Brooks v. State

Anderson, J., delivered the opinion of the Court. On January 17, 1966, the appellant, Riley Brooks, was convicted by a jury of murder in the first degree, without capital punishment, in the Circuit Court for Anne Arundel County, Judge Matthew S. Evans presiding. Appellant was sentenced to life imprisonment. Appellant raises two contentions on appeal: 1.

That the jury by which the appellant was convicted was not drawn or impaneled in accordance with the requirements of due process and equal protection of the law. 2. That the lower court erred in refusing to grant the Defendant’s Motion for a Judgment of Acquittal of murder in the first degree. The evidence adduced at the trial established that one Idus Wimberly was shot several times by the appellant, Riley Brooks, and died as a direct result thereof. There were two divergent explanations of the occurrence.

The deceased’s widow, Myrtle Wimberly, testified that after an altercation, arising out of the deceased’s remarks to the appellant, reminding appellant that he and Coretha Thomas were not married, and the deceased’s ordering of the appellant from the deceased’s house, while threatening him with a raised chair, the appellant drew a gun ⁴⁸⁸ and shot the deceased several times. Appellant’s version was that after Mrs. Wimberly had left the room, the deceased ordered him from the house and produced a pearl handled gun which appellant successfully wrested from him only to be confronted by another gun which the deceased then withdrew from under his mattress, which allegedly was the same gun used earlier in the day by the deceased to shoot at one Dreece Green, thus compelling the appellant to begin firing at the deceased in self-defense. Appellant further testified that as he fled from the deceased’s residence shots were fired at him. Appellant testified that he disposed of his weapon somewhere along Fort Meade Road.

The record before us indicates that on July 5, 1965, a picnic was held at the home of Idus and Myrtle Wimberly, on Elk-ridge Landing Road, Anne Arundel County, Maryland. Riley Brooks, Coretha Annette Thomas, Mrs. Wimberly’s niece, and her six children arrived at the Wimberly residence. Also present were Dreece Roberta Green, William H. Boone, Joe McKen, Beulah McKen, Mr. and Mrs. George M. Davis and their five children. Later, Idus Wimberly, William H. Boone and George M. Davis drove to the Elkridge Liquor Store, where Idus Wimberly purchased two fifths of whiskey and they returned to the picnic.

After everyone ate, Idus Wimberly and some of the children were outside, when the children began teasing him, calling him “Mr. Wimpy,” causing him to become very upset. This incident precipitated an altercation between Idus Wimberly and George Davis. Subsequent thereto, Idus Wimberly appeared to have calmed down and entered the house-expressing his intention to lie down. Shortly thereafter, he emerged firing a gun and ordered everyone off his property.

He then sought out George Davis and later fired at Dreece Green. Following the shooting, everyone with the exception of JoeMcKen, Beulah McKen and Mr. and Mrs. Wimberly went to the home of Riley Brooks, the appellant. Appellant then telephoned the Wimberly residence, talked with Mrs. Wimberly and then returned to the Wimberly place. He entered into a conversation with the Wimberlys culminating in an altercation and the subsequent shooting and death of Idus Wimberly. ⁴⁸⁹ I Appellant’s contention that there was an extreme variation between the number of Negro and white jurors, thus raising the presumption of discrimination against the Negro race in the selection of the jury and the consequential violation of the constitutional rights of the appellant, is predicated upon the premise that once this issue is raised, a prima facie case is established and the State assumes the burden of establishing that the selection system used was fairly calculated to produce a true cross section of the community.

