Wilkins v. State

Scanlan, J., delivered the opinion of the Court. The appellant, Ralph Edward Wilkins, was convicted by a jury in the Circuit Court for Prince George’s County of murder in the first degree. The presiding judge (Bowie, J.) sentenced him to life imprisonment. He has appealed from the judgment of conviction and the sentence imposed.

Eyewitnesses placed the appellant at the scene of the murder. Appellant also admitted being at the scene of the crime, but claimed another person had “done the shooting.” He entered pleas of not guilty and not guilty by reason of insanity. The appellant did not take the stand in his own defense. The defense offered no witness with respect to the murder charge against him.

Nor was there any testimony adduced to the effect that he was criminally insane at the time of the crime. In denying appellant’s motion for a new trial, the trial court stated “that it is very seldom that the State has a case where they nail the case down more clearly than they did in this case.” ⁵⁹¹ On his appeal, the appellant has not challenged the sufficiency of the evidence. However, he has raised a plethora of other contentions in his attack on the judgment below. Several of these raise issues of constitutional dimension; one of them presents issues of first impression in this Court; a few are troublesome; but none rise to the level of an argument sufficient to require reversal of the judgment of conviction.

In the ensuing sections of the Court’s opinion, we discuss appellant’s contentions seriatim in the order in which they were presented in his brief. I THE CHALLENGE TO THE ARRAY WAS PROPERLY DENIED Prior to trial, appellant moved to challenge the jury array contending that the exclusive use of the 1970 list of Prince George’s County registered voters for the selection of jurors denied appellant due process of law and the right to be tried by a “jury of his peers.” Appellant also attacked the constitutionality of Article 51, § 6 (b) (viii) of the Code (1972 Repl. Vol.), which bars persons “21 years of age or under” from jury service. For the reasons stated, we hold that the court below properly denied appellant’s motion challenging the array.

In 1969, Maryland adopted a uniform and comprehensive statute governing the selection of jurors throughout the political subdivisions of the State. 1 The policy which underlies the statute is set forth in its first section which reads as follows: “Whenever a litigant ... is entitled to trial by jury, he shall have the right to a petit jury selected at random from a fair cross section of the citizens of this State resident in the county ⁵⁹² wherein the court convenes . . . Whenever a person is accused of an indictable criminal offense ... , he shall have the right to a grand jury selected at random from a fair cross section of the citizens of this State resident in the county wherein the court convenes . . . All citizens of this State (1) shall have the opportunity to be considered for service on grand and petit juries in the courts of this State by maintaining their names on the roll of registered voters for State elections, . . .” (Art. 51, § 1) The statute also provides that: “No citizen shall be excluded from service as a grand or petit juror of this State on account of race, color, religion, sex, national origin or economic status.” 2 Section 4 of the jury statute requires a written plan for random selection of jurors which will achieve the objectives of the statute and comply with its detailed provisions. In accordance with the statute, the court used the 1970 list of registered voters to select the jury.

Appellant contends that this list did not represent “a fair cross section of the community,” because 43%, or 165,812, of the population of Prince George’s County who were over 21 years of age failed to register for the election held that year and thus could not qualify as jurors. The point thus raised is one of first impression in this Court, although it has been ruled upon elsewhere. 3 Article 51, § 1 incorporates the constitutional requirement that a defendant “is entitled to trial by (a) jury . . . selected . . . from a fair cross section” of the community in which he is being tried. Smith v. Texas, 311 U. S. 128, 130 (1940). It is not necessary, of course, that the jury actually selected be representative of the ⁵⁹³ community.

Thiel v. Southern Pacific Co., 328 U. S. 217, 220 (1946). However, it is a constitutional mandate that “the source of names of prospective jurors and the selection process be reasonably designed to procure a fair cross section.” United States v. Guzman, 337 F. Supp. 140, 143 (S.D.N.Y. 1972), aff’d, 12 Cr. L. 2212 (2d Cir. 1972); United States v. Van Allen, 208 F. Supp. 331, 334 (S.D.N.Y. 1962). The Supreme Court has summarized the basic constitutional prerequisite to be observed in jury selection: “The American tradition of trial by jury, . . . necessarily contemplates an impartial jury drawn from a cross-section of the community.

Smith v. Texas, 311 U. S. 128, 130 ; Glasser v. United States, 315 U. S. 60, 85 . This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society.

Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.” Thiel v. Southern Pacific Co., supra at 220. Thus, the crux of the inquiry raised by the appellant’s challenge to the array is whether use of the voter registration list produced a “systematic and intentional exclusion of any cognizable group or class of qualified citizens.” United States v. Guzman, supra at 143.

The stat ⁵⁹⁴ ute (Art. 51, § 2) identifies six classes or groups who cannot be discriminated against in the jury selection process. However, the appellant would go further. He maintains that otherwise qualified voters who failed to register to vote constitute a definite group or class who have been unlawfully excluded from service as jurors. The State argues, with considerable persuasion, that the constitutionality of using registered voters lists has been approved, impliedly at least, by the Supreme Court.

