Motion to Dismiss — General Dynamics Corp. v. Marshall

if

IN THE

SUPREME COURT OF

THE UNITED STATES

Term, 1978

Gr», No. 77-6553

GAZ),

Ce Ay

$5", e

“WIP WILLIAM ARRINGTON,

A

G Ayr Appellant,

a :

oo TO DISMISS

——

| RECEIViD

iitel aes 1978

OFFice OF THE CLERK

SUPREME COURT, U.S.

~_—_—

The appellee, the State of Missouri, respectfully moves that this Court

dismiss this appeal from the judgment of the Missouri Supreme Court, entered

in this action on January 9, 1978, on the grounds set forth herein.

OPINION BELOW

The opinion of the Missouri Supreme Court is reported at 559 S.W.2d

749 (Mo.Banc 1978). A copy of that opinion appears in appellee's Appendix A.

JURISDICTION

On January 9, 1978, the Missouri Supreme Court issued an opinion affirming

the appellant's conviction for murder in the second degree and robbery in the

first degree. Thereafter, appellant filed a timely notice of appeal to this

Court under Supreme Court Rule 11(1) with the Missouri Supreme Court on February

24, 1978. Said notice of appeal was docketed in this Court on April 11, 1978.

Appellant failed to comply with Supreme Court Rule 13(1) which requires the

0 appellant to docket the case "Not more than ninety days after the entry of the

judgment appealed from... ." Although the appellant filed a motion to proceed

in forma pauperis, he nowhere explains the reason for the delay in docketing.

While it is true that Supreme Court Rule 13 is not jurisdictional, as

announced in Johnson v. Florida, 391 U.S. 596 (1968), and that this

Court has authority to review this case, it should not in view of the

fact that no good cause has been shown for the appellant's failure to

comply with the Supreme Court Rules. See the case of Pittsburgh Towing Co. v.

Mississippi Valley Farge Line Co., et al., 385 U.S. 32 (1966), where this

court granted a motion to dismiss for failure to comply with Supreme Court

Rule 13(1).

The appellant appears confused as to whether he is proceeding by direct

appeal or upon a writ of certiorari. He claims jurisdiction is in this

court pursuant to 28 U.S.C. § 1257(2) dealing with direct appeals, but claims

that his appeal is timely under Supreme Court Rule 22(2), which deals with

writs of certiorari. As to the latter assertion, the appellant is incorrect

as he is attempting to gain review of a judgment of "a state court of last

resort in a criminal case" and thus would be proceeding under Rule 21(1), not

22(2) relating to judgments of courts of appeals. In any event, the rules

relating to writs of certiorari have no direct applicability to a direct

appeal under 28 U.S.C. § 1257(2).

The appellant alleges jurisdiction is in this court pursuant to 28 U.S.C.

§ 1257(2) which provides that

"Final judgments or decrees rendered by the highest

court of the State in which a decision could be had, may

be reviewed by the Supreme Court as follows:

"(2) By appeal, where is drawn in question the

validity of a statute of any state on the ground of its

being repugnant to the Constitution, treaties or laws

of the United States, and the decision is in favor of

its validity."

However, nowhere in appellant's jurisdictional statement, nor in the

body of his appeal, does he inform this Court of what statute is allegedly

repugnant to the Constitution in this case. Rather, appellant alleges that

the Missouri Constitution, art. I, § 22 (b), which he does quote from,

violates the Sixth and Fourteenth Amendments to the United States Consti-

tution. Such is not in conformity with either 28 U.S.c. § 1257(2) nor with

this Court's mandate in Supreme Court Rule 15(1) (b) (v).

this appeal, appellee respectfully requests this Court to dismiss the

appeal.

For appellant's failure to show jurisdiction in this Court to hear

QUESTION PRESENTED

Was the appellant's right to a fair trial denied because the

Missouri Constitution gives women the right to avoid jury duty by

requesting an exemption?

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Sixth Amendment and the Fourteenth Amendment

to the United States Constitution as well as art. I, § 22(b) of the

Missouri Constitution. These Constitutional provisions are set out below.