In support of this contention, appellant relies entirely upon the cases of Clark v. Allgood, 258 F. Supp. 773 (1966) and Whites v. Georgia, 385 U. S. 545 , 87 S. Ct. 643 , 17 L. Ed. 2d 599 (1967). In Clark v. Allgood, supra, at page 776, the District Court, relying upon the Fifth Circuit Court of Appeals’ decision in Brooks v. Beto, 366 F. 2d 1 (CA 5, 1966), stated: “When the statistics show what appears to be a uniform, systematic inclusion of a token number or of a uniform number of Negroes on a jury panel, a prima facie case of discrimination is established. It is then up to the State to rebut the presumption by showing that the system used was fairly calculated to produce a cross section of the community, and that the lack of a cross section on a particular list or panel just happened to be the fortuitous result of chance.” However, the statistics upon which that Court based its findings in Clark consisted of evidence that from 1951 until 1961, a time span encompassing the ten years prior to the petitioner’s conviction, twenty consecutive grand juries had been impaneled and of those, nineteen of them, as finally impaneled, contained the name of one Negro, and one contained the names of two Negroes. It was also noted that the happenstance of mere chance, producing that outcome if the above had been drawn by lot, “would be less than one in ten thousand.” The evidence presented clearly showed that “the commissioners intentionally placed a limited number of Negroes’ names thereon in order that the Negroes would not be entirely excluded from the venire list.” ⁴⁹⁰ In Whitus v. Georgia, supra, the Supreme Court found sufficient proof that Georgia had employed the same procedures which had concededly resulted in discrimination in the first trial of the petitioners and thus “constituted a prima facie case of purposeful discrimination” in the selection of the grand and petit juries involved in the second trial of the petitioners.

The Supreme Court noted at page 550 that: “The burden is, of course, on the petitioners to prove the existence of purposeful discrimination, Tarrance v. Florida, 188 U. S. 519 (1903). However, once a prima facie case is made out the burden shifts to the prosecution.” The proof relied upon by the Supreme Court in Whitus developed from the following facts at pages 550-551: “It is undisputed that the 'revised’ jury list was made up from the 1964 tax digest, the old jury list and the personal acquaintance of the commissioners with persons in their respective communities. It is admitted that the old jury list had been condemned as illegal by the Court of Appeals when it reversed petitioners’ first convictions. It is conceded that 27.1% of the taxpayers in the county are Negroes; that the county had a population in 1960 of 10,206 people over the age of 21 years, of whom 4,706 were male, with 2,004, or 42.6% of this latter number being Negroes; that 33 prospective jurors were drawn for grand jury service for the term of court during which petitioners were indicted, three being Negroes, of whom one actually served on the grand jury of 19 persons; that a venire of 90 persons was used for the selection of the petit jury which tried petitioners, of which number at least seven were Negroes; and, that no Negro was accepted on the petit jury. “Furthermore, it is obvious that the 1964 tax digest was required to be made under the same segregated system as were the previous digests, and suffered the same deficiency.

Indeed, the State employed the same ⁴⁹¹ procedure which it concedes resulted in discrimination in the petitioners’ first trial.” The constitutional principle enunciated in Whitus had a long somewhat staccato evolution but is possessed of deep roots in our juridical heritage. Our careful review of the authorities evidences a clearly delineated tracing of the original pronouncement regarding the intent and ambit of the Fourteenth Amendment in the historic Slaughter-House Cases to the current body of law surrounding the instant issue. This distinct, tenacious fibre has interwoven itself into each subsequent opinion until through the careful process of stare decisis one is currently appraised of the ruling in Whitus and the subsequent decisions hereinafter noted. In tracing this evolutionary process, in an attempt to establish a historical precedent interpretable as a guide to the current posture of the law governing the issue of jury discrimination and the prerequisite prima facie evidence of same, a careful review of the origins of this doctrine produced the following cases of note.

In The Slaughter-House Cases, 83 U. S. (16 Wall.) 36 , 21 L. Ed. 394 (1872), the Supreme Court considered the proposition : “Can any exclusive privileges be granted to any of its citizens, or to a corporation, by the legislature of a State?” Therein, the Court was initially defining the true spirit and meaning of the Thirteenth, Fourteenth and Fifteenth Amendments of the Constitution of the United States stating at page 67: “We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members.” The Court went oil to express its opinion of the spirit and purpose, and to some extent the meaning of the above amend ⁴⁹² ments. It observed that of the first twelve amendments eleven were “practically contemporaneous” with the adoption of the Federal Constitution and the adoption of the twelfth in 1803 made it with the others “historical and of another age.” The Court then noted that the history surrounding the then recently adopted Thirteenth, Fourteenth and Fifteenth Amendments “is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt.” There followed an historical analysis of the background to the above amendments, “as that history relates to the general purpose which pervades them all.” The Court’s attention was focused upon the intent and ambit of the Fourteenth Amendment, noting that Dred Scott v. Sandford, 60 U. S.