In Brown v. Allen, 344 U. S. 443, 474 (1953), the Court approved the use of property tax lists. Voter registration lists are more encompassing than property tax lists. The less affluent, members of racial and ethnic minorities, and young people appear in proportionately greater numbers on a voters’ list. In addition, the Supreme Court’s decision in Brown v. Allen, supra, arose in a context of racial discrimination, an area where the Court has been especially vigilant in protecting against discriminatory stratagems designed to exclude Negroes from jury duty.

Smith v. Texas, supra; Patton v. Mississippi, 332 U. S. 463 (1947). We could, therefore, base our holding in this case on the precedent furnished by the Brown decision. However, the precise issue raised by the appellant is a novel one and not passed upon in the Brown case. Accordingly, we move beyond the limited light shed by Brown to deal directly with the precise but different factual issue presented by the appellant’s challenge to the array in this case.

That question is: Were the otherwise eligible voters of Prince George’s County who failed to register for the 1970 election a cognizable or identifiable group or class for purposes of jury selection? If they constitute such a definitive class, use of the 1970 registered voters list systematically, if not intentionally, excluded the class from jury service. If the nonregistered voters were not a “cognizable” class, then their exclusion from jury service offended no constitutional or statutory right possessed by the appellant. For a group to be “cognizable”, the group must have a definite composition.

As Judge Metzner recently spelled it out: ⁵⁹⁵ “. . . That is, there must be some factor which defines and limits the group. A cognizable group is not one whose membership shifts from day to day or whose members can be arbitrarily selected. Secondly, 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. Finally, there must be a possibility that exclusion of the group will result in partiality or bias on the part of juries hearing cases in which group members are involved. That is, the group must have a community of interest which cannot be adequately protected by the rest of the populace.” United States v. Guzman, supra at 143-4. The appellant produced the census statistics as to the total population of Prince George’s County in 1970 and compared these figures with the number of registered voters.

However, he made no effort to demonstrate that persons, otherwise qualified, who failed to register for the 1970 election constituted a group or class of persons who showed a basic similarity “in attitudes, ideas or experience” which could not have been adequately represented in view of the exclusion of the class from the jury selection process and that the exclusion of the class resulted in partiality or bias on the part of the juries which were selected through exclusive use of the 1970 registered voters list. In the absence of proof, the appellant, in effect, is asking that the Court declare that, as a matter of law, non-registered voters constitute a cognizable group of persons in the community. This would be an abuse of our appellate functions. Moreover, in two cases where the precise issue has been decided and in which the parties challenging the array produced economic, racial, ⁵⁹⁶ sociological, demagogical and educational statistics, findings and analysis in attempting to establish the cognizable nature of the group of nonregistrants, the courts held that non-registered voters did not represent a cognizable group and that the use of voter registration lists was a permissible method of jury selection.

Thus, in United States v. Greenberg, supra at 391, Judge Bryan said: “He characterizes this group as ‘the politically dormant’ and says that their common failure to vote is a cohesive factor which binds all of them together in a community of interest. There is no merit to this contention. . . . All that such persons have in common is their failure to exercise the right of franchise at a given election. They are united only in disinterest.” (emphasis added).

Greenberg was followed by United States v. Van Allen, supra at 335-6, where Judge Cashin stated: “It cannot be said that non-registrants represent a certain or cognizable group of persons. Non-registrants vary from election to election. ... It is undisputed that in New York registration is available to all qualified persons, with strict legal prohibition against discrimination based upon race, sex, religion, national origin, or wealth. Thus, the use of registration lists to select jurors actually guarantees the presence of these groups on the jury list.” We find that both the rationale and the rulings in the Greenberg and Van Allen decisions persuasive.

Neither 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. Meanwhile, arguments “can be made against the use of any lists, as none are available for the whole population.” United States v. Local 36 ⁵⁹⁷ of International Fishermen, 70 F. Supp. 782, 799 (S.D. Cal. 1947), aff’d, 177 F. 2d 320 (9th Cir. 1949), cert. denied, 339 U. S. 947 (1950). Under existing realities, as Mr. Justice Holmes once put it in another context: “There must be a limit to . . . such matters if government is to go on.” Bi-Metallic Investment Co. v. State Board of Equalization of Colorado, 239 U. S. 441, 445 (1915).

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 for by Article 51 “fully satisfies this requirement and commends itself to an impartial jury system.” United States v. Greenberg, supra at 391. Appellant also complained in his motion challenging the array that persons between the ages of 18 and 21 were excluded by virtue of Article 51, § 6 (b)(viii). Although his appeal claims error generally on the part of the court below in overruling his motion to challenge the array, appellant’s brief in this Court does not argue the issue of excluding those between 18 and 21 from jury service.

