Turner v. State

• Decision Date: 07 July 1975
• Docket Number: No. CR,CR
• Citation: 258 Ark. 425,527 S.W.2d 580
• Parties: Alvin TURNER, Appellant, v. STATE of Arkansas, Appellee. 75--2. Supreme Court of Arkansas
• Court: Arkansas Supreme Court

Page 580

527 S.W.2d 580

258 Ark. 425

Alvin TURNER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 75--2 Supreme Court of Arkansas.

July 7, 1975.

Rehearing Denied Sept. 2, 1975.

George Howard, Jr., Pine Bluff, Sharon B. Miller, Helena, for appellant.

Jim Guy Tucker, Atty. Gen. by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellant was found guilty of assault with intent to kill C. E. Faris, a marshal of Strong. The incidents on which the charge was based occurred on July 22, 1973. The trial was on June 1i, 1974. On the eve of trial, appellant, a negro, filed a motion to quash the jury panel, the names on the master jury list, and the 'names now contained in the jury box,' and to appoint a new jury commission. The first ground for the motion was that there had either been deliberate and systematic exclusion of negroes, systematic limitation of the number of negroes appointed as jury commissioners and called for jury duty or failure of the circuit judge and jury commissioners to acquaint themselves with negro citizens who are eligible for jury duty. Appellant also asserted in his motion that those who have been selected as jury commissioners and as jurors in the past are predominately persons who are either self-employed, members of a profession or employed in a managerial capacity, or the wives of self-employed or professional people, resulting in economic discrimination in the jury selection process. Still another ground of the motion was that many persons who were called for jury duty have served previously or are members of the same family as persons who have previously served, in violation of due process and equal protection of the laws. Still another ground was alleged systematic exclusion of persons aged 18 to 21 years.

Of course, appellant had the burden of proving the grounds alleged, or of facts which permit an inference of purposeful exclusion or limitation. Fields v. State, 255 Ark. 540, 502 S.W.2d 480; Mosby v. State, 253 Ark. 904, 489 s.W.2d 799; Williams v. State, 254 Ark. 799, 496 S.W.2d 395. No burden of refuting the alleged discrimination in jury selection rests upon the state until the defendant has established a prima facie case. Williams v. State, supra.

In attempting to discharge his burden appellant relied upon a stipulation that, according to the 1970 census, there were in Union County 22,639 white persons and 7,592 black persons over the age of 18 years, so that blacks constitute 26% of that segment of the population; testimony of the president of the local chapter of the NAACP, who was also a charter member of the Fair Voter's League, that he had participated in a concentrated campaign to get black people registered for voting purposes and that he estimated that 7,000 were registered in 1972, but that he had no records to indicate the number in either 1974 or any previous year; the testimony of the same witness that he visited the circuit courts in the county from time to time to observe the composition of juries and that he observed that certain elderly negroes were repeatedly called for jury duty; the testimony of an undertaker that he and one other black person were the only negroes on an eight-member jury commission which had served on February 9, 1971; testimony of a former president of the local chapter that certain black persons who had served as jury commissioners were 37, 39, 60 and 65 years of age; the testimony of a 55-year-old black resident of Strong that, while there were 600 black residents of that city out of a total population of 1,900, he only knew of one negro resident of Strong who had served as a juror and that he was between 35 and 40 years of age; the testimony of some of these witnesses that it was a matter of concern to him that he had never been called for jury service. There was no evidence as to the total number of registered voters in Union County. ¹ Specific evidence as to the number of black registered voters was also lacking. There was no evidence of the percentage of either the population or registrants to vote who were under 21 years of age. A list of the current jury panel showed that none were 30 or under. It was stipulated that five (or 13.5%) of the 37-member jury panel were members of the black race, that one of these five was excused by the court because of his age and a hearing problem and another was eligible to be excused because of his age.

Appellant somehow analyzed the current jury panel list to arrive at the conclusion that economic discrimination was shown because he finds 29 of 36 to be owners of business or occupying managerial status and the other 7 housewives, repairmen or unemployed. We are unable to tell how an electrician, a sales clerk, a saleslady, two teachers, a secretary, a retired grocer, an IBM processor, a 'treater' for Lion Oil Company and others were classified by appellant.

