, to strike the
jury panel on grounds that Chittenden County's jury-selection process
violates his rights under (1) the Sixth and Fourteenth Amendments to the
United States Constitution, (2) Chapter I, articles 7, 10 and 12, and
Chapter II, {{ 28 and 38 of the Vermont Constitution, and (3) the jury-
selection statutes (4 V.S.A. {{ 952-953) and jury-selection rules 1 and 3.
     Evidentiary hearings were held on April 28, May 10 and 15, 1989.
Based upon the evidence presented, the trial court made the following
findings.  A pool of 237 potential jurors was generated from voter regis-
tration and licensed drivers lists.  Defendant's evidence drew statistical
comparisons between the pool and Chittenden County's population with regard
to age, occupation, marital status, and gender.  Data on the jury pool was
gathered from the returned juror questionnaires.  The general population
figures were derived from the 1980 census, updated where appropriate by
reliable Department of Health estimates.
     With regard to age, the following categories were used: 18 to 24; 25 to
34; 35 to 44; 45 to 54; 55 to 64; and 65 to 69.  The trial court found that
no significant statistical disparities exist for the age groupings between
25 and 64.  Both the top and bottom age categories, however, were found to
have sociologically significant statistical disparities: 3.6% of the
County's population is in the 65-to-69 category, compared to 8.9% of the
pool, an overrepresentation of 5.3%; in contrast, the 18-to-24 age grouping
represents 24.1% of the County population, but only 12.7% of the pool, an
underrepresentation of 11.4%.  Nevertheless, the court concluded that
insufficient evidence existed to warrant classifying any of the age
categories as distinctive groups within the community.
     With regard to occupation, the evidence was incomplete.  Only 131 of
the 237 people in the jury array reported their occupations in a manner use-
ful to defendant's experts and those occupations were organized into very
broad categories.  Significant statistical disparities were nevertheless
found in several categories.  The managerial and administrative category
represents 12.9% of the population, but 21.4% of the pool, an
overrepresentation of 8.5%.  Machine operators, fabricators, and laborers
represent 13.5% of the county population, but 5.3% of the pool, an
underrepresentation of 8.2%.  The court concluded the disparities were of
limited usefulness, however, because of the poor quality of the data and the
very broad nature of the occupational categories.  With respect to
educational attainment, the trial court found no significant statistical
disparities.
     The trial court found statistical disparities with respect to marital
status.  Single people represent 33.9% of the population, but only 22.4% of
the pool, an underrepresentation of 11.5%.  Married people comprise 55.3%
of the county population and 68.8% of the panel, an overrepresentation of
13.5%. (FN2) The trial court concluded, on the evidence presented, that these
disparities would be sociologically significant only in a few "family-core"
types of cases.
     Finally, with regard to gender, 51.2% of the County is female, compared
to 59.1% of the pool, an overrepresentation of 7.9%.  In contrast, 48.8% of
the county population is male, whereas 40.5% of the jury array is male, an
underrepresentation of 8.3%.  The trial court concluded that the statistical
disparities for gender are sociologically significant.
     Based upon these findings, the trial court held that (1) the proposed
categories for age, occupation, and marital status do not constitute
"distinctive groups," (2) gender is a "distinctive group," but the dispar-
ities were not sufficient to preclude a "fair and reasonable" representation
and there was no "systematic exclusion" of males or females from voters or
drivers lists, and (3) 4 V.S.A. { 953(a) was not violated because this was
the first jury chosen from a new jury pool combining both drivers' license
and voter registration lists.  The trial court subsequently granted defend-
ant's motion for permission to file an interlocutory appeal, pursuant to
V.R.A.P. 5(b).
     On appeal, defendant argues (1) that his rights under the Sixth
Amendment and the Vermont Constitution to a jury drawn from a fair cross-
section of the community are violated by the underrepresentation of young
people, blue-collar workers and less-well-educated individuals, single
people, and males; (2) that the evidence establishes a failure to take great
care to avoid jury partiality, in violation of the Vermont Constitution,
Chapter II, { 38; and (3) that the underrepresentation of young people
violates his rights under Vermont's jury-selection statutes. (FN3) We address
