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Bloomer v. State

June 12, 2009

RICHARD G. BLOOMER, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Park County The Honorable Gary P. Hartman, Judge.

The opinion of the court was delivered by: Hill, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

Hill, J., delivers the opinion of the Court; Voigt, C.J., files a dissenting opinion, with whom Burke, J. joins in part; Burke, J. files a separate dissenting opinion.

[¶1] Appellant, Richard G. Bloomer (Bloomer), was convicted of two counts of possession of methamphetamine with intent to deliver. He challenges those convictions on the basis that the district court erred in denying his motion to quash the jury panel because the method used to select that panel violated principles associated with selecting a jury that represents a fair cross section of the community. In addition, he asserts that the district court refused to consider probation for Bloomer in violation of established legal principles. We will affirm.

ISSUES

[¶2] Bloomer raises these issues:

I. Did the trial court err in denying [Bloomer‟s] motion to quash the jury panel?

II. Did the trial court err in refusing to consider probation for [Bloomer]?

The State presents the issues in these terms:

I. Did the clerk of court violate either Wyo. Stat. Ann. § 1-11-129 or the Sixth Amendment of the United States Constitution by drawing jurors in alphabetical order from a random list prepared by Wyoming‟s Secretary of State?

II. Is [Bloomer] entitled to a new sentencing as a consequence of the trial judge‟s statement -- at an abortive change-of-plea hearing -- that he would not consider probation if [Bloomer] went to trial and was convicted by a jury?

FACTS AND PROCEEDINGS

[¶3] The underlying facts of Bloomer‟s crimes are not of any special significance to the issues raised in this appeal and so we will not recite them in detail. It suffices to note that he was selling methamphetamine as a dealer. At his arraignment on August 16, 2004, Bloomer entered pleas of not guilty to both charges. Bloomer absconded to Montana in November of 2004, and so his December 13, 2004 trial date was vacated. Bloomer was imprisoned in Montana on other charges but was returned to Wyoming in the summer of 2007 under a detainer. Bloomer‟s trial was set for January 17, 2008, but on October 24, 2007, Bloomer requested a "Change of Plea and Sentencing Hearing," and that proceeding was scheduled for December 17, 2007. When he appeared at that hearing, Bloomer disclosed that he no longer wanted to enter guilty pleas. It was in response to this development that the district court stated:

I want to tell you something, you certainly have a right to have a jury trial, but as of today there will be no plea agreements. We go to jury trial. If you are found guilty on either one of the counts, there will be no request for any type of probation.

This occurrence forms the basis for Bloomer‟s second issue.

[¶4] On January 28, 2008, the first day of Bloomer‟s trial, Bloomer filed a "Motion to Quash Jury Panel." The motion was based upon the district court clerk‟s policy of selecting jurors from the master list in alphabetical order, rather than in a random selection process. Bloomer posits that, in combination, Wyo. Const. art. 1, § 7 ("Absolute, arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority."); art. 1 § 9 ("The right of trial by jury shall remain inviolate in criminal cases."); and art. 1, § 10 (.[T]he accused shall have the right.to a speedy trial by an impartial jury[.]"), mandate that the jury selection process used in Park County is in violation of those core constitutional principles. In addition, he asserts that the jury selection process used by the clerk of the district court violates the Sixth Amendment and the Due Process Clause of the United States Constitution (Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)).

[¶5] Wyo. Stat. Ann. § 1-11-109 (LexisNexis 2007) provides:

(a) The clerk shall shake the box containing the names of the regular jurors so as to mix the ballots therein as well as possible. He shall then draw from the box as many ballots as are ordered by the court.

(b) The name on each ballot drawn shall be entered in the minutes of the court.

(c) If the name of any person is drawn who is not competent to serve as a trial juror, and the incompetence shall be made to appear to the satisfaction of the court, the name of the person shall be stricken from the jury list, the ballot containing the name shall be destroyed, and such fact shall be entered in the minutes of the court.

(d) When the necessary number of jurors has been drawn, the clerk shall make and certify a list of the names drawn. The certificate shall state:

(i) The date of the court order for the drawing;

(ii) The date of the drawing;

(iii) The number of jurors drawn;

(iv) The names and addresses of the competent jurors; and

(v) The time and place where the jurors are required to appear.

(e) The jurors on the certified list shall be summoned to appear.

[¶6] Wyo. Stat. Ann. § 1-11-129 (LexisNexis 2007) provides:

The procedures for compiling and maintaining of jury lists, jury ballots and jury boxes, and for drawing jurors, may be modified by the court to permit the compilation and maintenance of jury lists and ballots and for the drawing of jurors by any manual, mechanical, electronic or other means calculated to insure the integrity of the system and a random selection process.

