Harold Vincent Corbin v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia
HAROLD VINCENT CORBIN
OPINION BY
v. 	Record No. 1503-01-2 	JUDGE JAMES W. BENTON, JR.
MAY 28, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ESSEX COUNTY
Horace A. Revercomb, III, Judge
Gordon A. Wilkins (Charles J. McKerns;
Wilkins & Davison; McKerns & Hill, on brief),
for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
The sole question presented on this appeal is whether the
trial judge erred in denying Harold Vincent Corbin's motion to
strike the master jury list. 	We affirm the trial judge's order.
I.
A grand jury indicted Corbin for capital murder, robbery, and
attempted capital murder. 	In a pre-trial motion to strike the
master jury list, Corbin alleged that the jury commissioners did
not prepare the master jury list consistent with the requirements
of Code § 8.01-345. 	In particular, he alleged that although the
statute indicates "that a master jury list shall be prepared . . .
using a current voter registration list, and where feasible, a
list of persons issued a driver's license . . . , [and persons

from the] city or county directories, telephone books, and
personal property tax rolls," the Essex County jury commissioners
improperly compiled the master jury list "solely by using the
voter registration list."
At a hearing held to consider the motion, Corbin's attorney
presented no witnesses. 	The parties stipulated that 9,300
people reside in Essex County, that 5,517 people are registered
to vote in the county, and that 1,656 of the county's residents
are school children. 	Corbin's attorney asserted in argument
that the jury commissioners prepared the master jury list from
the voter registration list only and that the statute's use of
"where feasible" imposes a mandatory requirement to use a
variety of other lists in addition to the voter registration
list.
The Commonwealth's Attorney argued that the issue turned
upon the meaning of "feasible." 	He argued that the voter
registration list contained a high percentage of the residents,
that the voter registration list was a reliable and "sufficient
random process" from which to select a master jury list, and
that using other lists involved "a huge process which is
difficult."
The trial judge's findings included the following:
The evidence that I have for the purposes
of this motion [is] the stipulation in
regard to the number of people in Essex,
9,300 people, approximately, in Essex. 	It
is proffered to the Court approximately
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5,517 people were registered to vote. 	The
Court is told that the voter registration
list is the list that is utilized by the
commissioners in Essex County for selecting
the jury panel.
* 	* 	* 	* 	* 	* 	*
The Court is being asked to strike the
jury list as not being in compliance with
this statute . . . because by using only the
voter registration list, the result is that
it does not include potential jurors
representative of the broad community
interest that might appear on the list by
virtue of the commissioners utilizing these
other lists.
The Court notes in that paragraph of the
statute where it says, "The jury
commissioners shall utilize random
selection," it makes reference "by manual,
mechanical, or electronic, using a current
voter registration list." 	. . . That I
would construe as being mandatory. 	They
have to use a voter registration list.
* 	* 	* 	* 	* 	* 	*
[T]he purpose of the motion before the Court
today is [to determine the meaning of]
"where feasible," and [whether] the balance
of that sentence is mandatory, or perhaps
directory.
I am not of the opinion that it makes it
mandatory or otherwise the General Assembly
would not have put "where feasible." 	They
would simply have said, "Using the current
voters registration list and from the list
from DMV," . . . et cetera. 	But they chose
not to do that but instead put a qualifier
by using the words "where feasible."
Also, I do not believe that by using the
voter registration list that would deprive
someone of jurors who represent the broad
community's interest.
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Thus, the trial judge denied the motion. 	After a jury convicted
Corbin of first degree murder, robbery, and attempted first
degree murder, Corbin filed this appeal.
II.
Corbin contends that it was "feasible" for the jury
commissioners to use, in addition to the voter registration
list, the other lists mentioned in the statute. 	The
Commonwealth contends that the issue of feasibility poses a
factual question and that Corbin failed to present evidence that
the jury commissioners did not follow the statute. 	We agree
with the Commonwealth.
In pertinent part, the statute provides as follows:
The commissioners shall, not later than
December 1 following their appointment,
submit a list showing the names, addresses
and, if available, the occupations of such
of the inhabitants of their respective
counties or cities as are well qualified
under § 8.01-337 to serve as jurors and are
not excluded or exempt by §§ 8.01-338 to
8.01-341 and 8.01-342. 	Such master jury
list shall be used in selecting jurors
. . . .
