680 S.W.2d 924 (Ky. 1984), 83-SC-840, Commonwealth v. McFerron

Docket Nº:83-SC-840-DG
Citation:680 S.W.2d 924
Opinion Judge:STEPHENSON, Justice.
Party Name:COMMONWEALTH of Kentucky, Movant, v. Michael Joe McFERRON and Clarence Kirby, Respondents.
Attorney:David L. Armstrong, Atty. Gen., Christopher W. Johnson, Asst. Atty. Gen., Frankfort, for movant. Carl R. Clontz, Clontz & Cox, Mount Vernon, for respondent McFerron. William G. Crabtree, London, for respondent Kirby.
Judge Panel:STEPHENS, C.J., and GANT, STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur. LEIBSON, Justice, dissenting.
Case Date:December 06, 1984
Court:Supreme Court of Kentucky

Page 924

680 S.W.2d 924 (Ky. 1984)

COMMONWEALTH of Kentucky, Movant,


Michael Joe McFERRON and Clarence Kirby, Respondents.

No. 83-SC-840-DG

Supreme Court of Kentucky

December 6, 1984

Page 925

David L. Armstrong, Atty. Gen., Christopher W. Johnson, Asst. Atty. Gen., Frankfort, for movant.

Carl R. Clontz, Clontz & Cox, Mount Vernon, for respondent McFerron.

William G. Crabtree, London, for respondent Kirby.


Michael Joe McFerron was convicted of third-degree sexual abuse, KRS 510.130, and aiding and abetting sexual misconduct and sexual misconduct, KRS 502.020(1), KRS 510.140. McFerron was sentenced to imprisonment for one year and a fine of $500. Clarence Kirby was convicted of rape in the first degree, KRS 510.040, and sentenced to imprisonment for ten years. The Court of Appeals remanded the case with directions. We granted discretionary review and reverse.

There is no challenge to the sufficiency of the evidence to convict, so a recitation of the facts here is not necessary.

The principal assertion of error for both McFerron and Kirby is systematic exclusion of distinctive groups from both the grand jury and petit jury panels.

Prior to trial a motion was made to quash the indictment, set aside the jury panel and continue the case. This motion was supported by an affidavit based on personal belief of counsel for McFerron. The motion was denied. So far as we can tell from the record, there was no request for a hearing for the taking of evidence, and no proof was offered.

The affidavit is as follows:

"Affiant states that he has been familiar with and has reviewed the names of every jury panel selected for service since 1960 and that during said period of time no lawyers of [sic] physcians [sic] have been called for jury duty although at all times during the period physicians and lawyers were available and qualified for jury service. Affiant states that he believes that there has been a systematic exclusion of those classes of persons from jury service for the last 20 years.

"Affiant further states that during the entire period mentioned in the above paragraph that the Rockcastle Circuit Court has had three five-week terms each year and that those terms have commenced on the third Mondays of the months of March, July and November in each of said years. Affiant states that for the last five or six years during the March and November terms of said court, schoolteachers have been systematically excluded from jury service. The exclusion of teachers was accomplished in a manner different from that stated above relevant to attorneys and physicians. No attorneys' or physicians' names were ever pulled from the jury drum. In the case of school teachers, except for the current term of the Rockcastle Circuit Court, their names were placed in the jury drum and they were selected for jury duty but the court, upon request as a matter of comity, automatically excused them from jury service during the March and November terms.

"Affiant believes that this exclusion of school teachers from jury service for the March and November terms of the Rockcastle Circuit Court has been absolute for the past five or six years and that no school teacher has served on a jury during those periods."

The Court of Appeals held that the affidavit was sufficient to make out a prima facie case of systematic exclusion and the failure of the Commonwealth to then go

Page 926

forward with proof to negate the affidavit required that the case be remanded in order that the Commonwealth be enabled to demonstrate that the jury was composed constitutionally.

We are of the opinion the Court of Appeals is in error in holding that the affidavit made out a prima facie case shifting the burden to the Commonwealth to prove constitutional standards had been met. In considering this proposition, we do not differentiate between standards for grand jury or petit jury. While there may be some differences in applying various sections of the U.S. Constitution, for the purposes of this case there is no difference.

We base our decision on the following U.S. Supreme Court cases on the subject: Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

We do not consider differently underrepresentation and systematic exclusion. For the purpose of the requirements of making out a prima facie case of unconstitutional composition, there is no difference. In a given case underrepresentation constitutes systematic exclusion.

Swain is an alleged underrepresentation case. The evidence there was that while Negro males constituted 26% of all males in the county only 10% to 15% of the grand and petit jury panels have been Negro and no Negro had served on a petit jury. In denying relief, the court said, "But purposeful discrimination may not be assumed or merely asserted .... It must be proven ...." The court further stated: "Nor do we consider the evidence in this case to make out a prima facie case of invidious discrimination under the Fourteenth Amendment."

In Alexander, challenging the make-up of the grand jury, the evidence showed that 21% of the local adult population were Negro, 13% returning questionnaires to the commissioners were Negro, 6.75% of the persons ultimately selected as prospective grand jurors were Negro, only 1% of the 20 persons drawn for the defendant's grand jury venire were Negro, and none of the 12 persons on the grand jury which indicted the defendant were Negro.

The Court held that the proof adduced by Alexander established a prima facie case of invidious racial discrimination, shifting the burden of proof to the state to rebut the presumption of unconstitutional action.

In Taylor there was a stipulation that of the people eligible for jury service in the judicial district 53% were female, but no more than 10% of the persons on the jury wheel were women and none were selected on the defendant's venire. A state statute excluded women from jury service unless they had previously filed a written declaration of their desire to be subject to jury service.

The court held that women had been systematically excluded and that the make-up of the jury which convicted Taylor was impermissible constitutionally. No mention is made of a prima facie case for the obvious reason of the stipulation which constituted the proof from both defense and prosecution.

In Castaneda there was a challenge to the grand jury on underrepresentation of Mexican-Americans. The evidence showed that the population of the county was 79% Mexican-American, but only 39% of the persons summoned for grand jury service were in such class. The court held that a prima facie case of discrimination against Mexican-Americans was established since statistics showed that Mexican-Americans constituted a clearly identifiable class.

In Duren state law granted women an automatic exemption from jury service at their request. Duren established that while 54% of all adults in the county were women, only 26% of those summoned from the jury wheel were women and that only 14% of the persons on the post-summons venires were women. Duren's all male

Page 927

jury was selected from a panel of 53, of whom 5 were women. None of the statistical evidence was disputed. The court held that a prima facie case of systematic exclusion was established, and since there was no showing otherwise the case was reversed reaffirming the fair cross-section inquiry in Taylor stating that the wheels, pools of names, panels, or venires from which jurors are drawn must not systematically exclude distinctive groups in the community and thereby fail to be representative thereof.

The common thread running through these cases on the proposition of making out a prima facie case is that proof by taking...

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