(19 How.) 393 , 15 L. Ed. 572 (1856) was effectively overturned by observing that the Fourteenth Amendment’s “main purpose was to establish the citizenship of the negro * * While directing its interest to the “privileges and immunities” section, the Court through its thorough treatment of the entire subject matter permanently etched upon the law that these amendments viewed in their historical context predicated that “* * * no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” (p. 71). Seven years later, in Strauder v. West Virginia, 100 U. S. 303 , 25 L. Ed. 664 (1879), the Court reviewed a statute of West Virginia controlling the selection of jurors, which read: “All white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided.” (p. 305). In finding the statute violative of the Fourteenth Amendment, the Court, drawing upon the Slaughter-House Cases, •stated that the Fourteenth Amendment “was designed to assure to the colored race the enjoyment of all the civil rights that ⁴⁹³ under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.” (p. 306) > To fulfill this purpose, the Fourteenth Amendment “is to be construed liberally, to carry out the purposes of its framers.” (p. 307). The ordained purpose is but a declaration “* * * that the law in the States shall be the same for the black as. for the white; that all persons, whether colored or white, shall stand equal before the laws * * While commenting that this, amendment is directed toward the colored race the court noted! the ambit of same is inclusive of whites also observing that “* * * if a law should be passed excluding all naturalized Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the amendment.” (p. 308).

The “aim was. against discrimination because of race or color” and “its design was to protect an emancipated race, and to strike down all possible legal discrimination against those who belong to it.” (p. 310). The Court went on to state at page 310: “The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property.

Any State action that denies this immunity to a colored man is in conflict with the Constitution.” Having commented upon the purpose and qualitative importance of a jury and the essentiality of its non repugnance to the principle enunciated in the Fourteenth Amendment, the Court stated at page 308: “The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose ⁴⁹⁴ rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.” Quoting Blackstone, the Court noted this right is the “grand bulwark of his liberties.” The Court found that the petitioner “was entitled to immunity from discrimination against him in the selection of jurors, ■because of their color * * *” and there were “sufficient facts to exhibit a denial of that immunity, and a denial by the statute daw of the State.” (p. 312). That same year, in Virginia v. Rives, 100 U. S. 313 , 25 L. Ed. 667 (1879), the Court, discussing jury selection, stated -at pages 322-23: “It is a right to which every colored man is entitled, that, in the selection of jurors to pass upon his life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them because of their color.” -’However: “A mixed jury in a particular case is not essential to the equal protection of the laws, and the right to it is not given by any law of Virginia, or by any Federal statute. It is not, therefore, guaranteed by the Fourteenth Amendment * * In Ex Parte Virginia, 100 U. S. 339 , 25 L. Ed. 676 (1879), :a judge had been indicted, in his capacity as the legal officer ■charged with selection of jurors, in that in 1878 he “did then ■and there exclude and fail to select as grand and petit jurors certain citizens ’* * *, of African race and black color, said ■citizens possessing all other qualifications prescribed by law, * * * on account of their race, color, and previous condition •of servitude, and for no other reason * * *.” (p. 340).

In rejecting the contention that the Fourteenth Amendment is a direct interference by the Federal government with State rights, the Court noted that that amendment was addressed to the ■'.States and stated at page 346-47: ⁴⁹⁵ “It is said the selection of jurors for her courts and the administration of her laws belong to each State; that they are her rights. This is true in the general. But in exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power. Her rights do not reach to that extent.” Furthermore: “A State acts by its legislative, its executive, or its judicial authorities.

It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws.” The Court further elaborated upon its rejection of petitioner’s contention that the Fourteenth Amendment unconstitutionally invaded State rights by quoting Chief Justice Taney’s statement “that a power vested in the United States to inflict any punishment for neglect or refusal to perform the duty required by the act of Congress ‘would place every State under the control and dominion of the general government, even in the administration of its internal concerns and reserved rights’.” (p. 347). And observed, “[b]ut the Constitution now expressly gives authority for congressional interference and compulsion in the cases embraced within the Fourteenth Amendment.” (p. 348). Therefore, a State statute cannot bestow the authority “when selecting jurors, from whom a panel might be drawn * * *, to exclude all colored men merely because they were colored.” (p. 348).

