Kimble v. State, 5401

• Decision Date: 24 March 1969
• Docket Number: No. 5401,5401
• Citation: 438 S.W.2d 705,246 Ark. 407
• Parties: Harold KIMBLE, Appellant, v. The STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 705

438 S.W.2d 705

246 Ark. 407

Harold KIMBLE, Appellant, v. The STATE of Arkansas, Appellee.

No. 5401.

Supreme Court of Arkansas.

March 24, 1969.

Phillip Carroll, Little Rock, for appellant.

Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

On June 27, 1967, appellant, Harold Kimble, was tried by the Circuit Court of Pulaski County (First Division) sitting as a jury, convicted of the crime of assault with intent to kill, and sentenced to five years in the penitentiary. He remained in the penitentiary until May 16, 1968, when the conviction was set aside by the court after a hearing under a Criminal Procedure Rule 1 petition. The court found that, at the original trial, no witnesses were called on appellant's behalf, though Kimble had furnished his then attorney with the names of four or five persons, who appellant stated would testify to the effect that he was acting in self-defense. Appellant was again tried on June 12, 1968, by a jury, again found guilty, and the verdict fixed his punishment at nine years' imprisonment in the penitentiary. From the judgment entered in accord with this verdict, Kimble brings this appeal. For reversal, five points are urged, as follows:

I. The Arkansas jury selection system and its application by the Commissioners in this instance deprived the defendant of a fair cross-section of the community to pass judgment on his life and liberty.

II. Appellant's confession was taken in violation of his constitutional rights and should not have been admitted in evidence.

III. Admissible evidence on an important issue was wrongfully excluded by the Court.

IV. The Trial Judge wrongfully expressed his opinion of defendant's guilt in the presence of the jury.

V. Appellant's period of confinement should be reduced by the period of confinement under the former void conviction.

We proceed to a discussion of these contentions in the order listed.

I.

It is forcefully argued that the composition of the jury panel precluded Kimble from being tried by a jury of his peers. The argument is directed, not particularly to the fact that there was discrimination against members of the Negro race, but a discrimination occasioned by the selection of a particular group of persons, rather than a cross-section of the entire community. There were six Negroes on the jury panel, and actually four of these were selected as members of the twelve-person jury which convicted Kimble. As expressed by appellant, the jury commissioners picked the 'blue ribbon' class of jurors, i.e., businessmen, school principals, teachers, etc., and completely ignored day laborers, mechanics, and other wage earners. In other words, it is the contention of appellant that he was deprived of a jury composed of his economic and social peers.

Appellant's attack is made upon the system of selection of jury panels, and he says that it is only natural that jury commissioners will select persons for jury service composed of their neighbors, friends, acquaintances, i.e., persons that they know, and the selection of businessmen for jury commissioners, necessarily means that the same members of that classification only will be selected for jury service. It is pointed out that the three jury commissioners were respectively the owner of an exclusive men's store, an owner and operator of several florist shops in Little Rock, and the assistant controller of a dairy. Five of the six Negro personnel selected for jury service were school (high school or college) personnel, and the other was a self-employed sign painter. Appellant states:

'* * * The Commissioners cannot really be blamed when the panel is unconstitutionally constituted, for it is inherent in the system that they will choose their neighbors, friends, acquaintances, or persons who have reputations as substantial citizens in the community.'

The attack is actually on the Arkansas statutes ¹ providing for the selection of jurors, which appellant says violates his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The case of Thiel v. Southern Pacific Company, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, is cited by appellant, but we do not agree that this case affords support to appellant's position. There, the court pointed out that the American tradition of trial by jury necessarily contemplates an impartial jury drawn from a cross-section of the community. The court, however, stated:

'* * * This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.'

The court reversed the judgment because wage earners were systematically and ordinarily excluded, but, in Thiel, the court made this pertinent finding:

'The undisputed evidence in this case demonstrates a failure to abide by the proper rules and principles of jury selection. Both the clerk of the court and the jury commissioner testified that they deliberately and intentionally excluded from the jury lists all persons who work for a daily wage.'

In the case before us, all jury commissioners testified; it is true that one testified that he partly took into consideration whether the selection of certain jurors would cause a hardship, but the panel was picked by all three commissioners, and there is no evidence that the other two considered possible inconvenience to any particular group. It certainly cannot be said that the jury was made up of owners or heads of businesses for the record reflects that employees heavily predominated the composition of the panel; nor was there any evidence that prior jury panels had been limited to any particular class of persons. There is no showing, nor it is argued, that there was any systematic exclusion of any group, racial, economic, social or religious.

As far as the statutory method of selecting jurors is concerned, this is the responsibility of the General Assembly, and not of this court. The United States Supreme Court has never declared this method of selection to be violative of any constitutional requirement, and until that is done, it is our view that any change can only properly be consummated by legislative act.

II.

We do not agree that appellant's confession was taken in violation of his constitutional rights. It is first mentioned that the Little Rock Municipal Court was in session in the same building in which Kimble was questioned by two Little Rock detectives on February 17, and it is argued that appellant should have been taken to the chambers of the Municipal Judge so that the prisoner's rights could be properly protected. The fact that the court was in session at the time does not, in our view, strengthen appellant's case, for certainly a judge, with a set docket of cases to be heard, would not have been expected to adjourn court, and proceed to chambers with the officers and Kimble. We have made it clear, on numerous occasions, that the failure to take an arrested person before a Magistrate does not vitiate his confession. In Paschal v. State, 243 Ark. 329 (1967), 420 S.W.2d 73, we said:

'Counsel for the appellant, citing McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), insist that the confession was inadmissible because Paschal had not been taken before a magistrate for commitment, as the statute requires. Ark.Stat.Ann. § 43--601. The McNabb case, however, involved the interpretation of federal statutes that do not apply to the states. State v. Browning, 206 Ark. 791, 178 S.W.2d 77 (1944). Under our statute the failure to take an arrested person before a magistrate does not vitiate a confession, because the statute is construed to be directory only. State v. Browning, supra; Moore v. State, 229 Ark. 335, 315 S.W.2d 907 (1958).

The important consideration is whether Kimble was advised of his constitutional rights, and whether the procedure followed was in line with the United States Supreme Court decision in Miranda v. Arizona, 384 U.S. [246 Ark. 413] 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Before this statement was introduced, the court went into chambers with counsel for the purpose of holding a hearing on the question of whether the statement was voluntarily made. Detective Bob Moore of the Little Rock Police Department testified that he first talked with Kimble about 8:30 AM on the morning after appellant's arrest. The detective stated that he and officer Pete Evans advised Kimble that he had the right to remain silent; the right to talk with an attorney before giving a statement; the right to have an attorney present when answering any question; that any statement that he gave would be used in a court of law, and that, if he waived these rights, he had the right to stop the interrogation at any time. He then gave Kimble a waiver to read and sign, and testified that he did not make any promises or threats to induce appellant to make a statement. Kimble signed the waiver, and the officer said that appellant was very cooperative in telling about the shooting. Moore stated that he wrote the statement as Kimble related the facts. Appellant said that he started giving the statement when first brought to the jail, then went to sleep, and finished giving it the next morning. He said that he gave the statement, stopping at time to give Moore an opportunity to write what was said. He added that he initialed it in places at the request of the officer, but he really did not know whether the officer wrote everything, word for word, that he said. He never did answer the question as to whether he read it over before signing it. The court held that the statement was voluntarily made, and the weight of the evidence appears to be to that...