Kitchen v. State

• Court: Arkansas Supreme Court
• Writing for the Court: HOLT; FOGLEMAN
• Citation: Kitchen v. State, 572 S.W.2d 839, 264 Ark. 579 (Ark. 1978)
• Decision Date: 13 November 1978
• Docket Number: No. CR78-97,No. 1,CR78-97,1
• Parties: Kozy KITCHEN, Appellant, v. STATE of Arkansas, Appellee

Page 839

572 S.W.2d 839

264 Ark. 579

Kozy KITCHEN, Appellant, v. STATE of Arkansas, Appellee.

No. CR78-97.

Supreme Court of Arkansas, Division No. 1.

Nov. 13, 1978.

Robert B. Lamb, Newport, for appellant.

Bill Clinton, Atty. Gen. by Joyce Williams Warren, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

A jury found appellant guilty of rape (Ark.Stat.Ann. § 41-1803 (Supp.1977)), carnal abuse in the first degree (§ 41-1804), and carnal abuse in the third degree (§ 41-1806). His punishment was assessed at forty-five years, ten years and one year, respectively, in the Department of Correction. Appellant first contends that the court erred in denying his motion to quash the jury panel. We must agree.

Appellant's trial was scheduled for Monday, February 20, 1978, a legal holiday, at 9 a. m. When appellant and his counsel arrived for trial, it was discovered that the prospective jurors had not been notified to appear in court. Thereupon, the court instructed the sheriff's and clerk's offices to call a portion of the jury panel, requiring them to be present in the courtroom at 1 p. m. that day. In the interim, appellant's counsel duly filed a motion to quash and orally voiced his objection to this procedure. The court denied them, finding that no prejudice would result. About one-third (70) of the two hundred prospective jurors on the original panel were notified by 1 p. m. to attend. The sole method of summoning them to appear was by telephone. The sheriff advised the court that he had done his best to notify all the prospective jurors and non-attendance was because of mileage or the jurors could not be contacted. The court found that a sufficient number of the jurors drawn had been notified to provide a sufficient panel of qualified petit jurors, and, as indicated, appellant's written and oral motions to quash were denied.

Appellant recognizes that Ark.Stat.Ann. § 39-210 (Supp.1977) permits jurors to be summoned by certified mail, telephone, personal summons, or other methods permitted by law. However, appellant invoked Ark.Stat.Ann. § 39-215 (Supp.1977) which reads that a challenge "shall be sustained by the Court if it shall appear that there was a substantial irregularity in the drawing or summoning of the jury . . . ." Appellant argues here and before the trial court that the notice of less than four hours is unreasonable and is a substantial irregularity in the summoning of a jury. Appellant insists that this short notice could only result in reaching prospective jurors known to the sheriff who had telephones at their homes or places of employment, and that since two-thirds of the prospective jurors were not contacted in the initial summoning for the case at bar, it resulted in the exclusion of a large class of eligible jurors. He asserts that this is a larger excluded class than the "farmer exclusion" of 25 or 30 prospective jurors in Hall v. State, 259 Ark. 815, 537 S.W.2d 155 (1976). There we disapproved the practice of excluding all farmers during the farming season of the year without requiring them to appear and ask to be excused. We held this was impermissible since it constituted a deliberate and systematic exclusion of a large class of jurors. Here, in response, the state...