"AMENDMENT VI--JURY TRIAL FOR CRIMES, AND

PROCEDURAL RIGHTS

"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, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for his

defense,"

"AMENDMENT XIV.--CITIZENSHIP ; PRIVILEGES AND IM-

MUNITIES; DUE PROCESS; EQUAL PROTECTION;

APPORTIONMENT OF REPRESENTATION; DISQUALI-

FICATION OF OFFICERS; PUBLIC DEBT; ENFORCE-

MENT

"Section 1. All persons born or naturalized in the

United States, and Subject to the jurisdiction thereof , are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection

of the laws.

“Section 2, Representatives shall be apportioned among

the several States according to their respective numbers, count-

ing the whole number of persons in each State, excluding Indians

not taxed. But when the right to vote at any election for the

choice of electors for President and Vice President of the

United States, Representatives in Congress, the Fxecutive and

Judicial officers of a State, or the members of the Legislature

thereof, is denied to any of the male inhabitants of such State,

being twenty-one years of age, and citizens of the United States,

or in any way abridged, except for participation in rebellion,

or other crime, the besis of representation therein shall be

reduced in the proportion which the number of such male citizens

shall bear to the whole number of male citizens twenty-one years

of age in such State.

“Suction 3. No person shall be a Senatcr or Representative

in Congress, or elector of President and Vice President, or hold

any office, civil or military, under the United States, or under

any State, who, having previously taken an oath, as a morber of

Congress, or as an officer of the United States, or as 4 member

of any State legislature, or as an executive or juticial officer

of any State, to support the Constitution of the United States,

shall have engaged in insurrection or rebellion against the sam,

or given aid or comfort to the enemies thereof. But Congress

may by a vote of two-thirds of each House, remove such disability.

"Section 4. The validity of the public debt of the United

States, authorized by lew, including debts incurred for payment

of pensions and bounties for services in suppressing insurrection

or rebellion, shall not be questioned. But neither the United

States nor any State shall assum or pay any debt or obligation

incurred in aid of insurrection or rebellion against the United

States, or any claim for the loss or emancipation of any slave;

but all such debts, obligations and claims shall be held illegal

and void,

"Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article."

Missouri Constitution, art. I:

"Section 22(b). Famle jurors--optional exemption. --No

citizen shall be disqualified from jury service because of sex,

but the court shall excuse any woman who requests exemption

therefrom before being sworn as a juror.”

STATEMENT

The appellant William Arrington was convicted of murder in the

second degree and robbery in the first degree. The trial began on April

12, 1976, in Jackson County, Missouri. After the jury was impaneled,

defense counsel objected to the jury panel on the basis that appellant

was denied due process by the fact that the Missouri Constitution and

statutes allow the exclusion of femles because of their gender. Defense

Counsel asked that the jury be quashed and a new panel drawn. Said objec-

tion was overruled. The verbatim colloquy between defense counse] and

the court is as follows:

"MR. MERRITT: Juige, T have one objection to the

jury panel. T believe that the client would be denied

due process by the fact that our Missouri Constitution

and statutes allow the exclusion of females fran jury

duty because of their gender. I believe that that is a

denial of due process and ask that the jury be quashed

and a new jury panel drawn on the basis of non-exclusion

of an identifiable group of the populace.

“THE COURT: Overruled,"

Defense counsel did not request a hearing on the question of exclusion of

females, nor did he mke any offer of proof,

The appellant's conviction was appealed to the Missouri Supreme Court

and on June 9, 1978, the Missouri Supreme Court affirmed appellant's convic-

tion on the grounds that no evidence was offered at trial on vhis point.

In addition, the court stated that the challenged constitutional provision

had recently been upheld in State v. Duren, 556 S.W.2d 11 (Mo.Ranc 1977),

(That case is before this Court on a writ of certiorari, No. 77-6067),

"F.

I.

THE FEDERAL QUESTION SOUGHT TO BE REVIEWED IN THIS CASE

WAS NOT PROPERLY RAISED, AND THE AFFIRMANCE OF APPELLANT'S

CONVICTION RESTS ON AN ADEQUATE NON-FEDERAL BASIS, AND THERE-

FORE APPELLANT'S APPEAL SHOULD BE DISMISSED.

1. The question sought to be reviewed was not properly raised.

The appeal in this case does not present a substantial federal question

for the reason that the federal question sought to be reviewed was not properly

raised. The appellant in this case made only a general objection to the mke-

up of the jury venire, i.e., that the Missouri Constitution and statutes

allowed the exclusion of famles because of their gender. Defense counsel

did not request a hearing during which he could have presented evidence to

substantiate his allegation nor did he proffer an offer of proof to substantiate

his challenge to the jury venire.

