Petitioner, a Negro convicted of murder, filed a motion for a
new trial asserting for the first time deprivation of his
constitutional rights through systematic exclusion of Negroes from
the grand and petit juries. The trial judge permitted petitioner to
proceed on his motion, but, relying upon a state requirement that
objections to the composition of a jury be made before trial,
sustained objections to all questions concerning the alleged jury
discrimination, and denied the motion. The state Supreme Court
affirmed, finding no sufficient proof of jury discrimination.
Held: The practice of systematic exclusion, if proved,
would entitle petitioner to a new trial, and, since the state
Supreme Court decided his constitutional claim of jury
discrimination on the merits, although petitioner had not been
allowed to offer evidence to support that claim, petitioner must
now be given that opportunity.
276 Ala. 513,
164 So. 2d
704, reversed and remanded.
MR. JUSTICE CLARK delivered the opinion of the Court.
The petitioner, a Negro convicted and sentenced to death for
murdering a white man, attacks his conviction as violative of the
Due Process and Equal Protection Clauses of the Fourteenth
Amendment. He claims that, as a result of a long established
practice in the county of his conviction, Negroes were arbitrarily
and systematically excluded from sitting on the grand jury which
indicted him and the petit jury which convicted him.
Page 377 U. S. 130
The State answers that the claim comes too late, having been
asserted for the first time by a motion for a new trial. Code of
Ala. (1958 Recomp.), Tit. 15, §§ 278, 279;
Ball v. State,
252 Ala. 686, 689, 42 So. 2d 626, 629. Admittedly, the point was
not raised until the filing of the motion for a new trial, but the
trial judge permitted the petitioner to proceed on his motion.
However, the judge sustained objections to all questions concerning
the alleged jury discrimination, and denied the motion. The Supreme
Court of Alabama affirmed the conviction, finding that petitioner's
claim of jury discrimination was not supported by any evidence. We
granted certiorari, 375 U.S. 893.
Petitioner was convicted of the first degree murder of a white
mechanic, the apparent motive being robbery. There were no
witnesses to the killing, and the evidence of guilt was
circumstantial, based largely upon expert testimony given by the
State's toxicologist. Petitioner was represented by court-appointed
counsel at trial, but he obtained new counsel after conviction. In
his motion for a new trial, petitioner alleged that
"Negroes qualified for jury service in Greene County, Alabama
are arbitrarily, systematically and intentionally excluded from
jury duty in violation of rights and privileges guaranteed
defendant by the Fourteenth Amendment to the United States
Constitution."
The petitioner does not attack the reasonableness of Alabama's
procedural requirement that objections to the composition of juries
must be made before trial. Nor does he question the validity of
such procedures as a state ground upon which refusal to consider
the question might be based. However, in this case, the judge
granted petitioner a hearing on his motion for a new trial and
permitted him to call two Circuit Solicitors as witnesses to prove
his allegations of discrimination. Nonetheless, the judge sustained
objections to all questions concerning systematic discrimination on
the ground that
Page 377 U. S. 131
the point was not raised prior to trial. [
Footnote 1] On automatic appeal, the Supreme Court
of Alabama found that the trial judge had afforded petitioner "an
opportunity on the hearing of the motion for a new trial to adduce
evidence of any systematic exclusion. . . ." However, it found
further that
"none was introduced other than an affidavit
Page 377 U. S. 132
of appellant's mother that her son was indicted by a grand jury
composed of white men, and tried and convicted by a petit jury
composed of twelve white men."
It appears clear that the motion for a new trial alleged a
practice of systematic exclusion which, if proved, would entitle
petitioner to a new trial.
Arnold v. North Carolina,
376 U. S. 773
(1964);
Eubanks v. Louisiana, 356 U.
S. 584 (1958);
Reece v. Georgia, 350 U. S.
85 (1955);
Hernandez v. Texas, 347 U.