In Neal v. Delaware, 103 U. S. 370 , 26 L. Ed. 567 (1880), the Court found a prima facie case of denial of the equal protection of the laws guaranteed by the Fourteenth Amendment and reversed, stating at page 397: “The showing thus made, including, as it did, the fact (so generally known that the court felt obliged to take judicial notice of it) that no colored citizen ⁴⁹⁶ had ever been summoned as a juror in the courts of the State,—although its colored population exceeded twenty thousand in 1870, and in 1880 exceeded twenty-six thousand, in a total population of less than one hundred and fifty thousand,-—-presented a prima facie case of denial, by .the officers charged with the selection of grand and petit jurors, of that equality of protection which has been secured by the Constitution and laws of the United States. It was, we think, under all the circumstances, a violent presumption which the State court indulged, that such uniform exclusion of that race from juries, during a period of many years, was solely because, in the judgment of those officers, fairly exercised, the black race in Delaware were utterly disqualified, by want of intelligence, experience, or moral integrity, to sit on juries.” In Norris v. Alabama, 294 U. S. 587 , 55 S. Ct. 579 , 79 L. Ed. 1074 (1935), the Supreme Court, speaking through Mr. Chief Justice Hughes, quoted at page 589, Carter v. Texas, 177 U. S. 442, 447 , 20 S. Ct. 687 , 44 L. Ed. 839 (1900), regarding exclusion from grand jury service: “Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution oí a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States. Strauder v. West Virginia, 100 U. S. 303 , 25 L. Ed. 664 ; Neal v. Delaware, 103 U. S. 370, 397 , 26 L. Ed. 567, 574 ; Gibson v. Mississippi, 162 U. S. 565 , 16 S. Ct. 904 , 40 L. Ed. 1075 .” The Court noted the above principle is “equally applicable to a similar exclusion of Negroes from service on petit juries.” The Court found that a prima facie case was established by the evidence noted at page 591 that: ⁴⁹⁷ “* * * ‘in a long number of years no negro had been called for jury service in that county/ It appeared that no negro had served on any grand or petit jury in that county within the memory of witnesses who had lived there all their lives. Testimony to that effect was given by men whose ages ran from fifty to seventy-six years.

Their testimony was uncontradicted. It was supported by the testimony of officials. The clerk of the jury commission and the clerk of the circuit court had never known of a negro serving on a grand jury in Jackson county. The court reporter, who had not missed a session in that county in twenty-four years, and two jury commissioners testified to the same effect.

One of the latter, who was a member of the commission which made up the jury roll for the grand jury which found the indictment, testified that he had ‘never known of a single instance where any negro sat on any grand or petit jury m the entire history of that county’.” The evidence adduced below established that the names of six Negroes were added to the end of the produced venire list after red lines were drawn to close off the list. Expert testimony established that “these names were superimposed on the red lines, that is, that they were written after the lines had been drawn.” There was no rebuttal evidence on this point. Other evidence established that “col.” was placed next to the names of the colored candidates on the preliminary list of potential jurors. The thrust of the rebuttal was by three jury commissioners to the effect that Negroes viere not excluded from the general list and that in compiling the jury roll neither race nor color were considered.

In finding that this evidence failed to rebut the “strong prima facie case,” the Court stated at page 598 that: “If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for the complete exclusion of negroes from jury service, the constitutional provision ⁴⁹⁸ —-adopted with special reference to their protection —would be but a vain and illusory requirement.” In Pierre v. Louisiana, 306 U. S. 354 , 59 S. Ct. 536 , 83 L. Ed. 757 (1939), an opinion by Justice Black, the lower court had granted petitioner’s timely motion to quash his indictment and the general venire from which the Grand Jury which indicted him and the Petit Jury Panel scheduled to try him had been drawn. The evidence relied upon was that petitioner was a Negro indicted for murder of a white man; that at least one-third of the population from whence the general venire was drawn were Negroes but no Negroes were named therein; that the state officers had “deliberately excluded therefrom the names of any Negroes qualified * * *” and had “systematically, unlawfully and unconstitutionally excluded Negroes” for at least 20 years “solely and only because of their race or color;” ergo petitioner’s constitutional rights to equal protection stood violative of the Louisiana Constitution and the Fourteenth Amendment of the Federal Constitution. Petitioner offered testimony of twelve witnesses. The State did not proffer any rebuttal.

