Bailey v. State

GETTY, Judge. On September 20, 1984, a jury sitting in the Circuit Court for Prince George’s County (Melbourne, J.) convicted appellant Julius Sylvester Bailey (hereinafter “appellant”) of first degree (felony) murder, kidnapping, robbery and relat ⁶⁰⁰ ed offenses, rape in the first degree while armed, attempted rape in the first degree while armed, and use of a handgun in the commission of a crime of violence. Appellant was sentenced to life imprisonment plus 65 years. At sentencing, the court imposed two additional consecutive life sentences plus 270 years for unrelated crimes.

Appellant urges that the trial court erred when it: 1. denied his Motion to Quash the Indictment and Challenge to the Composition of the Grand and Petit Juries; 2. limited the cross-examination of a State witness; 3. admitted "other crimes” evidence; 4. found the evidence sufficient to support his rape-related convictions; 5. prohibited the defense from introducing evidence regarding what tests could have been conducted had certain forensic evidence been preserved; and refused to give an adverse inference instruction regarding that “missing” evidence. It was established at trial that on December 5, 1983, an employee of the Newbridge Country Club found the body of Ann Boggs, a student at Catholic University in the District of Columbia, lying on the edge of a golf course. Ms. Boggs’ clothing was disarrayed and an autopsy established that she had died as the result of being shot twice in the’ head. Sperm was found in both her vagina and rectum.

Robert Weldon, a law student, was the last person — other than the murderer — to see her alive. He testified that he saw her leave the law school at approximately 6:00 p.m. on Friday, December 2, 1983. He believed she was en route to her car, which she habitually parked in the Shrine parking lot, approximately 200 yards from the law school. The circumstantial case against appellant will be discussed in reviewing the issues he raises.

I Appellant contends that his constitutional rights were violated because the voter registration list that was ⁶⁰¹ used as the sole source for the names of his potential jurors failed to represent a fair cross section of the community. Under-representation in the jury pools of distinctive groups in the community may be challenged under either the equal protection clause of the Fourteenth Amendment, see Alexander v. Louisiana, 405 U.S. 625 , 92 S.Ct. 1221 , 31 L.Ed.2d 536 (1972), or under the right to a jury selected from a fair cross section of the community guaranteed by the Sixth Amendment. See Taylor v. Louisiana, 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975). Although this right to a jury selected from a fair cross section is also guaranteed by Md.Cts. & Jud.Proc.Code ann. § 8-102, 8-104 (1984 Cum.

Supp.), appellant’s argument is based solely upon the Sixth Amendment. We addressed the voter registration — fair cross section issue in Wilkins v. State, 16 Md.App. 587 , 300 A.2d 411 (1973), in which we reasoned that “[njeither the Constitution, nor the requirements of common sense, demand a scientifically perfect system for producing a representative cross section of the community. Nor has such a system been devised.... All that is required is a method reasonably designed to produce a jury representative of a cross section of the community.

The objective selection of names at random from registration lists as provided by Art. 51 [of the Md. Code, now Cts. & Jud.Proc.Art, Title 8] fully satisfies this requirement and commends itself to an impartial jury system.” Wilkins v. State, 16 Md.App. 587, 596-97 , 300 A.2d 411 (1973), aff'd 270 Md. 62 , 310 A.2d 39 (1973); cert. denied, 415 U.S. 992 , 94 S.Ct. 1592 , 39 L.Ed.2d 889 (1974). See also Lodowski v. State, 302 Md. 691 , 490 A.2d 1228 (1985) (reaffirming Wilkins). Since our decision in Wilkins , however, the Supreme Court has outlined a more elaborate, three part test for the analysis of fair cross section claims brought under the Sixth Amendment. In Duren v. Missouri, 439 U.S. 357 , 99 S.Ct. ⁶⁰² 664, 58 L.Ed.2d 579 (1979), the Supreme Court held that a jury selection process is prima facie violative of the Sixth Amendment upon proof that: 1) The groups alleged to be excluded are “distinctive” groups in the community; 2) the representation of these groups is not fair and reasonable in relation to the number of such persons in the community; 3) this underrepresentation is due to the “systematic exclusion” of these distinctive groups.

See Id. at 364 , 99 S.Ct. at 668 . With regard to the first criterion, appellant argues that both blacks and persons aged 18-29 are “distinctive groups.” We are persuaded by the overwhelming weight of authority that age groups are not “distinctive” for purposes of fair cross section analysis. See, e.g., Cox v. Montgomery, 718 F.2d 1036, 1038 (11th Cir.1983); United States v. Blair, 493 F.Supp. 398, 406 (Md.1980). In Hopkins v. State, 19 Md.App. 414 , 311 A.2d 483 (1973) (Gilbert, C.J.), we said: “In order for a group to be ‘cognizable’ it must be shown that the particular group has a definite composition and that membership does not shift from day to day.

The group must have cohesion. ‘There must be a common thread which runs through the group, a basic similarity in attitudes or ideas or experience which is present in members of the group and which cannot be adequately represented if the group is excluded from the jury selection process.’ United States v. Guzman, supra [ 337 F.Supp. 140 (S.D.N.Y.1972) ] at 143; Wilkins v. State, supra at 595. Moreover, the possibility must exist that the exclusion of the group from jury service will result in bias, partiality or prejudice being practiced against members of the group by juries hearing cases in which members of the group are involved. United States v. Guzman, supra at 143-146; United States v. Greenberg, 200 F.Supp. 382, 391 (S.D.N.Y.1961). The evidence in the instant case ⁶⁰³ fails to establish that the attitudes, experiences, views and objectives of persons in the eighteen to twenty-one years of age group differ to any material extent or degree from those twenty-one years of age or a few years older.