The jury commissioners shall utilize
random selection techniques, either manual,
mechanical or electronic, using a current
voter registration list and, where feasible,
a list of persons issued a driver's license
as defined in § 46.2-100 from the Department
of Motor Vehicles, city or county
directories, telephone books, personal
property tax rolls, and other such lists as
may be designated and approved by the chief
judge of the circuit, to select the jurors
representative of the broad community
interests, to be placed on the master jury
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list. 	The commissioners shall make
reasonable effort to exclude the names of
deceased persons and unqualified persons
from the master jury list. 	After such
random selection, the commissioners shall
apply such statutory exceptions and
exemptions as may be applicable to the names
so selected. . . .
Code § 8.01-345.
The statute contains the undisputed mandatory requirement
that "[t]he jury commissioners shall utilize random selection
techniques . . . using a current voter registration list . . .
to select the jurors representative of the broad community
interests, to be placed on the master jury list." 	Id. 	The
disputed portion of the statute contains the further proviso
that commissioners also include in the pool of names to be
randomly selected, "where feasible, a list of persons issued a
driver's license as defined in § 46.2-100 from the Department of
Motor Vehicles, city or county directories, telephone books,
personal property tax rolls, and other such lists as may be
designated and approved by the chief judge of the circuit."
Code § 8.01-345.
In ordinary parlance, "[t]he term 'feasible' means simply
that which is 'capable of being done.'" 	Bell v. Dorey Elec.
Co., 248 Va. 378, 382, 448 S.E.2d 622, 624 (1994) (quoting
American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490,
508-09 (1981). 	The legislature's use of the phrase "where
feasible" in the statute clearly contemplates that jury
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commissioners will decide, based on facts and circumstances,
whether to supplement the voter registration list with other
lists to achieve the legislative objective, as clearly expressed
in Code § 8.01-345, of "select[ing] the jurors representative of
the broad community interests." 	See Bell, 248 Va. at 382, 448
S.E.2d at 624 (ruling that "feasible" is a term that "provide[s]
sufficient legislative standards to guide the [delegated entity]
in establishing regulations, and also establish[es] a legally
discernible standard by which a court could review subsequent
challenges [to the decisionmaking]"). 	See also Hickory
Neighborhood Defense League v. Skinner, 893 F.2d 58, 61 (4th
Cir. 1990) (holding that a decision "that there were no feasible
. . . alternatives" is one that must be based on facts). 	Thus,
we conclude that the statutory proviso, "where feasible," is a
matter that raises at the first instance an issue of fact that
is plainly a matter to be proved at trial.
As the party seeking to establish that the jury
commissioners failed to follow the statutory selection process,
Corbin had the burden of proving his allegations. 	Moats v.
Commonwealth, 12 Va. App. 349, 354, 404 S.E.2d 244, 246 (1991).
See also United Dentists, Inc. v. Commonwealth, 162 Va. 347,
355, 173 S.E. 508, 511 (1934) (stating the general rule that the
party "has the burden of proof who seeks to move the court to
act in his favor"). 	At the hearing before the trial judge, the
Commonwealth's Attorney agreed with the assertion by Corbin's
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attorney that the jury commissioners randomly compiled the
master jury list from the current voter registration list. 	The
parties also stipulated the population of the county and the
number of registered voters. 	Corbin's attorney presented no
witnesses and no other evidence concerning the process by which
the jury commissioners compiled the master jury list. 	For
example, he presented no evidence to prove whether the jury
commissioners considered using other lists, whether after
considering other lists the commissioners determined their use
to be problematic, or whether the commissioners determined
without reason not to use other lists. 	Whether a matter is
"feasible" turns, however, upon what the facts reveal. 	See
Bell, 248 Va. at 382, 448 S.E.2d at 624; see also In re Danny
Thomas Properties II LTD Partnership, 241 F.3d 959, 963 (8th
Cir. 2001); In re Clarkson, 767 F.2d 417, 420 (8th Cir. 1985);
Morris v. Williams, 433 P.2d 697, 713 (Cal. 1967).
For these reasons, we hold that the evidence in the record
was insufficient for the trial judge to have concluded that the
jury commissioners violated Code § 8.01-345 in compiling the
master jury list. 	Accordingly, we affirm the trial judge's
order and, therefore, the judgment.
Affirmed.
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