Based upon this evidence, the trial judge quashed the Petit Jury Panel and venire, emptied and purged the selection box and refilled same wherefrom a new Petit Jury Panel was drawn composed of both whites and Negroes. However, the trial judge allowed the indictment by the former general venire drawn Grand Jury to stand. Subsequently, the Louisiana Supreme Court ruled “that the trial court’s finding of discrimination was erroneous.” The evidence adduced below, noted at page 359, established that: “* * * from 1896 to 1936 no negro had served on the Grand or Petit Juries in the Parish; that a venire of three hundred in December, 1936, contained the names of three negroes, one of whom was then dead, one of whom (D. N. Dinbaut) was listed on the venire as F. N. Dinfant; the third—called for Petit Jury service in January, 1937—was the only negro who had ever been called for jury service within the memory of the Clerk of the court, the Sheriff, or any other ⁴⁹⁹ witnesses who testified; and that there were many negro citizens of the Parish qualified under the laws of Louisiana to serve as Grand or Petit Jurors. According to the testimony, negroes constituted 25 to 50 per cent oí a total Parish population of twelve to fifteen thousand.

The report of the United States Department of Commerce, Bureau of the Census, for 1930, shows that the total Parish population was fourteen thousand and seventy-eight, 49.7 per cent native white, and 49.3 per cent negro. In a total negro population (ten years old and over) of five thousand two hundred and ninety, 29.9 per cent were classified by the census as illiterate.” The Court observed that the 1930 census reflected a 70 per cent literacy rate among the negro population and it was “established beyond question that the majority of the negro population could read and write.” Furthermore, the challenged Grand Jury was not drawn from the general venire but from a “supplemental list which itself contained no names of negroes” and the evidence was uncontradicted that “no negro had been selected for Grand Jury service in the Parish within the memory of any of the witnesses who testified on that point.” The Court viewed the evidence presented as constituting a “strong prima facie showing that negroes had been systematically excluded-—because of race—from the Grand Jury and the venire from which it was selected.” (p. 361). In Smith v. Texas, 311 U. S. 128 , 61 S. Ct. 164 , 85 L. Ed. 84 (1940), it had been adduced below that Negroes constituted more than 20% of the population and nearly 10% of the poll tax payers and that from three to six thousand Negroes were qualified by Texas statutes for grand jury service; furthermore, additional evidence encompassing the years 1931 through 1938 established, as noted at page 129, that: “* * * only 5 of the 384 grand jurors who served during that period were negroes; that of 512 persons summoned for grand jury duty, only 18 were negroes; that of these 18, the names of 13 appeared as the last name on the 16 man jury list, the custom being to se ⁵⁰⁰ lect the 12 man grand jury in the order that the names appeared on the list; that of the five negroes summoned for grand jury service who were not given the number 16, 4 were given numbers between 13 and 16, and 1 was number 6; that the result of this numbering was that of the 18 negroes summoned, only 5 ever served, whereas 379 of the 494 white men summoned actually served; that of 32 grand juries empanelled, only 5 had negro members, while 27 had none; that of these 5, the same individual served 3 times, so that only 3 individual negroes served at all; that there had been no negroes on any of the grand juries in 1938, the year petitioner was indicted; that there had been none on any of the grand juries in 1937; that the service of negroes by years had been: 1931, 1; 1932, 2; 1933, 1; 1934, 1; 1935, none; 1936, 1; 1937, none; 1938, none.” Dismissing chance and accident alone as the responsible elements for the above development and rejecting the State’s attempted rebuttal of petitioner’s prima facie case by urging that there was “no arbitrary or systematic exclusion” relying upon the testimony of two of the three commissioners to the effect that while the subject had been discussed, no Negroes had been selected, but said failure to select Negroes was, according to one commissioner, because “they did not know the names of any who were qualified and the other said that he was not personally acquainted with any member of the Negro race.” Furthermore, this testimony only accounted for “drawing 1 out of the 32 jury panels discussed in the record.” Finally, the Court observed at page 132: “What the Fourteenth Amendment prohibits is racial discrimination in the selection of grand juries. * * * If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand.” Hill v. Texas, 316 U. S. 400 , 62 S. Ct. 1159 , 86 L. Ed. 1559 (1942) followed the ruling in Neal v. Delaware, supra ( 103 U. S. 370 ), and found a prima facie case fully established ⁵⁰¹ by a showing that the jury commission had summoned members of the white race for service on the grand jury “with whom they were acquainted and whom they knew to be qualified