Appeal from order dismissing on its merits petition for writ of habeas corpus in the United States District Court for the District of Connecticut, Newman, Judge.
Kaufman, Chief Judge, Anderson and Mansfield, Circuit Judges.
The petitioner, James L. Cobbs, presently an inmate at the Connecticut State Prison at Somers, was arrested on May 16, 1967, charged with the murder of one Batista Carbone who was found dead on August 27, 1966, in his apartment in the Green Apartments housing project in Bridgeport, Connecticut. The Fairfield County grand jury indicted Cobbs for murder in the first degree and he pleaded not guilty to the indictment.
At the trial, in the Superior Court of Connecticut before a judge and jury, there was evidence to show that Cobbs and another man had followed Carbone to his apartment and had rushed him when he opened the door; that the defendant and the other man knocked Carbone to the floor, stabbed him eleven times and strangled him. After robbing the victim, the defendant left the apartment house. He was then carrying a towel with what appeared to be blood on it, a kitchen knife which also had blood on it, a wristwatch, and a ten dollar bill. He walked to the car of a friend and said to him, "We just killed a man." The defendant then requested another friend to give him a ride home. On the way, the car was stopped at a street intersection where the defendant threw the towel and the kitchen knife into a storm sewer. Some time later he showed this friend a newspaper article about the death of Carbone and the defendant indicated that it was true. The defendant sold a wristwatch to a fellow worker at the laundry where he was employed. It was later identified by Carbone's daughter as her father's watch.
When the police arrested the accused they orally gave him the Miranda warnings, and, as soon as they arrived at the police station, he was given the same warnings in a printed form entitled "Notification of Rights." Cobbs read the form, acknowledged he understood it, and signed it. He volunteered some incidental statements in a conversation which he himself initiated, but he told the police that he wanted to see a lawyer before he described what actually happened. The police expressly told him that they did not need a statement from him as they had ample evidence. They provided him with a telephone and left him free to call anyone. Cobbs did not contact an attorney, but asked his grandmother to come to the police station. After he talked alone with her in a conference room,*fn1 they came out and Cobbs repeated the conversation he had had with her and made a full statement to the police lieutenant.
The jury returned a verdict of guilty of murder in the first degree, and Cobbs was sentenced, on the jury's recommendation, to life imprisonment. His conviction was affirmed by the Supreme Court of Connecticut in a thorough and well reasoned opinion, State v. Cobbs, 164 Conn. 402, 324 A.2d 234 (1973), and a petition for certiorari was denied by the United States Supreme Court, Cobbs v. Connecticut, 414 U.S. 861, 38 L. Ed. 2d 112, 94 S. Ct. 77 (1973).
After exhausting his state remedies Cobbs petitioned for a writ of habeas corpus in the United States District Court for the District of Connecticut on the grounds of a challenge to the array of the grand jury, objections to its procedures, and a challenge to the array of the petit jury. As an additional ground he asserted that the statements which he made to the police shortly after his arrest were improperly admitted against him at trial. The parties agreed to proceed on the basis of the extensive record developed in the Connecticut state courts and, therefore, no evidentiary hearing was held by the District Court. The petition was denied, and the same issues raised below are now before us on appeal.
Petitioner moved in the State court to quash the indictment on the assertion that errors of constitutional proportions were committed in the selection of the grand jury array; namely that it was not chosen in such a manner as to provide a representative cross-section of the community from which it was drawn. He also charged that the grand jury's procedures were so defective that they deprived him of his liberty in violation of the United States Constitution.
A hearing was held on February 16, 1968, in the Superior Court, on petitioner's motion to quash. The evidence presented at that hearing was later summarized by the Supreme Court of Connecticut as follows (164 Conn. at 406-07):
"After the Superior Court ordered a grand jury to be summoned, the sheriff for Fairfield County personally summoned the grand jury. From 1959 to June 19, 1967, when the defendant was indicted by the grand jury, the sheriff and his predecessor had maintained a list of names in the sheriff's office. This list or panel of prospective grand jurors was revised through additions and eliminations when persons died, moved to different locations or no longer desired to serve. Names were added to the list by the sheriff on recommendation of his deputy or persons who had high standing in the community. All persons listed were electors of above average intelligence and were volunteers for grand jury duty. The list included persons different in religious persuasion, race, national origin and political affiliation. The sheriff attempted to balance the list with respect to race and religious persuasion. In the five years prior to trial, only persons named in the list had been selected for the approximately fifteen grand juries called. The sheriff has never exercised his power of summons in order to obtain a grand jury. In summoning the grand jury for this case, the sheriff selected from his list forty-four persons whom he thought were best suited for service. From this group of forty-four persons the sheriff obtained eighteen persons. The sheriff avoided selecting persons from Bridgeport [in conformity with his general policy of omitting persons from the town where the alleged crime was committed], and most of the grand jurors who were selected in this case had had prior experience and had participated as members of grand juries on homicide cases."