defendant's arguments seriatim.  Initially, however, we must address the
propriety of the interlocutory appeal.
                                   II.
     The instant case is one of forty-four that were under appeal
simultaneously.  All of them present the same certified question.  On our
own motion, we dismissed the other forty-three on grounds that a decision
on the question presented would not materially advance termination of the
litigation.  See V.R.A.P. 5(b)(3).  We denied the State's subsequent motion
to dismiss this case, however.  In its brief, the State renews its argument
that interlocutory appeal is inappropriate herein.
          Under Rule 5(b), the defendant must show three elements
          to obtain an interlocutory appeal: (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).  In State v.
Pelican, ____ Vt. ___, 580 A.2d 942 (1990), we addressed whether inter-
locutory appeal of a pretrial challenge to a jury array was appropriate, and
when the State failed to brief the issue, concluded that the trial court had
 Id. at ___, 580 A.2d  at 946.  In the instant case, the State has briefed
and argued the issue.  Although we question whether any of the three
requirements for interlocutory appeal have been established by defendant,
this is one of many cases challenging Chittenden County's jury-selection
procedures, the merits have been fully briefed and argued, and the relevant
facts underlying the appeal are not subject to change at trial.  Thus, the
dispute will not go away, and it would not serve the interests of judicial
economy to dismiss the appeal as improvidently granted, thereby requiring
the Court and counsel to prepare for argument again at some future time.
See Castle v. Sherburne Corp., 141 Vt. 157, 165, 446 A.2d 350, 354 (1982)
(suspending requirements for interlocutory appeal of a discovery order
pursuant to V.R.A.P. 2 in interests of judicial economy).  We therefore
suspend the rule and decline to dismiss the appeal.  V.R.A.P. 2; Castle, 141
Vt. at 165, 446 A.2d  at 354.
                                   III.
     The Sixth Amendment guarantees defendant, through the Fourteenth
Amendment, an impartial jury.  Pelican, ___ Vt. at ___, 580 A.2d  at 946.
"[T]he impartial jury requirement is met only when jury venires are drawn
from a fair cross section of the community."  Id.  The jury does not, how-
ever, need to be "a statistical mirror of the community."  Id.  Instead, to
establish a prima facie violation of the Sixth Amendment's fair-cross-
section requirement, 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 systematic
          exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979).  In Pelican, we adopted the
following three-prong test to determine whether a group is within Duren's
"distinctive" group requirement:
          (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.
Pelican, ___ Vt. at ___, 580 A.2d  at 947.  Whether a class or group is
"distinct" is a question of fact.  Id. at ___, 580 A.2d  at 947.  We will
defer to the trial court's finding unless it is clearly erroneous.  See id.
at ___, 580 A.2d  at 947-48.
     Vermont's constitutional guarantee to a fair cross-section, pursuant
to Chapter I, articles 10 and 12, does not, in this case, provide any
greater protection than that afforded by the federal constitution. (FN4) We have
previously held that Articles 10 and 12 generally contain no greater rights
than the Sixth Amendment.  See Pelican, ___ Vt. at ___, 580 A.2d  at 950.
The Vermont Constitution also requires a defendant to show prejudice in
order to successfully challenge a jury array.  Id.  Having reviewed the
record, we perceive no prejudice and, indeed, defendant does not show or
argue how he is prejudiced.  Although our analysis of the Vermont constitu-
tional claims could end here, see id. at ___, 580 A.2d at ____, we also
conclude defendant has failed to establish a prima facie violation of his
fair-cross-section rights.
     We first turn to defendant's contention that the underrepresentation
of young people on the jury panel violates his fair-cross-section rights.
The same argument was presented in Pelican, where we concluded the trial
court was clearly erroneous in finding young adults a distinctive group.
Id. at ___, 580 A.2d  at 948.  We did, however, add a caveat: "[W]e cannot
say that an age-defined group can never be found to be distinctive."  Id. at
____, 580 A.2d  at 948 (emphasis in original).  In the instant case, the
trial court concluded that young people do not constitute a distinctive
group.  After reviewing the evidence, we conclude that the finding is not
clearly erroneous.
     Defendant next argues that overrepresentation of middle-class
