Mosby v. State

• Decision Date: 21 September 1970
• Docket Number: No. 5493,5493
• Citation: 249 Ark. 17,457 S.W.2d 836
• Parties: Roger Dean MOSBY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 836

457 S.W.2d 836

249 Ark. 17

Roger Dean MOSBY, Appellant, v. STATE of Arkansas, Appellee.

No. 5493.

Supreme Court of Arkansas.

Sept. 21, 1970.

John W. Cole, Sheridan, for appellant.

Joe Purcell, Atty. Gen., Mike Wilson, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Justice.

Appellant and a co-defendant were charged by information with first degree murder while in perpetration of robbery. The two were tried jointly before a jury, convicted and sentenced to death. We reversed those convictions because of an erroneously given instruction and also erroneously admitted cross-implicating confessions. Mosby and Williamson v. State (Ark. May 12, 1969) 440 S.W.2d 230. On remand, the trial court ordered a severance and upon a retrial, appellant was again convicted by a jury and sentenced to death. From that judgment the appellant, by his court appointed trial counsel, bring this appeal.

We first consider appellant's assertion that numerous irregularities occurred during the preparation of the jury lists from which the jury that condemned him to death was ultimately selected. Prior to trial, a motion to quash the jury panel was filed. A hearing was held on this motion at which time it was established that one of the three jury commissioners absented himself before the completion of a master list. The two remaining commissioners completed the task of compiling this master list. These two commissioners then selected therefrom the regular and alternate grand and petit juror panels which they sealed in an envelope, endorsed and delivered to the court clerk. The absent commissioner appeared in the clerk's office the following day and signed the endorsed envelope without having knowledge of the composition of the various lists which it contained. Numerous other statutory deviations (which are not necessary to consider since they are unlikely to re-occur in the selection of other jury panels) were also asserted at this hearing. The trial court denied appellant's motion to quash the panel.

The statutory provisions in effect when these jury panels were selected specified that the circuit court shall select three jury commissioners and charge them upon oath to faithfully discharge their duties as commissioners. Ark.Stat.Ann. § 39--201 (Repl.1962). The legislative attitude as to the strict performance of these duties is emphasized by a subsequent section which prescribes a penalty to be imposed upon any commissioner who fails to attend and perform the duties required of him. Section 39--204. Similarly, other provisions demonstrate the seriousness of this matter. The selection of the grand and petit jury lists by only two commissioners constituted a substantial departure from the plain statutory mandate and, therefore, furnished a sufficient basis, as comprehended by Ark.Stat.Ann. § 43--1911 (Repl.1964), for appellant to challenge the jury panel. See Keese v. State, 223 Ark. 261, 265 S.W.2d 542 (1954); Rutledge v. State, 222 Ark. 504, 262 S.W.2d 650 (1953); Shockley v. State, 199 Ark. 159, 133 S.W.2d 630 (1939); Wiley v. State, 191 Ark. 274, 86 S.W.2d 13 (1935).

However, irregularities affecting the selection of the jury panel warrant a new trial only if timely objection was made prior to the verdict and if resulting prejudice is shown. Underdown v. State, 220 Ark. 834, 250 S.W.2d 131 (1952). Furthermore, an appellant is in no position to assert that he was prejudiced by such irregularities unless he has exhausted his peremptory challenges. Keese v. State, supra; Rutledge v. State, supra; Wiley v. State, supra. In the instant case, appellant registered a timely objection and exhausted his peremptory challenges. The state contends that the appellant has, nonetheless, failed to demonstrate any resulting prejudice since 'the record utterly fails to show that the * * * commissioners chose anyone but honest, upright and fair persons as members of the panel * * *.' In Underdown v. State, supra, it was noted that:

'* * * there is no contention that an incompetent, disqualified, or partial juror was forced on the defendant. No substantial rights of the defendant appear to have been in any manner affected by the alleged irregularity. It is well settled by statute and our decisions that we do not reverse a judgment for harmless and non-prejudicial error.'

The irregularity complained of in that case was the failure of the jury commissioners to certify the lists as required by § 39--208. When the omission was discovered, the trial court immediately took extensive measures to cure the irregularity and to effectively protect Underdown against any possibility of resulting prejudice.

In the case at bar it has already been determined that a substantial irregularity existed in the manner of the selection of the jury panel from which was selected a jury that assessed a death sentence. Other jurisdictions have held that any substantial deviation from the statutorily prescribed procedure constitutes prejudicial error per se. See Tarrance v. Commonwealth, 265 S.W.2d 40 (Ky.1953); State v. Dobbs, 70 Wyo. 26, 244 P.2d 280 (1952); People v. Mack, 367 Ill. 481, 11 N.E.2d 965 (1937). This attitude was aptly stated in Tuley v. State, 151 Tex.Cr.R. 71, 204 S.W.2d 611 (1947), wherein it was said:

'The statute law of this State provides for the mode, manner, and method by which a venire is to be drawn from which a jury is to be selected to try one accused of a capital offense. A denial of the rights extended by such statutes constitutes prejudicial error. This is fundamental and basic.

Having reached the conclusion that appellant was not furnished a venire drawn in accordance with the mandate of the statutes, the question of harmless error is not presented.'

The jury system is historically the most efficient means devised by man in his constant search to achieve fairness and justice. Our legislature has sought to safeguard against any imperfections. In the case at bar, we must hold that the selection of the jury panel by only two commissioners, upon objection by appellant and subsequent exhaustion of his peremptory challenges, was not in accordance with the clear legislative mandate and constituted prejudicial error.

The appellant also contends for reversal that the court erred by making the following comment to the prospective jurors during voir dire:

'There have been numerous questions propounded to the jury. The court will, at the conclusion of the case, instruct the jury as to the law of the case. One of the instructions will be concerning the situation that the defendant did testify and in the event he didn't testify concerning that situation.'

This case was previously reversed because an instruction was given, over objection by appellant, concerning his failure to testify. Mosby and Williamson v. State, supra. See, also, Criminal Procedure--Jury Instruction on the Failure of an Accused to Testify, 24 Ark.L.Rev. 127 (1970). That decision contained the following language from Russell v. State, 240 Ark. 97, 398 S.W.2d 213 (1966):

'If the accused is to have the unfettered right to testify or not to testify he should have a correlative right to say whether or not his silence should be singled out for the jury's attention.'

Based upon the record before us, we cannot say whether the remarks of the court upon voir dire were invited or not. So, in that state of the record, the fact that the trial court brought appellant's silence or nonsilence as a witness to the jury's attention during voir dire rather than during final instructions is of no consequence. The appellant's 'correlative right to say whether or not his silence should be singled out' was infringed upon just the same. The prerogative of so alerting the jury was exclusively within the option of the appellant.

Nor is there merit in the state's position that any error was 'waived by the request for that instruction.' A waiver results from an election between two or...