No. 13035 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1975

STATE OF MONTANA, Plaintiff and Respondent,

BRUCE ELMER TAYLOR, Defendant andAppellant.

Appeal from: District Court of the Fourth JudicialDistrict, Honorable Edward Dussault

## ,Judge presiding. Counsel of Record: For Appellant: Robert J. Campbell argued, Missoula, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas A. Budewitz, Assistant Attorney General,

argued, Helena, Montana Richard P. Heinz, County Attorney, argued, Polson,

Montana

Submitted: September 10, 1975 Decided: 

### oCT1.

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## 1375

{- $-t >- 3 

### 55 .."r Filed: *--Mr. Justice John Conway Harrison delivered the Opinion of the Court.
This isan appeal from the d-istrictcourt, Lake County, from a conviction of the charge of sexual intercourse without consent. Prior to trialdefendant challenged thejury panel, which challenge was denied. A jury trial followed resulting in a "guilty" verdict. Judgment was entered sentencing defendant totwelve years in theMontana stateprison with sixyears suspended. Defendant appeals from thatjudgment and sentence. The issue presented fordetermination iswhether or not the selection of jurors for a criminal trialunder sections 93- 1301(4) and 93-1402, R.C.M. 1947, the procedural statutes for selectingjurors for thejury panel, 

### isunconstitutional thereby depriving defendant of an impartialjury and violating Article 11, Section 4, 1972 Montana Constitution, which guarantees the equal protection of the laws and prohibits discrimination based on social origin or condition. On June 26, 1974, an Information was filedcharging defendant with sexual intercourse without consent under section 94-5-503, R.C.M. 1947. At that time defendant pled not guilty. On February 24,1975, defendant moved todischarge thejury panel. The motion was considered and denied atthe time of trial on March 10, 1975. Following a verdict of "guilty", defendant's motion for a
new trialbased upon alleged improper jury selection was denied atthe sentencing on March 24, 1975. Judgment was entered and defendant appeals. Defendant cites and argues a number of United States Supreme Court cases and cases from this Court in support of his position that the provisions of sections 93-1301(4) and 93-1402, X.C.M. 1947, areunconstitutional because thejury panel 

### was takenfrom those persons "Assessed on the last assessment roll of the county on property belonging tohim orher." Defendant argues that

t1 such a restrictive drawing" deprives him of the equal protection of the law thereby violating the Fourteenth Amendment oitheUnited States Constitution and theMontana Constitution. Defendant further argues that this protection has been extended in 

### the I972 Montana Constitution by Article 11, Section 4, which specifically declareswhat discriminatory factors are prohibited. Section4 reads: "The dignity of the human being 

### is inviolable. No person shallbe denied the equal protection of the laws. Neither the statenor any person, firm, corporation, or institution shall discrimin;-teagainst any person in the exercise of his civilor political rights on account of race, color, sex, culture, social origin orcondition, or political or religious ideas.II In support of his argument defendant relies on Statev. Hay, 120 Mont. 573, 194 P.2d 232; Statev. Porter, 125 Mont. 503, 242 P. 2d 984; Allen v. State, 110 Ga.App.56, 137 S.E.2d 711; Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L ed 1181; Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L ed 866; Wkitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L ed 2d 599; Turner 

### v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L ed 2d 567; Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1900, 26 L ed 2d 523; Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L ed 2d

We have no disagreement with the case authority citedby defendant nor the law established by that authority, however the

case authority cited isnot applicable to the instant case. Here, defendant raisedno racial issues and thejury panel of Lake County consisted of both white and Indian citizens. In most of the cases cited and relied on by defendant the challenge was tothe Fourteenth Amendment to the United States Constitution involving racialrights in elections, officeholding, or voting rights inbond and schoolboard elections. The cited cases arose inparts of the United Stateswhere members of minority races were prevented from exercising theirrights

# . In theMontana case, State v. Hay, 120Mont. 573, 194 P.2d 232, this Court found the trialcourt erred in picking additionalneeddjurors fromjury box No. 3, persons located in the cityof Helena, and in so doing deprived the appellant of a jury drawn countywide. Such isnot the issue in the instant case. To put the issue in proper perspective we willexamine the threebasic elements fundamental to theright to an impartialjury. (1) Was thejury drawn from a cross section of the community? 

### (2) Was some significant or identifiable group excluded? 

### (3) Was defendant prejudiced by the operation of the Montana statutes governing jury selection7 First, was thejury drawn from a cross section of the community? InMontana, until the 1975 legislature amended section 93-1402, R.C.M. 1947, jury listswere drawn from those persons assessed on the last assessment roll of the county of property belonging tohim or her. State ex rel. Bennick v. District Court, Mont

# . , 538 P.2d 1369, 32 St.Rep. 793. Here, defendant alleges that such a procedure discriminates against poor people and deprives them of an impartialjury because the list fromwhich thejury was chosen was composed only of persons who pay property taxes. Does this violate defendant's right to equal protection of the law? We answer in thenegative. An impartial jury is described in thenumerous cited cases

1r as one inwhich the potential membership is drawn from a cross section of the community". Thiel 