In addition to the foregoing facts, the record discloses that the sheriff was personally acquainted with most of the persons on the master list; that many of the individuals had been personally selected by either the sheriff or his predecessor in office; that the list contained about 138 names; and that in selecting the grand jurors for this particular case, the sheriff passed by the names of persons whom he felt would not have time to serve. The only statutory prerequisite to the selection was that all of the grand jurors must be electors of the County (Conn. Gen. Stat. § 54-45). Despite the sheriff's attempts to avoid selecting Bridgeport residents, there were in fact six on the eighteen-member grand jury.
Although the States are not constitutionally required to use grand juries, Alexander v. Louisiana, 405 U.S. 625, 633, 31 L. Ed. 2d 536, 92 S. Ct. 1221 (1972); Branzburg v. Hayes, 408 U.S. 665, 688 n. 25, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972), it is nevertheless true that if a state elects to do so, the system for its selection must measure up to the constitutional standard of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which is that the system result in the selection of a representative cross-section of the community. It fails to do so if it systematically excludes any identifiable group from grand jury service. Carter v. Jury Commission, 396 U.S. 320, 330, 24 L. Ed. 2d 549, 90 S. Ct. 518 (1970); United States ex rel. Chestnut v. Criminal Court, 442 F.2d 611 (2 Cir.), cert. denied, 404 U.S. 856, 30 L. Ed. 2d 98, 92 S. Ct. 111 (1971); United States ex rel. Epton v. Nenna, 318 F. Supp. 899, 902-05 (S.D.N.Y. 1970), aff'd, 446 F.2d 363 (2 Cir.), cert. denied, 404 U.S. 948, 30 L. Ed. 2d 265, 92 S. Ct. 282 (1971).
In United States ex rel. Chestnut v. Criminal Court, supra, this court said:
"Sitting as a federal court reviewing a state system . . . we are not at liberty to impose . . . our own views on which method we believe to be the ideal for grand jury selection. Our power is limited to determining whether the particular selection method . . . under review by us violated petitioner's rights to due process and equal protection. . . ." 442 F.2d at 615.
The role of a federal court in reviewing a state grand jury selection system is, therefore, a very limited one because the state has broad discretion in prescribing qualifications for both its grand and petit jurors. Taylor v. Louisiana, 419 U.S. 522, 534, 538, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975); Carter v. Jury Commission, supra, 396 U.S. at 332; Brown v. Allen, 344 U.S. 443, 473-74, 97 L. Ed. 469, 73 S. Ct. 397 (1953); Fay v. New York, 332 U.S. 261, 91 L. Ed. 2043, 67 S. Ct. 1613 (1947). It is not the function of the federal courts to scrutinize the state's grand jury list to insure that it statistically reflects the proportionate size of every identifiable group as it relates to the whole community. Cf. Swain v. Alabama, 380 U.S. 202, 207-08, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965); United States v. Jenkins, 496 F.2d 57, 65 (2 Cir. 1974), cert. denied, 420 U.S. 925, 95 S. Ct. 1119, 43 L. Ed. 2d 394 (1975). Instead, it is petitioner who, in challenging the array, has the burden, under the constitutional test stated above, of establishing that the class or classes which he claims have been excluded are, in fact, identifiable groups in the community, and that the selection system has operated to exclude them Hernandez v. Texas, 347 U.S. 475, 98 L. Ed. 866, 74 S. Ct. 667 (1954); Quadra v. Superior Court, 378 F. Supp. 605, 614 (N.D. Cal. 1974).
Petitioner concedes that there was no intentional discrimination by the sheriff, and that he cannot demonstrate that any identifiable groups, for example, persons of a particular ethnic origin, race or religion, were excluded from the master list. Instead he simply asserts that the array was not chosen in a way which would produce a representative cross-section of the community*fn2 because literally hundreds of individuals for insufficient reasons were arbitrarily excluded from ever being considered at all. He points out that many of the members were selected on the basis of personal acquaintance with the sheriff, thereby eliminating from consideration substantial numbers of otherwise qualified persons; that the master list contained only 138 names, and excluded all who did not volunteer for grand jury duty; that the list had undergone only minor amendments in eight years,*fn3 making no allowance for ...