Brown v. State

Dissenting Opinion

DeBruler, J.

This case requires that we decide whether the jury selection process employed by the trial court denied appellant’s right to a proper jury. Here, the trial court excused 750 persons from a panel of 1000 summoned for jury service. The jury before which appellant was tried was selected from the 250 persons remaining on the panel. The trial court described the procedure by which the reduction in the panel was accomplished:

“Mr. Foley [Defense Counsel] : How was the number reduced from a thousand to the present two hundred and fifty or so?

Court [Trial Judge] : I told you. There’s a — if you’ll look on your questionnaire, you’ll see right at the foot of it that the summonsed [sic] citizen may state any reason why he thinks or she thinks she shouldn’t — he or she shouldn’t serve, they’re automatically excused. We force no one to serve as jurors in this Court. Everyone who is called are persons who said they were willing to serve. That’s exactly how they were reduced. And, you may make — you, may at any time, make — put in, in the record, a copy of the questionnaire of all the jurors. The bailiff can furnish that. We know exactly who they are. And, that may be made a part of the record.

Mr. Foley: Thank you.

Court: That’s the way it’s done.”

The trial court was supplied with the list of 1000 names by the jury commissioners. No complaint is lodged by appellant against the manner in which this list was compiled. Each person on the list received a questionnaire. On it the question was asked as to whether the panel member desired to be excused from jury service. If the panel member asked to be excused and provided some written statement supporting such request, the court automatically, and without considering the *96 content of any such supportive statement, granted the person an excuse. Such request was made by three-fourths of the entire panel, and upon this basis alone, these members were excused by the judge.

This blanket excuse was openly and deliberately granted by the judge. None of the 250 remaining, from which appellant’s jury was selected, had requested excusal from jury service.

The Indiana Constitution guarantees to each person accused of crime, the right to a public trial by an impartial jury. Art. 1, § 13. The Legislature has established the qualifications for jurors. Ind. Code §33-4-5-7 (Burns 1973). These qualifications are supplied for the purpose of limiting the discretion of the jury commissioners in selecting those to comprise the court’s list of prospective jurors. The Legislature has granted exemptions to persons engaged in various occupations, i.e., policemen and firemen. Ind. Code § 18-1-11-13 (Burns 1974). Persons over sixty-five years of age are also granted exemption. Ind. Code § 33-4-5-7 . And at law, trial courts have inherent discretionary authority to excuse persons who have been placed on the list of prospective jurors from jury service. Tewell v. State, (1976) 264 Ind. 88 , 339 N.E.2d 792 ; Depew v. Robinson, (1884) 95 Ind. 109 ; Glenn v. State, (1972) 154 Ind. App. 474 , 290 N.E.2d 103 . The actual release of liability from jury service by application of an exemption or an excuse is under the control and supervision of the trial judge. Standards to be applied in releasing a prospective juror from jury service by reason of an exemption or an excuse are intended to limit the discretion of the trial judge.

The panel which appears in a court on the first morning of trial, has itself been selected through the efforts of the jury commissioners in compiling the list and of the judge in granting exemptions and excuses. The character of a jury, and thus its impartiality, is determined in part by the make-up of the panel from which it is selected. Therefore, *97 persons standing trial by jury have a strong legal interest in insuring that the jury commissioners and the courts utilize fair and reasonable standards in the panel selection process. The law must recognize this legal interest and its bearing upon the impartiality of juries, and provide protection for it.

In this case we deal with limitations upon the authority of the trial judge to grant excuses from jury service. Judicial response by this Court to date, limits this Court to a review of the exercise of such authority for an abuse of discretion only. In DePew v. Robinson, supra, we upheld the grant of an excuse to a prospective juror because that person was a witness in a cause to be tried. In Tewell, supra, we upheld the grant of an excuse because among other reasons the juror’s glasses were broken. In Glenn v. State, supra, the challenged excuse was deemed proper because the juror had back trouble and could sit for only an hour before experiencing pain. In each of these cases the court dealt with the excusing of a single juror upon individual circumstances. Here the court dealt with a group consisting of 750 persons and granted them excuse upon a highly suspect characteristic. This was an abuse of discretion, and appellant’s conviction should be reversed and a new trial granted.

A review by this Court of the grant of excuse to a large number of prospective jurors for abuse of discretion only is inadequate in light of constitutional right to an impartial jury effected by the excuse procedure. In Taylor v. Louisiana, (1975) 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 , the Supreme Court of the United States in dealing with the federal constitutional right to due process, not, I believe, at stake before us under appellant’s allegations, held that a state may, consistent with that provision grant excuses and exemptions from jury service for undue hardship, necessity and because of occupations necessary to the welfare of the community. Prior to that case in Thiel v. Southern Pacific Company, (1946) 328 U.S. 217 , 68 S.Ct. 984 , 90 L.Ed. 1181 , that Court found the exclusion of wage earners from a panel because of a conceived group hardship to be contrary to the American con *98 cept of a proper jury. The American Bar Association Standards relating to trial by jury recommend limiting the trial court in granting excuses not based upon specific exemptions to those persons who show “undue hardship or extreme inconvenience.” § 2.1 (d) And in fact, by Indiana statute applicable in counties alone having population of not less than 500,000 nor more than 600,000, the trial courts are required to grant excuse only upon consideration of individual circumstances, and upon a showing of “undue hardship, extreme inconvenience, or public necessity.” Ind. Code § 33-4-5.5 -15 (Burns 1973). It must of course be granted that the authority of the judge of the Marion Criminal Court was not subject to these statutory limitations nor the ABA Standards. However these materials have persuaded me that we should discard the vague standard of discretion in favor of something more specific.

Prentice, J., concurs.

Note. — Reported at 360 N.E.2d 830 .