State v. Puente

Per Curiam.

By disqualifying people from jury service, based upon their professions, the jury commissioner did not specifically follow R. C. 2313.01 et seq. While R. C. 2313.12 authorizes commissioners of juries to exempt those who are statutorily entitled to exemption, a commissioner may do so only upon the request of the persons so entitled. Here, the commissioner would not place the names of those entitled to exemption in the jury wheel. Additionally, the commissioner compounded this shortcoming by not keeping a record of all proceedings before him, as required by R. C. 2313.12.

However, the failure here of the commissioner to follow the requirements of R. C. 2313.01 et seq. does not lead to the conclusion reached by the Court of Appeals that appellee’s conviction must be reversed.

In State v. Strodes (1976), 48 Ohio St. 2d 113, at 115-116, this court stated:

“Unless prejudice to the defendant or the systematic and *138intentional exclusion of a group is shown, we will not reverse a judgment because of minor and technical defects in jury-selection procedures.”

Also, R. C. 2313.41, relating to challenging an array of grand or petit jurors, states that “no indictment shall be quashed or verdict set aside for any such irregularity* * *if the jurors who formed the same possessed the requisite qualifications to act as jurors.” See, also, In re Appropriation (1963), 120 Ohio App. 273.

There is nothing in the present record that leads to the conclusion that appellee was either prejudiced by the jury commissioner’s failure to follow the requirements of R. C. 2313.01 et seq., or that the jurors who indicted and convicted appellee were not qualified jurors. Consequently, the Court of Appeals erred in reversing appellee’s conviction.

Our analysis does not end with a determination of what the Revised Code requires, for it was also argued that appellee was deprived of his constitutional right to have a jury chosen from a fair cross-section of his community.6

The Sixth and Fourteenth Amendments to the United States Constitution guarantee this right to criminal defendants.7 Duren v. Missouri (1979), 439 U. S. 357; Taylor v. Louisiana (1975), 419 U. S. 522; State v. Johnson (1972), 31 Ohio St. 2d 106. To demonstrate that there has been a violation of the fair cross-section requirement, a defendant must show:

“(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this 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 underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, supra, at page 364.

*139Here, appellee argues that the exclusion of doctors, dentists and lawyers from the array of jurors constituted the exclusion of a distinctive group. We disagree.

In determining whether a group excluded from jury service is a distinctive one, courts have looked to community prejudices toward the group. E.g., Hernandez v. Texas (1954), 347 U. S. 475; and Quadra v. Superior Court (N.D. Cal. 1974), 378 F. Supp. 605. There is nothing in the record to show that there are community prejudices against doctors, dentists and lawyers so that they would constitute a distinctive group. See Cobbs v. Robinson (C.A. 2, 1975), 528 F. 2d 1331, certiorari denied 424 U. S. 947. Therefore, appellee’s constitutional challenge is without merit.

Parenthetically, yet with great emphasis, we wish to state that just because failure to follow R. C. 2313.01 et seq. will not, of itself, result in a reversal, does not mean that these practices should be countenanced by the Courts of Common Pleas. Jury commissioners are appointed by the judges of the Courts of Common Pleas in each county and hold office at the pleasure of the judges. R. C. 2313.01. This being so, the judges should give their employees guidance and direction to insure that the laws relating to the selection of jurors are scrupulously followed. Judges should call attention to the fact that R. C. Chapter 2313 contemplates a random selection of jurors from all sections of each county. See R. C. 2313.08. It is only when these random procedures are followed that the criminal justice system will be insulated from challenges such as the present one. Cf. State v. Ballard (1981), 66 Ohio St. 2d 473, and State v. Sturm (1981), 66 Ohio St. 2d 483.

Additionally, the failure to follow the state statutes may result in unintentional violations of the fair cross-section requirement. See Smith v. Yeager (C.A. 3, 1972), 465 F. 2d 272, certiorari denied 409 U. S. 1076.

Having found no prejudice to the appellee in the jury commissioner’s failure to strictly follow R. C. 2313.01 et seq., we hereby reverse the judgment of the Court of Appeals.

Judgment reversed.

Locher, Holmes, C. Brown and Krupansky, JJ., concur. *140Celebrezze, C. J., W. Brown and Sweeney, JJ., dissent.

At the outset, it should be pointed out that a failure to follow state law regulating jury selection, in the absence of a violation of the fair cross-section requirement, does not result in a constitutional violation. Anderson v. Casscles (C.A. 2, 1976), 531 F. 2d 682.

Although the federal constitution does not require grand juries, when a state elects to use a grand jury, it must be drawn from a fair cross-section of the community. Carter v. Jury Commission (1970), 396 U. S. 320; Cobbs v. Robinson (C.A. 2, 1975), 528 F. 2d 1331, certiorari denied 424 U. S. 947.