BEFORE WALKER, ROY NOBLE LEE and HAWKINS
ROY NOBLE LEE, JUSTICE, FOR THE COURT :
John Ray Wilson was jointly indicted with Walter Smith in the Circuit Court of Warren County, Honorable John E. Ellis, presiding, upon counts of burglary and grand larceny. The trial judge granted a directed verdict of not guilty in favor of Smith at the conclusion of the State's case, and, after all the evidence was introduced, the jury found Wilson guilty as charged. He has appealed to this Court and assigns six errors in the trial below.
The home of Vernon Smith, 3324 Indiana Avenue, Vicksburg, Mississippi, was burglarized on December 29, 1980, the burglary being discovered when the Smiths returned home around 9:05 in the evening. They discovered the front door had been broken and was standing open, and drawers and cabinets in the home had been ransacked. The loss of personal property aggregated approximately $20,000 and included a fur coat, television set, cassette player, diamond and gold jewelry, and silverware. On January 1, 1981, they were informed by the Vicksburg Police Department that some of their property had been recovered and they went to the police station and identified a television set, cassette player, some jewelry and a personalized pen and money clip.
The Smiths lived near the golf course and a
Kentucky Fried Chicken establishment was operated approximately one-fourth mile from their home. The police officers received a teletype from the Champaign, Illinois police department advising that Johnny Wilson (appellant), 1001 Monroe Street, Apt. #3, Vicksburg, Mississippi, was wanted for burglary in Champaign. The mode of operation in the crimes was similar. Officer Williams and others began a stakeout at the above address about 11 p.m. on December 31, 1980. After a short while, they saw three black males come out of a doorway of the apartment building and leave in an automobile. The officers had information from a confidential informant that stolen articles were in the apartment. They arrested the three individuals and returned to the apartment building where they saw a black female dart into the apartment. After receiving no response from the individual within, the officers broke in the door. Upon entering the apartment, they saw the television set and cassette player in the living room.
At this juncture, the search was halted, and Detective Williams left and obtained a search warrant. A thorough search of the apartment was conducted, turning up items of silver, firearms, and cameras. Alfonso Williams, the third black male arrested, testified that he had been with appellant and Lisa Porter (the young black female seen running into the apartment on January 1) on the night of the burglary; that he met them at a bar and appellant took him to the Kentucky Fried Chicken place on Indiana Avenue where he ordered something to eat; that appellant left, saying he would be back in a few minutes, that he "had to make a run" ; that in approximately twenty minutes, appellant and Lisa Porter returned, coming from the direction of the golf course, where the Vernon Smith family resided; that, when Williams re-entered the car, he saw a television set in it similar to the Smith set, which appellant said he had just picked up; and that appellant had a sack like a pillowcase, and the contents sounded like metal.
Did the lower court err in declining to quash the indictment because of racial discrimination in the selection of the grand jury foreman?
Prior to trial, a hearing was held on motion to quash the indictment, which stated that there had been a systematic exclusion of members of the Negro race as foremen of grand juries in Warren County. The 1970 Census statistics were introduced, indicating that the population of Warren County was 58.9% white and 41.1% non-white. A list of grand
jury foremen dating from 1949 through the February 1981 Term of court contained only the names of whites. Three grand juries are empaneled each year in Warren County, and the foreman is appointed by the judge. No evidence was offered by the State but the court was requested to take judicial notice that the most recent grand jury foreman appointed was black.
Mitchell v. Rose, 443 U.S. 545, 99 S. Ct. 2993, 61 L.Ed.2d 739 (1979), a Tennessee case, involved the "key man" system of jury selection. In Herring v. State, 374 So. 2d 784, 786 (Miss. 1979), after discussing the Rose case and setting out the jury selection method which prevails in Mississippi, the Court said:
Thus, in Mississippi (unlike Tennessee) the grand jury foreman is appointed from a selection method, which, from the very inception, has been a random process and non-discriminatory. No attack has been made upon the constitutionality of that selection method. In Mitchell v. Rose, supra, at 134, the Court of Appeals stated:
`While the facial constitutionality of the key man system has been upheld, it has been frequently recognized as a method particularly subject to abuse, and therefore subject to close scrutiny by the courts. We note, as has the Supreme Court on numerous occasions, that random selection methods similar to the federal system would avoid most of the potential for abuse found in the key man system, and would probably eliminate challenges such as the State of Tennessee faces here.' 570 F.2d at 134, fn. 5.
We are mindful that in Guice v. Fortenberry, 661 F.2d 496 (5th Cir. 1981), where the population was approximately 60% black and white grand jury foremen had been selected thirty-one consecutive times in the parish (Louisiana), the Court said there was the likelihood that facts could be presented on an evidentiary hearing entitling the petitioners to relief.
As was stated in Herring, supra, the new jury laws in Mississippi became effective in 1975, and operation of the grand juries will not precede that date in discussing the question. Considering the Mississippi statute, and, that, ...