Furthermore, the appellant did not demonstrate that the rights of persons eighteen to twenty-one years old were inadequately represented or safeguarded by persons who were at that time eligible to serve as jurors.” Id. at 421 , 311 A.2d 483 (footnotes omitted). The reasoning in Hopkins is equally applicable to the facts of the case sub judice. We hold, therefore, that no prima facie claim was made with regard to the alleged underrepresentation of persons aged 18-29. Blacks, on the other hand, are a distinctive group, and hence appellant’s allegation that they are excluded by the Prince George’s County jury selection system satisfies the first prong of the Duren test.

See Peters v. Kiff 407 U.S. 493, 498-99 , 92 S.Ct. 2163, 2166-67 , 33 L.Ed.2d 83 (1972). Appellant then urges that the trial court erred in failing to find the expert testimony presented on his behalf sufficient to show that the representation of blacks in the jury pool was unfair and unreasonable in relation to the number of such persons in the community. The record shows that Dr. Richard A. Seltzer, an expert in statistical data analysis and survey research, testified that he examined one out of every 15 juror questionnaires filed in 1978-1983 and concluded that, although blacks constituted 34.7% of the population, they made up only 21.2% 1 of the jury pool for that ⁶⁰⁴ four year period. The difference between these two percentages is an “absolute disparity” of -13.5%.

We affirm the lower court’s ruling that, on the facts of this case, evidence of a -13.5% absolute disparity was insufficient to show an unfair and unreasonable underrepresentation of blacks in the Prince George’s County jury pools. 2 Although there are no precise mathematical standards for determining what level of underrepresentation is constitutionally impermissible, the absolute disparity has approached 40% in every instance in which the Supreme Court has found a Sixth Amendment fair cross section violation. See Duren, supra (39.5%); Taylor v. Louisiana, 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975) (43%); Turner v. Fouche, 396 U.S. 346 , 90 S.Ct. 532 , 24 L.Ed.2d 567 (1970) (over 40%); Casteneda v. Partida, 430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977) (40.1%). Absolute disparities higher than that shown in the case sub judice have been held “fair and reasonable” in Figueroa v. Puerto Rico, 463 F.Supp. 1212, 1215 (D.Puerto Rico 1979) (17%); and in Williams v. Dalsheim, 480 F.Supp. 1049, 1055-56 (E.D.N.Y.1979) (21%). Appellant also argues that the trial court erred in not finding the second prong of the Duren test satisfied by Seltzer’s additional testimony that the underrepresentation of blacks in the Prince George’s County jury pools reflects a “comparative disparity” of -38.9%.

We find no error. We note that “[t]he fair cross section requirement involves a comparison of the ... sources from which jurors are drawn with the makeup of the community____” Duren, supra, 439 U.S. at 366 n. 23, 99 S.Ct. at 669 n. 23. “Absolute disparity” figures, calculated by subtracting the percentage of a group represented in the jury pool from the group’s percentage in the community, are, in our view, the ⁶⁰⁵ relevant statistics for purposes of fair cross section analysis. Most federal cases agree, finding, albeit for conflicting reasons, that “comparative disparity” figures, which are calculated by dividing the absolute disparity number by the percentage of the cognizable class in the eligible population, distort the true picture. Compare United States v. Maskeny, 609 F.2d 183, 190 (5th Cir.1980) (no need to consider comparative analysis figures so long as the allegedly excluded group comprises more than 10% of the population) with United States v. Haffen, 726 F.2d 21, 24 (1st Cir.1984) (the smaller the allegedly excluded group, the less appropriate is comparative disparity analysis).

Compare United States v. Duran De Amesquita, 582 F.Supp. 1326, 1330-31 (S.D.Fla.1984) (comparative analysis will be inappropriate if the group comprises more than 10% of the community population) with United States v. Musto, 540 F.Supp. 346, 355-56 (D.N.J.1982) (comparative analysis will be inappropriate when the group at issue comprises a very small proportion of the population). Having found that appellant’s proof does not satisfy the second prong of the Duren test, we do not reach the third, which requires that the underrepresentation be due to the “systematic exclusion” of a distinct group. We point out, however, that we would reject appellant’s invitation to join those courts which allow fair cross section challengers to bootstrap their way past this criterion. See LaRoche v. Perrin, 718 F.2d 500, 503 (1st Cir.1983) (process, “however neutral on its face,” systematically excludes a group if that group is consistently and substantially underrepresented in the jury pools); People v. Harris, 36 Cal.3d 36 , 201 Cal.

Reptr. 782, 679 P.2d 433 (1984) (high absolute disparity sufficient to show that random selection from racially neutral voter lists systematically excludes blacks). The third prong of the Duren test is not mere surplusage. It is not, therefore, automatically satisfied whenever the second prong is satisfied. We think the ⁶⁰⁶ Supreme Court made it abundantly clear that proof that a distinctive group is unreasonably underrepresented in a jury pool does not mean that this underrepresentation is, ipso facto, due to the systematic exclusion of that group.

In sum, proof that only a small percentage of a group registers to vote could, in a proper case, demonstrate an underrepresentation in Maryland’s jury pools sufficient to satisfy the second prong of the Duren analysis. By itself, however, such proof would not also satisfy the third prong’s “systematic exclusion” requirement. II Appellant argues that his Sixth Amendment rights were also violated when the trial court granted the State’s motion in limine to preclude him from cross-examining Titus Peterson regarding an alleged connection between the State’s decision to nolle pros its charges against him and his willingness to testify against the appellant. Because, subsequent to the court’s decision to grant the motion in limine, appellant failed to