The only evidence offered on behalf of the state other than the names of the jury commissioners serving in 1969, 1971, 1972 and 1973 was the record of the instructions given to the jury commissioners who selected the names put in the jury wheel from which the panel was drawn. In pertinent part, it read:

I wish to emphasize that you should select jurors from a fair cross section of this county, and you will not exclude or include any persons on account of race, color, religion, sex, national origin or economic status.

It must be noted that the state was considerably handicapped in this respect because the motion to quash the panel was not filed until the day the case was set for trial, in spite of the fact that the court's written calendar contained instructions that all motions were to be filed seven days prior to the trial date.

The trial judge, in overruling the motion to quash, found that it appeared that jurors had been selected at random, and that the commissioners had attempted to get a cross-section of jurors throughout the county and to comply with the law.

Of course, showing that the composition of the particular jury panel does not correspond to the racial makeup of the community, when the panel is drawn by chance from a jury wheel made up from a list of names taken from voter registration lists by jury commissioners, appointed according to statute ² and properly instructed to select jurors from a representative cross section of the county without discrimination as to race, does not in and of itself make a prima facie case of racial discrimination. Murrah v. State, 253 Ark. 432, 486 S.W.2d 897. Quite a different situation from that shown in Williams v. State, 254 Ark. 799, 496 S.W.2d 395, exists where individuals selected for jury duty are selected from lists where races are not indicated, as is the case here. See Sheppard v. State, 239 Ark. 785, 394 S.W.2d 624. It is necessary that more be shown to establish a prima facie case than was shown in Williams, but the evidence here does not approach the showing of discrimination in Williams. The evidence here, given its highest probative value, does not even cast a suspicion, and that would not be sufficient. Smith v. State, 240 Ark. 726, 401 S.W.2d 749. Certainly there is no evidence that the jury commissioners, after having been appointed, relied upon their personal acquaintance and did not seek to familiarize themselves with the qualifications of eligible jurors of all races and stations in life. We find that appellant failed to make a prima facie case of discrimination in the selection of the jury panel from which the jury before which he was tried was selected.

We know nothing about the extent of voter registration of the age group which appellant says was not represented on his jury panel, so it is questionable that they are a cognizable or identifiable group or class entitled to a group-based protection against exclusion. United States v. Gast, 457 F.2d 141 (7 Cir., 1972), cert. den., 406 U.S. 969, 92 S.Ct. 2426, 32 L.Ed.2d 668 (1972). See also United States v. Camara, 451 F.2d 1122 (1 Cir., 1971). Whether such a group exists within a community is a question of fact. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). We do not find that the evidence in this case is sufficient to constitute a prima facie case placing the burden on the state to overcome it. It is not necessary that every jury contain representatives of every economic, religious, social, political and geographical group in a county. It is necessary that it be shown by one attacking the jury panel that there has been systematic and intentional exclusion of any of these groups before the panel can be quashed on that account. Johnson v. State, 252 Ark. 1113, 482 S.W.2d 600; Rogers v. State, 249 Ark. 117, 458 S.W.2d 747.

Appellant made no effort to show systematic exclusion of jurors on the basis of wealth or income and his analysis of the panel from which the jury was drawn in his case did not constitute prima facie evidence of economic discrimination. See Kimble v. State, 246 Ark. 407, 438 S.W.2d 705. As a matter of fact, we have no idea of the composition of the population of Union County as to owners, managers, employees, unemployed, retired persons or common laborers. The composition of the particular panel cannot well be, in and of itself, proof of the exclusion of any particular group or class. Fields v. State, 255 Ark. 540, 502 S.W.2d 480. No effort was made to show that the jury commissioners deliberately excluded names of persons to be placed in the jury wheel for 1974 on the basis of race, age or economic status. Even though the jury wheel system was adopted as a better means of assurance that jury panels would approach the ideal of a cross section of the community, it is highly unlikely that any panel drawn from the jury wheel could possibly achieve a perfect mirror of the community's percentages of population on the basis of race, sex, religious creed, educational status, economic standing, age grouping or any other basis on which the...