United States v. David Collins Clifford
Dаvid Collins Clifford appeals from his convictions for assault with a dangerous weapon, in violation of
I.
The indictment was filed on December 12, 1979, charging Clifford with assault with a dangerous weapon with intent to do bodily harm by an Indian in Indian country (Count I), and with assault by an Indian in Indian
II.
This case arises out of an incident that occurred during the late evening hours of November 20,1979. Clifford was attending a party on the Pine Ridge Indian Reservation in South Dakota. During the evening, Dale M. Brewer joined the party. Subsequently, appellant and Brewer engaged in “wrestling around” or “strongarming.” Both men were armed, Clifford with a handgun and Brewer with a knife.
After Clifford and Brewer were first separаted, Clifford struck Brewer on the side of the head with his gun. Brewer then approached Clifford and hit him several times. Clifford, in turn, pointed his gun at Brewer and fired, striking him in the left chest area.
III.
Appellant contends that the trial court erred in excluding from evidence the proffered testimony of his cousin, Clifton Clifford. This testimony was offered in support оf the appellant’s position that the shooting was in self-defense. In particular, it was offered to explain why he was carrying a gun on the day of the shooting.
In an offer of proof, Clifton Clifford stated that he would testify: that as a tribal attorney he frequently represents people in tribal court charged with crimes involving assaults at parties; that sometimes weapons are involved; that homes or property are damaged or destroyed by firearms or other weapons; that many homes on the reservation have gunshot holes in them; that “some nights it’s like Vietnam where I live [in Pine Ridge]”; that people at parties shoot holes in the walls and others get shot accidentally; that his son-in-law <was just shot and killed and the policeman who shot him then shot himself; that most people in Pine Ridge keep weapons in their homes; that many people in Pine Ridge also carry firearms on their persons; that he sometimes, during the week, hears gunfire; and that much of the violence in Pinе Ridge is related to the American Indian Movement and the “goons.” The trial court excluded the testimony of Clifton Clifford as irrelevant, tending to confuse the issues, and for lack of foundation as to the witness’ knowledge of these matters.
Appellant was then allowed to testify about his reasons for carrying the gun. He testified that he carries one when he goes to Pine Ridge because there are “a lot of crazy people” in Pine Ridge and “[y]ou never know what is going to happen down there.” Following this testimony, defense counsel moved to recall Clifton Clifford to testify to the matters contained in the offer of proof; the trial court deniеd the motion.
Appellant argues that the refusal to allow Clifton Clifford to testify violated his Sixth Amendment right to “obtain witnesses in his favor.” United States Constitution Amendment VI;
see Faretta v. California,
The facts that appellant had a gun and that he shot Brewer are uncontroverted. His reason for carrying the gun does not pertain to “the existence of any fact that is of consequence to the determination of the action . ... ”
The trial court’s determination is supported by case law. In
United States v. Kills Crow, supra,
IV.
Appellant also contends the trial court erred in failing to conduct adequate
voir dire
on racial prejudice. Prior to trial, Clifford proposed extensive
voir dire
questions relating to racial prejudice. The court refused to submit the specific requested questions, but conducted its own inquiry into the possibility of racial prejudice.
2
Appellant challenges the court’s failure to question more particularly as to individual racial bias.
United States v. Bowles,
The trial cоurt has broad discretion in deciding what questions to ask in jury
voir dire. Pope v. United States,
Clifford cites
Bear Runner
as support. This case, however is closer to
Bell
than
Bear Runner.
In
Bear Runner
the court took notice of certain publicized events involving American Indians that had occurred in western and central South Dakota within the year immediately preceding the trial. Against this factual background it was held that a single, general
voir dire
question directed to the panel as a whole was insufficient.
United States v. Bear Runner, supra,
In
Bell
the defendant, a black man, was tried before an all white jury. The trial court asked the prospective jurors three questions regarding possible raciаl bias, rejecting nineteen additional questions requested by the defendant, all but one of which concerned race. We held the trial court’s refusal to ask the requested
voir dire
questions was a proper exercise of discretion.
United States v. Bell, supra,
The passage of nearly six years since the time of Bear Runner has logically diminished the impact of the earlier publicized accounts. While we must be ever vigilant in our scrutiny as to potential prejudice, it neеd not always take the same form. Moreover, the issue of race is not inextricably involved in this case. Under these circumstances, we conclude the questions asked by the trial court adequately and properly examined, and would have revealed, any racial prejudice on the part of the potential jurors.