Accordingly, we would be entitled to treat that issue as abandoned in this Court. Rule 1031 c 2; Fidelity & Deposit Co. v. Mattingly Lumber Co., 176 Md. 217, 220 , 4 A. 2d 447 (1939). Further, the appellant made no effort to demonstrate that persons between the ages of 18 and 21 are a “cognizable” group. In cases elsewhere attempts to demonstrate the affinity as a class or group of persons between 18 and 21 years have been made without success. “Every case which has dealt with the problem has concluded that 18-to-21-year-olds do not have a constitutional right to serve on juries.” United States v. Guzman, supra at 144.

The courts in those cases have noted that it is perfectly feasible for the 18-to-21-year-olds to have a constitutional right to express their opinions, attitudes and philosophy in the election process while not possessing a constitutional right to sit in judgment of others. 4 ⁵⁹⁸ However, on the limited record before us, we need not, and do not, reach the question of whether 18-to-21-year-olds are a cognizable group who cannot be constitutionally excluded from jury service. In so holding, we do not seek to delay the day when this interesting issue may be squarely met and decided. Vuitch v. State, 10 Md. App. 389, 397 , 271 A. 2d 371 (1970). However, the best teaching of judicial experience “admonishes us not to entertain constitutional questions in advance of the strictest necessity.” Parker v. County of Los Angeles, 338 U. S. 327, 333 (1949); Poe v. Ullman, 367 U. S. 497, 501 (1961) ; Vuitch v. State, supra at 397.

II DENIAL OF APPELLANT’S MOTION FOR THE APPOINTMENT OF AN INDEPENDENT PSYCHIATRIST WAS NOT CLEARLY ERRONEOUS After his plea of not guilty by reason of insanity, the appellant was referred to the Clifton T. Perkins State Hospital for determination of whether he was sane at the time of the alleged offense. Appellant was admitted to Perkins on June 7, 1971 and discharged on June 11, 1971. It was the unanimous opinion of the staff psychiatrists that the appellant did not suffer from any mental disorder at the time of the alleged offense such as to cause him to lack the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The appellant had been treated at Perkins pursuant to the “Brief Admissions of Evaluation Program.” Under this program, defendants from the Third and Seventh Judicial Circuits who raise an insanity defense are sent to Perkins for observation and examination at the hospital for a period of from four ⁵⁹⁹ to five days, as opposed to the usual period of hospitalization of approximately sixty days.

Appellant challenged the reasonableness and adequacy of his examination at Perkins Hospital and moved for the appointment of “an independent medical expert” at the expense of the State. Prior to the hearing on his motion, the motion judge (Loveless, J.) authorized expenses for two psychiatrists. Both psychiatrists questioned whether the Perkins medical staff had made a proper diagnosis and finding with respect to the appellant. They expressed doubts as to whether the appellant’s particular mental condition could be properly categorized as a severe anti-social personality disorder.

Both believed that the appellant should have been given an electroencephalogram and should have been kept at Perkins for additional observation beyond his four-day stay. Both were of the opinion that the examination which the appellant had received at Perkins was incomplete and inadequate. The Director of Clifton T. Perkins State Hospital and the Clinical Director testified that the examination which the appellant had received was adequate for the purposes of stating an opinion as to the competency and legal responsibility of the appellant. It was the testimony of both doctors, in substance, that the adequacy of the examination for the purposes of determining legal sanity had not been affected by reducing the length of the patient’s stay.

Both testified that the electroencephalogram test was no longer routinely used as a diagnostic tool because of its questionable value. After the hearing on the motion, Judge Loveless filed an opinion and order denying the motion for the appointment of an independent medical expert, ruling that: “We have fully reviewed the evidence and evaluated the testimony presented and we believe that the record most amply shows that Mr. Wilkins was afforded a thorough examination as to his state of mind. It seems to us that the opinions expressed by Drs. Maki and Murphy ⁶⁰⁰ may be summarized as being differing professional viewpoints or schools of thought from the viewpoints held by the Perkins Medical Staff.

We do not believe their testimony casts any shadow of doubt on the thoroughness of the examination given Mr. Wilkins.” On this appeal, the appellant argues that the denial of his motion for permission to retain an independent psychiatrist at the expense of the State violated his right to due process and equal protection of the law. He also contends that the evidence adduced at the hearing on his motion showed that the procedure which was followed in his case at Perkins was inadequate for the making of a proper determination of legal sanity. In this Court, it is settled that where there has been no challenge of the professional standing and competency of psychiatrists whose examination and report has been furnished at State expense, and no question has been raised as to their competency, impartiality or as to the thoroughness of their examination of the accused, there is no further constitutional obligation on the part of the State to supply defense counsel with funds to hire expert witnesses for the defense for the purpose of offering the opinion that the accused is criminally insane. Swanson v. State, 9 Md. App. 594 , 267 A. 2d 270 (1970) ; Gaither v. State, 13 Md. App. 245, 249 , 282 A. 2d 535 (1971).

Here, the appellant challenged the thoroughness of the staff examination and supported his challenge by the testimony of two independent medical experts. After a full hearing on the matter, the motion judge determined that the examination afforded the appellant had been adequate “for the purpose of determining his sanity at the time of the crime and his sanity to stand trial.” He took into account the