State v. Lopez , 96 N.M. 456 ( 1981 )

HENDLEY, Judge

(specially concurring).

I concur in the result reached by the majority as to the first issue and concur in the issues answered summarily.

Defendants objected to the absence of La Raza Unida members on the jury venire. It was defendants’ contention that La Raza Unida members were systematically excluded from the jury wheel because they did not vote in the previous general election because there were no La Raza Unida candidates in that election. The clerk of the court testified that names for the jury wheel were drawn from the poll books. The poll books contain the names of persons who voted in the last general election. They do not contain a party designation. The clerk of the court did not know whether or not any members of La Raza Unida had voted in the last general election or if any were on the jury wheel. Thus, there is no showing on the record that La Raza Unida members were systematically excluded by the jury selection procedure. Defendants had the burden of making such a showing. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

Defendants did not object to the absence of non-voters on the jury wheel. Defendants suggested that La Raza Unida members would have been included on the jury wheel if potential jurors were drawn from lists of registered voters. That, however, did not amount to an objection to the exclusion of non-voters on the jury wheel. Whether or not non-voters are a “distinctive” group in the community is an issue not properly before this court. Santa Fe Nat. Bank v. Galt, 94 N.M. 111, 607 P.2d 649 (Ct.App. 1979); Maldonado v. Haney, 94 N.M. 335, 610 P.2d 222 (Ct.App. 1980). On that question I express no opinion. The theory upon which defendants relied at trial may not be changed on appeal, Adoption of Doe, 89 N.M. 606, 555 P.2d 906 (Ct.App. 1976), and even if allowed, there is nothing in the record to support such a theory.

I would affirm the trial court’s ruling.