individuals results in an underrepresentation of other cognizable groups,
citing to Thiel v. Southern Pacific Co., 328 U.S. 217, 223-24 (1946) (daily
wage earners) and United States v. Butera, 420 F.2d 564, 571 (1st Cir. 1970)
(educational attainment). (FN5) The same argument was made in Anaya v. Hanson,
781 F.2d 1, 3 (1st Cir. 1986).  Anaya held that blue-collar workers and
less-well-educated individuals are not distinct groups, reasoning that
showings of mere statistical imbalances are insufficient for groups this
diverse, and that cognizability has traditionally been limited to "special
groups, like women and blacks, that have been subjected to discrimination
and prejudice within the community."  Id. at 6, 8 (emphasis in original).
We agree and therefore reject defendant's argument.
     Defendant contends that married, as opposed to single, individuals
constitute a distinct group.  The trial court disagreed, with the possible
exception of a few "family-core" type cases, an undefined category not
implicated by defendant's case.  Initially, we note that neither the defend-
ant nor our own independent research has revealed a case addressing whether
single or married individuals are a distinct group.  But none of the three
criteria for determining whether a group is distinctive are met herein.
First, married or single individuals are not defined by clearly identifiable
factors equivalent to race or gender, the two examples we used in Pelican.
See Pelican, ___ Vt. at ___, 580 A.2d  at 947.  Second, there was not suf-
ficient evidence to establish a basic similarity of attitude, ideas, or
experience for each group.  Finally, defendant has shown no community of
interest so intrinsic to these categories that the group's interest cannot
be adequately represented if it is underrepresented.  Thus, we cannot con-
clude that the trial court's finding was clearly erroneous.  In any event,
as we discuss subsequently with regard to gender disparities, defendant has
failed to establish a "systematic exclusion,"  Duren's third prong.
     With respect to gender, defendant argues that the trial court
incorrectly required him to establish a reason for the statistical dispar-
ities disclosed by his evidence. (FN6) Given a facially neutral jury-selection
method, in order to show a "systematic exclusion" pursuant to Duren,
defendant must identify an aspect of the system "'that is: (1) the probable
cause of the disparity, and (2) constitutionally impermissible.'"  People v.
Sanders, 51 Cal. 3d 471, ___, 797 P.2d 561, 570, 273 Cal. Rptr. 537, 546
(1990) (quoting People v. Bell, 49 Cal. 3d 502, 524, 778 P.2d 129, 140, 262 Cal. Rptr. 1, 12 (1989)), petition for cert. filed Feb. 26, 1991.  The 6th
Circuit stated in Ford v. Seabold, 841 F.2d 677, 685 (6th Cir.), cert.
denied, 488 U.S. 928 (1988) "that the selection of jurors from a neutral
master list, without more, [could not] be construed as 'systematic
exclusion' as defined in Duren merely because the percentage of women
selected does not precisely mirror the percentage of women in the entire
community."  Similarly, Chittenden County selects jurors randomly from a
neutral list.  Thus, the trial court correctly held that defendant failed to
establish systematic exclusion of one gender when he did not introduce any
evidence indicating that the jury commissioner "utilized a particular system
or procedure in order to exclude [a particular gender]."  Ford, 841 F.2d  at
685.
                                   IV.
     Defendant argues that the responsible officials failed to exercise
"great care," as required by Chapter II, { 38 of Vermont's Constitution. (FN7)
Section 38 guarantees defendant impartial and competent jurors, Pelican, ___
Vt. at ___, 580 A.2d  at 951, but does not guarantee defendant a represent-
ative jury.  Id.  Additionally, defendant must demonstrate prejudice in
order to mount a successful challenge pursuant to { 38.  Id. at ___, 580 A.2d  at 950.  In the instant case, defendant has failed to allege, let alone
show, that he has been prejudiced and, in any event, he "has not argued that
his jury will be either impartial or incompetent.  He has no claim under
Chapter II, { 38."  Id. at ___, 580 A.2d  at 951.
                                   V.
     Defendant argues that the degree of underrepresentation of young people
violates the standards set forth in 4 V.S.A. { 952 (FN8) and { 953(a). (FN9)
Defendant has not demonstrated prejudice and, in any event, this same argument
was rejected in Pelican.  ___ Vt. at ___, 580 A.2d  at 951.  The slightly greater
statistical disparity, in the instant case, is insufficient to distinguish
Pelican; we accordingly reject defendant's argument.  See id.
     The certified question is answered in the negative.  Remanded.