### v. Southern Pacific Co., supra; Smith v. Texas, 311U.S. 128, 130, 61 S.Ct. 164, 85 L ed 84; Glasser v. United States, 315 U.S.60, 62 S.Ct. 457, 86 L ed 680. The United States Supreme Court in itsmost recent case considering this question, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692,42 L ed 2d 690, 43 Lid 4167,4169, fullyreviews thenumerous cases and makes these comments on constitutional guidelines from these

cases: 1) Smith v. Texas, supra: I" [i]tispart of the established tradition intheuse of juries as instruments of public justice that thejury be a body trulyrepresentative of the community. 111 2) Glasser v. United States, supra: "'Jc Jc ;? our notions of what a proper jury 

### is have developed inharmony with our basic concepts of a democratic system and representative government' and repeated the Court's under- 

## ' standing that thejury be a body trulyrepresentative and not the organ of any special of the community

# * i? 

### " group or class.I11 3) Brown v. Allen, 344 U.S.443, 73 S.Ct. 397, 97 L ed 469: I" [olur duty toprotect the federal constitutional rights of alldoes not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty. Ill 4) Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L ed 2d 446, on theuse of a sixman jury: 

# "* ik 

# * that the number of persons on thejury should 'be large enough to promote group deliberation, free from outside attempts atintimidation, and to provide a fairpossibility for obtaining a representative cross-section of the community. 1 I' The Supreme Court noted in Taylor that since Smith v. Texas, supra, that it has consistently held that the selection of

a petitjury from a representative cross section of the community is an essential component of the SixthAmendment. Montana has followed the faircross section requirement as fundamental to a trialguaranteed by the SixthAmendment. Statev. Hay, supra; Statev. Porter, supra. Further, this Court has held that a defendant isentitled to an impartial jury, not a particular juror. No claim ismade here that defendant did not have an impartialjury. Statev. Hay, supra; Petition of Eoe, 156Mont. 303, 481 P.2d 45; Statev. Gates, 131Mont. 78, 307 P.2d 248; Statev. Moran, 142 Mont. 423, 384 P.2d 777; Ehni v. Northern P.Ry.Co., 152Mont. 373,This Court isconvinced, under the facts set forth in the instant case, that the faircross section requirement was not violated. While no technical evidence was offered or received, the transcript of the hearing before the court contains discussions, not disputed, of certain legal statistics and facts. These figures and factswere used by the district court to find neither prejudice nor discrimination. Atthe time thejury was drawn from the last completed assessment roll, 1974, it contained more names than did the list of registered voters. The assessment roll in 1974 provided a list of 11,637 potentialjurors, while thenumber of registered voters

was 8,497. The official 1970 census showed a total population in Lake County of 14,445. Using the above figures, it isapparent approximately 80%of the population of the countywere potential jurors prior to July 1, 1975, while approximately 59%of the populationwas currentlyregistered. In addition, it isestimated that

a great number of the 2,808 persons in Lake County who arenot on the assessment rolls arejuveniles, so that the class of people who pay no property taxes isnot such a definable class as to provide

a basis for objection on an equal protection ground. Too, all persons who do not pay taxes arenot necessarily poor. Recent revelations on thosewho do not pay taxes seem toinclude many of the listedwealthy. Perhaps that ishow they become wealthy. Even if a class of poor people can be specifically identified, and itwas not in this case, by itsabsence from the assessment rolls, such a class 

### is so small as tobe insignificant

as compared to the facts inTaylor where 53%of the persons eligible forjury dutywas female and no more than 10%of the persons on the jury wheel of the parishwas female. Such a discrepancy was found to violate a fair cross section requirement by the federal court. The second element---was some significant or identifiable group excluded fromjury service, we also answer in the negative.Counsel for defendant did not set forth case authority

11 on the phrase systematic and intentional exclusion of a class of persons from jury duty" that isapplicable here. )luch reliancewas put upon the case of Turner v. Fouche, supra, where the Supreme Court held that a statutory system to selectjuries and school boards was unconstitutionallyrestricted to freeholders. In Turner 60%of the population of the county was Negro yet the system of selectingjury commissioners from the list of freeholders who in turn select the grand jury which, in its turn selected the members of the school board, resulted ina minority of Negroes on the grand jury and none on the school board. Turner aswell as other cases relied on by defendant here, turned on the particular factsbefore the court in each case, and aswe read Turner the holding was intended only to constitute ajudgment on the evidence presented and did not indict any system based on tax rolls. The use of tax lists for selectingjurors has been specificallyupheld by federalcourt decisions. Brown v. A.llen, supra. In Roach v. Mauldin, 391F.2d 907, 908, the Circuit Court relied on Brown in holding that:

It J, 

# * in the absence of racial considerations the use of tax digests, which necessarily exclude nonproperty owners, seems tohave been settled as not prima facieunconstitutional

# * fc *.I' Many of the cited cases note that any system used would result in the exclusion of some names. To hold the Montana system unconstitutional, we would have tobe shown that an identifiable and significant class of peoplehad been excluded. There isno evidence in the record to support such a finding. The third element for consideration iswhether the defendant was prejudiced by the operation of Montana statutes governingjury selection. We hold he was not.Defendant has failed to show any prejudice against him

or any injury affecting his right to an impartial jury resulting from any discriminatory practice of jury selection. Much discretion is left to the states, as it should be, in the various methods used injury selections. Brown v. Allen, supra. ~ontana's system of jury selection "reasonably reflects a cross section of the population" and defendant has failed to meet theburden of showing he was denied the benefit of an impartialjury as guaranteed by the 1972 Montana Constitution. Judgment of the trialcourt isaffirmed.



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