[¶7] The district court took testimony from the district court clerk who described her process in detail, including that it was adopted by order of the presiding judge. The district court ruled:

[T]hat process does ensure that there is a fair representation of those people of the community to ensure a fair and adequate trial for the Defendant in this matter. Therefore, the Court is going to decline to quash the jury panel.

DISCUSSSION

Make-Up of Jury Panel

[¶8] Although the facts which were brought out in the district court clerk‟s testimony are important in resolving this issue, at bottom this is a question of statutory construction which we review de novo:

In interpreting statutes, our primary consideration is to determine the legislature‟s intent. All statutes must be construed in pari materia and, in ascertaining the meaning of a given law, all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Statutory construction is a question of law, so our standard of review is de novo. We endeavor to interpret statutes in accordance with [the] legislature‟s intent. We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia. When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. We must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation. Moreover, we will not enlarge, stretch, expand, or extend a statute to matters that do not fall within its express provisions.

Muller v. Jackson Hole Mountain Resort, 2006 WY 100, ¶ 9, 139 P.3d 1162, 1166 (Wyo.2006) (quoting Sponsel v. Park County, 2006 WY 6, ¶ 9, 126 P.3d 105, 108)). Moreover, a party‟s claim asserting an infringement of the right to due process is reviewed de novo. Reece v. State, 2008 WY 121, ¶ 8, 193 P.3d 274, 276 (Wyo. 2008).

[¶9] The clerk of the district court described her methodology in detail. Before each term of court, she receives a randomly selected list of 350 jurors‟ names from the Wyoming Secretary of State. The names are drawn from voter registration lists and driver‟s license records. When a jury trial is scheduled, the district court clerk selects a number of jurors as recommended by the district judge for a particular trial. For various reasons (such as moving out of the district, over age 72, health problems, etc.) some jurors are deleted from the list. Thereafter, for the first jury drawn from a new master list, the clerk selects the number of names needed for the immediate jury panel. In this case, that was 53 names. The names were taken from the list in alphabetical order, rather than by a random selection from all jurors on the list. Those names were then randomly drawn to select the jury in the instant case. This is done largely for the convenience of jurors. That is, rather than drawing from the entire list each time a panel is required, names are taken from the list in alphabetical order. By this means the same jurors are not drawn over and over. Once an alphabetical list is given to the district court as a jury panel, those same names will not be subject to being called again, unless the clerk has gone through the entire list and it is necessary to go back to the beginning of the list once again. This methodology has been in use in Park County for over 15 years. In the district court clerk‟s view, § 1-11-129 allows each district to use a method that best suits its needs. For example, for the first trial during a term of court, the jurors will all be from the beginning of the alphabetized list. In the instance of this particular trial, all jurors‟ names began with the letters "H" through "P."

[¶10] This issue has arisen before in other jurisdictions. For instance, in State v. Azure, 2005 MT 328, ¶¶ 14-17, 125 P.2d 1116, 1118-20 (Mont. 2005) it was held:

Azure‟s jury venire was compiled by combining three separate jury panels that had been randomly selected by computer from the list of Cascade County registered voters. These panels were called for trials scheduled to occur around the same time as Azure‟s trial. When these other trials did not take place, the jury panels were held over and ultimately assigned to Azure‟s trial. Panels one and two each originally consisted of seventy persons. Panel three originally consisted of thirty-five persons. Prior to being assigned to Azure‟s trial, these panels were reduced to forty-six, forty-seven, and twenty-four persons respectively as a result of some jurors being excused by the clerk‟s office or the judge for legitimate reasons. Additionally, ten people were eliminated for failure to contact the clerk after the summons was mailed to them and the clerk was subsequently unable to reach them.

Panel one was initially assigned to Azure‟s trial. However, the District Court notified the clerk several days before the trial that it wanted at least eighty prospective jurors in this case. To accommodate this request, the clerk‟s office added the twenty-four names from panel three to the forty-six names on panel one. This created a pool of seventy people. The clerk then added the first twenty-one names from panel two. However, because panel two had previously been alphabetized, the selected surnames began with the letters A through K, and the names beginning with the remaining letters of the alphabet were eliminated. Subsequently, one person from panel two was excused, leaving the District Court with ninety potential jurors from which to choose. These ninety names were placed in a box for additional random selection, and the first twenty-seven names selected comprised the venire for the jury and one alternate.

Azureā€Ÿs complaint on appeal arises from the manner in which panel two was split. He maintains that it was error to alphabetize this list and then select only the first twenty-one persons based upon the first letter of their last names. He posits that once the list was put in alphabetical order and then not used in its entirety, it ceased to be random. He further asserts that when this list was combined with the other panels, the ...


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