                                        FOR THE COURT:



                                        _________________________________
                                        Associate Justice




FN1.    The certified question is as follows:
     Whether the jury-selection procedures in effect in Chittenden
     County violate the defendants' state and federal constitutional
     rights to impartial juries drawn from a fair cross section of the
     community; their right under the Vermont Constitution that great
     care be taken in the choice and return of jurors; and their
     rights, under the jury selection statutes and rules, to juries
     which are representative in terms of age, gender, occupation and
     economic status.

FN2.    The county population data for single and married people totals
89.2%, leaving 10.8% of the population as unknown.  Similarly, the total of
single and married for the panel is 91.2%, leaving 8.8% unaccounted for.  At
oral argument, defense counsel suggested that the difference is comprised of
divorced individuals.  While this percentage of divorced people strikes us
as small, the disposition of the case is not affected.

FN3.    At oral argument, defendant also requested that we reconsider and
overrule State v. Pelican, ____ Vt. ___, 580 A.2d 942 (1990).  We decline to
do so and, instead, expressly reaffirm our holdings therein.

FN4.    Article 10 provides in pertinent part "[t]hat in all prosecutions
for criminal offenses, a person hath a right to . . . trial by an impartial
jury of the country . . . ."
        Article 12 provides "[t]hat when any issue in fact, proper for the
cognizance of a jury is joined in a court of law, the parties have a right
to trial by jury, which ought to be held sacred."

FN5.    We note that Butera was overruled in Barber v. Ponte, 772 F.2d 982,
996 (lst Cir. 1985).

FN6.    The trial court held that, although a close question, the gender
disparities did not affront Duren's second (fair representation) and third
(systematic exclusion) prongs.  Preliminarily, the court concluded that
genders are distinct groups, Duren's first prong.  Because we conclude that
there has been no systematic exclusion, we need not, and do not, express an
opinion on the trial court's resolution of either the distinctive-group or
fair-representation prongs.  We note, however, that neither party takes
issue with the trial court's handling of the distinctive-group prong,
although all the cases cited by the parties and the trial court involve
underrepresentation of women whereas, in the instant case, women are over-
represented.

FN7.    Section 38 provides:
          Trials of issues, proper for the cognizance of a Jury as
     established by law or by judicial rules adopted by the Supreme
     Court not inconsistent with law, in the Supreme Court, the
     Superior Court and other subordinate courts, shall be by Jury,
     except where parties otherwise agree; and great care ought to be
     taken to prevent corruption or partiality in the choice and
     return, or appointment of Juries.

FN8.    4 V.S.A. { 952 provides:
          The court administrator, subject to approval of the supreme
     court, shall make rules regarding the qualifications, lists and
     selection of all jurors and prepare questionnaires for prospective
     jurors.  Each jury commission shall, in conformity with said
     rules, prepare a list of jurors from residents of its county.  The
     rules shall be designed to assure that the list of jurors prepared
     by the jury commission shall be representative of the citizens of
     its county in terms of age, sex, occupation, economic status, and
     geographical distribution.

FN9.   4 V.S.A. & 953(a) provides:
          (a) The jury commission, in order to ascertain names of
     persons eligible as jurors, may consult the latest census
     enumeration, the latest published city, town, or village telephone
     or other directory, the listers' records, the election records and
     any other general source of names.  There shall be continuous
     research for persons qualified and liable for jury service, in
     order to obtain as many prospective jurors as necessary and in
     order to limit as much as possible repetition of jury service.  No
     person's name shall be placed on venire to serve in any state
     court of the state of Vermont more than once in any two-year
     period.