DocketNumber: No. 7282-0-I
Citation Numbers: 29 Wash. App. 426, 628 P.2d 849, 1981 Wash. App. LEXIS 2348
Judges: Williams
Filed Date: 5/26/1981
Status: Precedential
Modified Date: 10/18/2024
This appeal from a judgment of conviction of first degree felony murder, entered upon the verdict of a jury, is based upon eight assignments of error concerning
Clyf Hugh Gladstone and his brother robbed and killed a taxi driver in King County. Gladstone filed a motion in opposition to the impaneling of a "death-qualified"
The exclusion of potential jurors opposing capital punishment is not reversible error where the sentence imposed is life imprisonment unless there is proof that the jury selected was conviction prone. Bumper v. North Carolina, 391 U.S. 543, 545, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968); State v. Golladay, 78 Wn.2d 121, 146, 470 P.2d 191 (1970).
Gladstone introduced several studies conducted by forensic sociologists and criminologists supporting his theory that "death-qualified" juries are more conviction prone. Among them: Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U. Colo. L. Rev. 1 (1970); Jurow, New Data on the Effect of a "Death Qualified" Jury on the Guilt Determination Process, 84 Harv. L. Rev. 567 (1971); H. Zeisel, Some Data on Juror Attitudes Toward Capital Punishment (1968).
The second issue is the constitutional validity of the venire from which the jury was chosen. Gladstone contends that he was tried by a jury which was drawn from a panel that did not represent a cross section of the King County community. Gladstone presented statistics which tended to establish underrepresentation of some minority groups in the King County venire.
Nonetheless, Gladstone asserts that he established a prima facie case of unconstitutional minority underrepresentation on the jury venire,
The third issue, concerning an instruction on criminal intent as applied to an accomplice, is decided, adversely to Gladstone, in State v. McKeown, 23 Wn. App. 582, 593, 596 P.2d 1100 (1979).
Affirmed.
Swanson and Corbett, JJ., concur.
Reconsideration denied June 24, 1981.
Review denied by Supreme Court December 18, 1981.
The term "death-qualified" refers to the practice of selecting jurors who are not unequivocally opposed to the death penalty. Cf. Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968) (exclusion of veniremen for merely questioning use of death penalty violates Sixth and Fourteenth Amendments).
he term "conviction prone" describes a supposed juror predilection to favor the prosecution in a criminal trial. Thus, the term "means that a death-qualified jury is more likely to convict than a nondeath-qualified jury." (Footnote omitted.) Spinkellink v. Wainwright, 578 F.2d 582, 593 (5th Cir. 1978), cert. denied, 440 U.S. 976, 59 L. Ed. 2d 796, 99 S. Ct. 1548 (1979).
Gladstone's evidence may be conveniently summarized in tabular form:
1978 King County General January-October 1978
Jury Pool Percentage Population Percentage
94.4 White 89.0
0.3 Hispanic 2.5
2.7 Black 3.8
0.1 Indian 0.8
2.5 Asian 3.6
Other (14 —
Total Minority 11.0 5.6
Gladstone also argues that young people/students and poor people are also underrepresented in King County venire. None of those groups is "cognizable” for Sixth or Fourteenth Amendment purposes. See United States v. Potter, 552 F.2d 901, 905 (9th Cir. 1977) (young people not a cognizable group); Granviel v. State, 552 S.W.2d 107, 120 (Tex. Crim. App. 1976), cert. denied, 431 U.S. 933, 53 L. Ed. 2d 250, 97 S. Ct. 2642 (1977) (lower income people not a cognizable group). State v. Porro, 158 N.J. Super. 269, 278, 385 A.2d 1258, cert. denied, 439 U.S. 1047, 58 L. Ed. 2d 706, 99 S. Ct. 724 (1978) (students not a cognizable group).
Gladstone also presented evidence showing that minority underrepresentation on the jury venire was not caused by chance.