Opinion
No. 25058-0-III.
November 6, 2007.
Appeal from a judgment of the Superior Court for Yakima County, No. 04-1-02219-9, Ruth Reukauf, J., entered March 16, 2006.
Affirmed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Brown, J.
RCW 2.36.065 provides that no single method of jury selection is required "so long as fair and random selection of the master jury list and jury panels is achieved." Martin Lopez challenges his conviction for first degree murder. He contends the jury selection process for his trial was not random because the jury did not include anyone with a last name beginning with B, G, J, L, M, N, O, P, Q, R, S, W, X, Y, Z, and because the court clerk excluded jurors who had already served. The trial court concluded that the jury selection process substantially complied with RCW 2.36.065. We agree and affirm Mr. Lopez's conviction.
FACTS
In January 2006, Martin Mendoza Lopez was charged by amended information with first degree aggravated murder and, in the alternative, first degree murder. Prior to trial, the court experienced computer problems and the master jury list was not compiled as required by statute.
To solve this problem, the trial court created a new master list. Nancy Kendrick, the court administrator who oversaw jury selection, loaded 30,000 names into a computer from a newly created and certified master list. The computer randomly selected 1,500 names, and jury questionnaires were sent to those individuals. When the questionnaires were returned, 319 people qualified for jury service.
Ms. Kendrick then grouped the potential jurors according to the initial of their last names. When she was told how many potential jurors were needed, she reviewed the groups and selected those groups that added up to the number requested. At Mr. Lopez's trial, the selection process resulted in a jury panel that did not include anyone with a last name beginning with B, G, J, L, M, N, O, P, Q, R, S, W, X, Y, Z.
Ms. Kendrick also used another criteria when selecting potential jurors. Out of the groups of prospective jurors, she sought to ensure that each juror group was called the same number of times so the inconvenience was shared. To accomplish this goal, Ms. Kendrick eliminated some groups if they had previously been called. In this way, she ensured that each of the groups would be called upon at least once by the end of a two-week panel. Ms. Kendrick testified that there was no oversight for this process, but that she never excused a juror of her own volition.
Mr. Lopez objected to this jury selection process. The court ruled that Ms. Kendrick's procedure for selecting groups involved subjective decision-making. The court also pointed out that the selection procedure could be remedied to be more computer-based. Ultimately, the court found that because Ms. Kendrick did not personally dismiss any juror, and, instead, was motivated by the desire to share the inconvenience, there was substantial compliance with the jury selection statutes. The court also determined that there was no prejudice to Mr. Lopez.
In February 2006, a jury convicted Mr. Lopez of first degree felony murder with a firearm enhancement. Mr. Lopez appeals.
ANALYSIS
This court reviews a trial court's ruling on a challenge to the venire process for an abuse of discretion. State v. Tingdale, 117 Wn.2d 595, 600, 817 P.2d 850 (1991).
A trial judge must ensure random selection from master lists and panels of jurors. RCW 2.36.065. Other statutes also require the random selection of jury panels. RCW 2.36.010(6), (9); .050; .063; .080(1); .130. "The purpose of [jury selection] statutes is to provide a fair and impartial jury, and if that end has been attained and the litigant has had the benefit of such a jury, it ought not to be held that the whole proceeding must be annulled because of some slight irregularity that has had no effect upon the purpose to be effected." State v. Rholeder, 82 Wash. 618, 620-21, 144 P. 914 (1914).
No single method of jury selection is required, "so long as fair and random selection of the master jury list and jury panels is achieved." RCW 2.36.065. If a selection process is in substantial compliance with the statutes, the defendant must show prejudice. Tingdale, 117 Wn.2d at 600. Where there has been a material departure from the statutes, prejudice will be presumed. Id.
The term "random" is not defined in the jury selection statutes, chapter 2.36 RCW. Webster's defines "random" as "without definite aim, direction, rule, or method: with no specific goal or purpose in view," and "having the same probability of occurring as every other member of the set." Webster's Third New International Dictionary 1800 (3d ed. 1993).
Mr. Lopez argues that the jury selection process employed here constituted a material departure from the requirements of chapter 2.36 RCW. Specifically, he contends that the selection process was not random. Mr. Lopez asserts that, by selecting jurors whose last names began with certain letters, Ms. Kendrick employed a method with a definite purpose and objective that required subjective decision-making. To support this argument, Mr. Lopez relies on State ex rel. Murphy v. Superior Court, 82 Wash. 284, 114 P. 32 (1914), and Tingdale, 117 Wn.2d 595.
Murphy applied a former statute that set out a uniform method for selecting jurors. This method required the drawing of the slips that depended "`purely upon chance.'" Murphy, 82 Wash. at 286 (quoting 3 Rem. Bal. Code § 94-4). In Murphy, the judge directed the clerk to draw 78 names. The judge excluded a certain number, leaving 40 names. The judge then selected the jury from those 40 names. Id. at 285. The appellate court found that this jury was not drawn and impaneled as required by law. Id. at 290-91. The court also found that this selection process could allow a judge to select a jury of his or her own choosing. Id. at 287-88.
In Tingdale, the jury selection procedure allowed the trial court not to call any juror whom the clerk thought, based on personal knowledge, would either be excused for cause or by a peremptory challenge. Tingdale, 117 Wn.2d at 599. The appellate court concluded that the jury selection process was a material departure from chapter 2.36 RCW. Id. at 603. The court also expressed concern that the selection process left open the possibility that a judge or clerk could select a jury panel of their choosing. Id. at 601.
The Tingdale and Murphy cases both involved a material departure from the applicable statutes. Significantly, prejudice is presumed only where there is a material departure from jury selection statutes. Tingdale, 117 Wn.2d at 603. In contrast to Tingdale and Murphy, the appellate court in State v. Rice, 120 Wn.2d 549, 562, 844 P.2d 416 (1993) found no material departure from the statutes or county guidelines.
In Rice, the defendant argued that the jury selection process excluded members of his ethnic group. The court found that the clerks had the authority to dismiss jurors for the reasons under RCW 2.36.100 and that there was no indication that specific individuals who might have been favorable to the defendant had been excluded as part of the selection process. Rice, 120 Wn.2d at 561-62. The court also found that the defendant had failed to show prejudice. Id. at 562.
Here, any irregularity in the jury selection process was slight. The decision to group jurors by the first letter of their last names was based on objective, not subjective, factors. "Objective" is defined as "expressing the nature of reality as it is." Webster's, supra, 1556. In contrast, "subjective" is defined as "characteristic of or belonging to reality as perceived . . . as opposed to reality as it is." Webster's, supra, 2275.
Likewise, any decision to skip groups was made for objective reasons, including a desire to spread the burden of inconvenience among jurors. Here, there is no suggestion that a certain class was excluded or that the jury list was the result of personal bias.
Because there was no material departure from the jury selection statutes, Mr. Lopez must establish prejudice. He fails to do so. There is no evidence that Ms. Kendrick picked one group over another based on subjective reasons. There is no statistical evidence establishing that one race, nationality, color, gender, or economic class was found predominately in one first letter group than another. In short, Mr. Lopez made no showing as to how he was prejudiced by having a jury composed of persons with names beginning with certain letters of the alphabet or jurors who may not have previously sat on a jury.
The trial court did not abuse its discretion by denying the challenge to the jury selection process.
We affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J., SCHULTHEIS, A.C.J., concur.