Our conclusion is supported by the trial court’s invitation to the individual panel members to approach the bench and privately inform the court of any matter tending to have a bearing on their ability to render a fair and impartial verdict. Considering the totality of the trial court’s
voir dire
questions, we are satisfied the court demonstrated a proper exercise of discretion.
United States v. Hamling,
V.
Finally, it is contended that there was error by the district court in denying appellant’s pre-trial motion to quash the venire, in that it illegally underrepresented American Indians. The record made in
United States v. White Lance,
The plan for selection of petit jurors in South Dakota provides for random selection from voter registration lists. In
White Lance, supra,
at 922, the trial court found that during the period from July 1977 through November 9, 1979, Indians living within the Central Division constituted 15.6% of the total population and 8.4% of the jurors sitting on petit juries. On these facts,, appellant asserts the trial court should have found a violation of the Sixth Amendment and of
The United States Supreme Court in
Duren v. Missouri,
(1) [T]hat the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of the group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process.
Id.
at 364,
These standards are functionally equivalent to those used to enforce
It is the policy of the United States that all litigants in Federal Courts entitled to trial by jury shall have the right to grand and petit jurors selected at random from a fair cross section of the community in the district or division wherein the Court convenes.
Id.; see Taylor v. Louisiana,
The initial issue is whether the 8.4% Indian representation on petit juries is fair and reasonable when related to their 15.6% proportion of the total population in the Central Division. The trial court concluded in
White Lance,
after consideration of the statistical concept of “absolute disparity,” that no substantial disparity existed.
Appellant contends that a more appropriate and accurate calculation of underrepresentation is the statistical concept of “comparative disparity.” The comparative disparity concept measures underrepresentation by the percentage by which the probability of serving as a juror is reduced for people in a particular category or cognizable class. In this case, suсh a calculation would demonstrate 46% underrepresentation. 3
Appellant strongly argues that under the absolute disparity calculation Indians could never be found to be substantially underrepresented in the Central Division; that the maximum underrepresentation that could be found under this calculation, if no Indians appeаred on the list of eligible jurors, would be 15.6%. This figure, he contends, would never result in a finding of substantial underrepresentation.
Using either concept, the facts here do not prove a case of substantial underrepresentation. The Supreme Court indicated in
Swain v. Alabama,
This court has not seen fit to adopt the comparative disparity concept as a better means of calculating underrepresentation. However, even if this were not the case, the 46% comparative disparity figure asserted by Clifford does not rise to the level found to establish substantial under-representation.
United States v. Test,
The final element for a prima facie case requires that the underrepresentation be the result of systematic exclusion of a particular grоup in the jury-selection process.
Duren v. Missouri, supra,
We notе initially that no evidence has been submitted establishing that the percentage of Indians registering to vote is less than any other group. However, applicant’s claim, even if established, would be insufficient upon which to base a finding of an inherent defect in the system.
The Jury Selection and Service Act of 1968,
Appellant argues that the lists should be supplemented by other sources more accurately reflecting the Indian populatiоn in the Central Division.
See
The judgment of the trial court is affirmed.
Notes
. The Honorable Donald J. Porter, United States Distriсt Judge for the District of South Dakota, Central Division, presiding.
. The trial court’s inquiry was as follows:
Members of the jury of the panel, the American system of justice is based on the very fundamental fact that every person is an individual with inalienable rights and every person stands equal before the law, neither above or beneath the law. It is also based on the concept that each person, after all, of the 200 million individuals in the United States, each person is an individual with his or her own individual rights and that a court of law on a trial by jury that each person is to be judged exclusively on the evidence in that case and without any sort of prejudice for or against the person that is unrelated to the evidence. Have any of you members of the panel had any incident occur that you feel would in your background, in terms of contact either with the Government or a native American such as the Defendant in this case which would prevent you from being fair and impartial?
[NO RESPONSE]
Do you feel, members of the panel, that аlthough it happens that all members so far as appears, there are no native American Members of the panel in the thirty-one. If it turned out that we were to imagine a situation where you were on trial in the Federal Court being a different racial background than the native American, you were on trial before a jury of twelve native Americans, do you feel you could be just as fair in this case as you would want that jury to be in your case; is there anybody that could not?
[NO RESPONSE]