S. 475 (1954);
Strauder v. West Virginia,
100 U. S. 303
(1879). Here, petitioner's counsel failed to raise the issue before
trial, but the Alabama Supreme Court, apparently acting under the
enlightened procedure of its automatic appeals statute, [
Footnote 2] did not base its affirmance
on this ground, but considered the claim on the merits and held
that the petitioner had not met his burden of establishing racial
discrimination. The court concluded:
"No sufficient proof having been produced at the hearing on the
motion for a new trial, or at any other state of the proceedings,
it is clear appellant may not now complain. Therefore, we are left
under no doubt that appellant's point on systematic exclusion of
Negroes from the jury rolls in Greene County is not well taken.
"
Page 377 U. S. 133
Exercising its discretion to permit petitioner to attack the
exclusion by motion for a new trial, the Supreme Court of Alabama
decided petitioner's constitutional claim on the merits. The
judgment therefore
"rested upon the State Supreme Court's considered conclusion
that the conviction resulting in the death sentence was not
obtained in disregard of the protections secured to the petitioner
by the Constitution of the United States."
Irvin v. Dowd, 359 U. S. 394,
359 U. S. 404
(1959). Since the case comes here in that posture and the record
shows that petitioner was not permitted to offer evidence to
support his claim, the judgment of affirmance must fall. As in
Carter v. Texas, 177 U. S. 442
(1900), where the state court found that "the motion was but a mere
tender of the issue, unaccompanied by any supporting testimony . .
. ," this Court must reverse on the ground that the defendant
"offered to introduce witnesses, to prove the allegations . . . ,
and the court . . . declined to hear any evidence upon the subject.
. . ." 172 U.S. at
172 U. S.
448-449.
In light of these considerations, the petitioner is now entitled
to have his day in court on his allegations of systematic exclusion
of Negroes from the grand and petit juries sitting in his case. The
judgment is therefore reversed, and the case remanded to the
Supreme Court of Alabama for further proceedings not inconsistent
with this opinion.
Reversed and remanded.
[
Footnote 1]
"ATTORNEY FOR DEFENDANT: I can ask whether or not the law was
complied with?"
"COURT: Yes. The fact that the law was complied with, that is a
general question, but the Court will sustain an objection to that
because the courts have held repeatedly, the Supreme Court of
Alabama and the Supreme Court of the United States, that you can
not go into those matters unless they have been raised properly
during the trial or in some proceedings prior thereto. That is the
reason I asked you the question before. The case was tried by Mr.
Boggs, and the Court is familiar with it."
"ATTORNEY FOR DEFENDANT: But I would like to get one or two of
these questions in the record for the purpose of taking an
exception to it."
"COURT: You may ask the questions, but the Court will have to
sustain an objection to them."
"Q. Mr. Boggs, you were present when the Grand Jury, which
indicted Johnny Coleman, was convened, were you not?"
"A. I was."
"Q. How many persons were on that grand jury?"
"A. Eighteen."
"Q. Were any negroes on that grand jury?"
"SOLICITOR: I object to that, may it please the Court. It is an
illegal mode of raising that which should have been raised by
motion to quash the indictment."
"COURT: Sustain the objection."
"ATTORNEY FOR DEFENDANT: I want to ask one more question, and
then I won't have any further question to ask -- two more, your
Honor."
"Q. Were there any Negroes on the petit jury that tried this
defendant?"
"SOLICITOR: I object to that, may it please the Court, on the
ground that it should have been properly raised by motion to quash
the venire if the Fourteenth Amendment was to be taken advantage of
in this matter."
"COURT: Sustain the objection."
[
Footnote 2]
Code of Alabama (1958 Recomp.), Tit. 15, § 382(10):
"Hearing and determination in appellate court. -- In all cases
of automatic appeals, the appellate court may consider, at its
discretion, any testimony that was seriously prejudicial to the
rights of the appellant, and may reverse thereon even though no
lawful objection or exception was made thereto. The appellate court
shall consider all of the testimony and if upon such consideration
is of opinion the verdict is so decidedly contrary to the great
weight of the evidence as to be wrong and unjust and that upon that
ground a new trial should be had, the court shall enter an order of
reversal of the judgment and grant a new trial, though no motion to
that effect was presented in the court below."