Summary 2009 WY 77

Summary of Decision issued June 12, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Bloomer v. State

Citation: 2009 WY 77

Docket Number: S-08-0139

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

Representing Appellant Bloomer: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling. Senior Assistant Attorney General; Eric Johnson, Faculty Director, Prosecution Assistance Program; Eric K. Thompson, Student Director; and Curtis H. Cheney, Student Intern.

Facts/Discussion: Bloomer was convicted of two counts of possession of methamphetamine with intent to deliver. He claimed 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 asserted that the district court refused to consider probation in violation of established legal principles.

Make-up of Jury Panel: The clerk’s method for jury selection: before each term of court, the clerk received a randomly selected list of 350 jurors’ names from the Secretary of State 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. The names were chosen from the list in alphabetical order. Once the list is given to the district court as a jury panel, those names will not be subject to being called again, unless the clerk has gone through the entire list and it’s necessary to go back to the beginning of the list. The Court reviewed other jurisdictions’ decisions on this issue including Montana in State v. Azure, West Virginia, Arkansas in Henry v. State, Georgia, United States v. Eyster and United States v. Puleo from the 11th Circuit and Walker v. Goldsmith from the 9th Circuit. As was the case with other appellate courts, the Court does not approve of the method used because there are other more “tried and true” methods available that eliminate concerns raised by the instant appeal. The Court stated the method may not be used in any future cases. The only apparent reason for choosing the method used was so as not to inconvenience jurors. Bloomer failed to demonstrate that the method used by the district court clerk deprived him of a fair cross section of the community or that any distinctive group was systematically excluded from the jury panel. The Court concluded the district court did not err as a matter of law in denying Bloomer’s motion to quash the jury panel stating that if an error was made, it was harmless because the Court was unable to identify an irregularity that affected Bloomer’s substantial rights.
District Court’s refusal to Consider Probation: When Bloomer appeared at a Change of Plea and Sentencing Hearing, the district court stated that if he were found guilty on either one of the counts, there would be no request for probation. The Court found the district court’s comment troubling because it suggested that probation would not be considered if Bloomer opted for a trial. However, the Court measured the impropriety of the statement in the context of the entirety of the record on appeal. In the sentencing order, the district court considered the advisability of probation and rejected it as an option in sentencing given Bloomer’s offenses.

Conclusion: The Court stated that the method used in the instant case for seating a jury panel may not be used in any future cases but it concluded that because Bloomer failed to demonstrate the method deprived him of a fair cross-section of the community, the district court did not err. The Court was unable to conclude that the violation adversely affected a substantial right of Bloomer’s to his material prejudice. The district court clearly considered probation at sentencing despite his unfortunate remarks earlier in the proceedings.

Affirmed.

J. Hill delivered the decision.

C.J. Voigt, concurring in part and dissenting in part in which J. Burke joined in part: The Chief Justice concurred with the majority’s resolution of the jury panel issue but would have reversed on the second issue. He stated the facts were barely distinguishable from Guinn v. State where the Court reversed because the record left open the possibility that the sentencing decision was based in part upon the appellant’s exercise of his right to trial by jury.
J. Burke, dissenting: J. Burke disagreed with the majority’s resolution of the jury panel issue. The question was whether the jury selection process complied with Wyoming statutory requirements. The Justice stated it was unnecessary to rely on constitutional principles or decisions from other jurisdictions with different jury selection statutes. The procedures specified by statute insure a random selection process. The procedures used to select the jury panel for Bloomer did not result in a random selection from the set of 350 jurors on the base jury list.

Link: http://tinyurl.com/mt46ky .

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