2. Failure to properly raise this issue means affirmance of appellant's

conviction rests on a non-federal basis.

The failure of appellant to produce any proof at trial on the issue of

the exclusion of women from the jury venire means that the Missouri Supreme

Court jucignent in this case rests on an adequate non-federal basis. The law

in Missouri is clear that the burden is on the appellant to sustain his claim

that a jury venire is not composed of a fair cross section of the community.

State v. Amerison, 399 S.W.2d 53 (Mo. 1966). And appellant's assertions

alone will not sustain his burden of proof. State v. Mooring, 445 S.W.2d 303

(Mo. 1969); State v. Conley, 541 S.W.2d 4 (Mo.Ct.App. at K.C. 1976). When

facts are not presented in the record, there is insufficient evidence to

sustain a challenge to the jury venire. State v. Morrison, 545 5.W.2d 376

(Mo.Ct.App. at K.C. 1976).

Thus, appellant's failure to produce any evidence on this issue at trial

renders his claim of error unpreserved. As indicated by the Supreme Court

in its opinion in this case, appellant's failure to produce evidence on this

question would, alone, be sufficient to affirm his conviction.

IT,

THIS APPEAL SHOULD NOT RE CONSIDERED AS A PETTTION FOR A

WRIT OF CERTIORARI BECAUSE THE APPELLANT HAS FAILED TO COMPLY

WITH THE SUPREME COURT “ULES DEALING WITH SUCH PETITIONS, SPDCIFT-

CALLY SUPREME COURT RULES 22(2) (a) (f) and 23(4), AND FOR THE

FURTHER REASON THAT THE MISSOURI SUPREME COURT'S DECISION IN

STATE V. ARRINGTON IS NOT IN CONFLICT WITH THIS COURT'S DECISION

IN TAYLOR V. LOUISIANA, 419 U.S. 522 (1975).

Appellee requests that this Court decline to exercise its discretion

to consider appellant's faulty appeal as a petition for a writ of certiorari

because, considering appellant's petition as one for certiorari, the appellant

has failed to camply with Supreme Court Rule 23(d), in that he has failed to

set out verbatim the statutes pertaining to the jury selection system in

Jackson County, Missouri, wherein he was tried. Also, despite the fact

that appellant raised an objection to the jury venire, it was not properly

raised and there was no offer of proof to substantiate his challenge,

and so appellant has failed to conform with Supreme Court Rule 23(f).

In light of the fact that under Supreme Court Rule 23(4) “the failure

of the petitioner to present with accuracy, brevity, and clearness,

whatever is essential to a ready and adequate understanding of the

points requiring consideration will be a sufficient reason for denying

his petition,” appellee respectfully requests this Court to decline to

consider appellant's petition as one for a writ of certiorari.

Furthermore, the Missouri Supreme Court did not decide the instant

case in “a way probably not in accord with applicable decisions of this

Court." The case relied on by the appellant, Taylor v. Louisiana, 419 U.S.

522, 537 (1975), was a case controlled by a set of facts which rendered the

jury venire in that case “almost totally mle." In such a situation, the

jury venire would not represent a fair cross section of the community, and

thus would violate the Sixth Amendment to the Constitution, which has been

made applicable to the states through the Fourteenth Amendment.

The appellant in this case presented no facts from which the Missouri

Supreme Court could consider the operation of the Jackson County jury system,

or from which this Court could find a constitutional infirmity. As there

is no evidence, there is no way this Court could ascertain whether the jury

selection system operated substantially the same as, or different than, the

one considered in Taylor v. Louisiana, supra. Thus this Court would be

unable to determine any conflict between the Missouri Supreme Court decision

and this Court's decision in Taylor.

CONCLUSION

For the above-stated reasons, this appeal should be dismissed.

Respectfully submitted,

JOHN ASHCROFT

Attorney General

Pauwd Borat Osta ry PLR, M. Keppe

PAUL ROBERT OTTO

Assistant Attorney General

KATHRYN MARIE KRAUSE

Assistant Attorney General

Of Counsel

Supreme Court Building

Jefferson City, Missouri 65101

(314) 751-3321

ATTORNEYS FOR APPELLEE