Waters v. State

• Decision Date: 10 November 1980
• Docket Number: No. CR,CR
• Citation: 271 Ark. 33,607 S.W.2d 336
• Parties: Gregory Louis WATERS and Carl Adams, Appellants, v. STATE of Arkansas, Appellee. 80-115.
• Court: Arkansas Supreme Court

Page 336

607 S.W.2d 336

271 Ark. 33

Gregory Louis WATERS and Carl Adams, Appellants, v. STATE of Arkansas, Appellee.

No. CR 80-115.

Supreme Court of Arkansas.

Nov. 10, 1980.

E. Alvin Schay, State Appellate Defender, by Jackson Jones, Deputy State Appellate Defender, Little Rock, for appellants.

Steve Clark, Atty. Gen., by James F. Dowden, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Chief Justice.

Appellants were tried jointly on separate charges of rape, allegedly committed upon Christopher Kanniard on March 4, 1979. Both were found guilty. Gregory Louis Waters was sentenced to 30 years imprisonment and fined $10,000. Carl Adams was sentenced to life imprisonment and fined $15,000. From these judgments pursuant to the jury verdict, appellants bring this appeal asserting four grounds for reversal. We find reversible error on only one of them, i. e., the allegation that the jury wheel selected for the year by the jury commissioners did not represent a fair cross-section of Howard County as a result of discrimination against black people.

An unusual procedure seems to have been followed. No written motion was filed. No motion was made until after a jury had been selected. At that time, the attorney for Adams moved to quash the panel because "the percentage of black people in the jury wheel is not sufficient." The attorney for Waters joined in this motion. The trial judge, sitting on assignment, denied the motion, saying that he was unfamiliar with the jury selection process in this circuit court but felt sure that whatever substance there was in the motion could be reached. He found it necessary, at that time, to proceed with the trial. The jury returned a verdict of guilty on September 21, 1979.

On October 10, 1979, a hearing was commenced on the motions of Waters and Adams to quash the jury panel. This hearing continued on November 5 and 6. One of the jury commissioners testified that the regular circuit judge, who later disqualified himself, had instructed the jury commissioners, by which the jury panel was selected, to use their "discrimination" and select people they thought should serve on a jury. Undoubtedly, the commissioners were actually told to use their discretion.

The Sheriff of Howard County testified that he knew nearly everyone in Howard County. He testified that he had examined the master list of 600 names drawn from the jury wheel selected by the jury commissioners and testified that there were definitely 23 blacks on the list and possibly three or four more. He said that of the 100 names on the panel for the trial of this case, four were black. The Sheriff estimated that black people constituted 20 percent of the total population of the county. This estimate finds support in the fact that the census report for 1970 shows that the percentage of black people in the Howard County population was 20.32. Of those over the age of 21 years, 17.21 percent were black and of those over 18, 17.73 percent were black. ¹ Even 27 black persons on the list of names placed in the jury wheel would constitute only 4.5 percent.

Each of the five jury commissioners, four of whom were white, selected names for the jury wheel from persons they knew. The commissioners were told that each of them should select between 150 and 200 names for the jury wheel. The sole black commissioner submitted only 100 names. Three of the commissioners selected 90 to 100 percent of the names they listed from persons known to at least one of them personally, and the remainder at random. One of the commissioners said that she knew, or knew of, 200 or 300 black persons who would be qualified for jury service and thought she named one of them on her list of about 150. She listed only the names of persons she knew. They were taken from a part of the voter registration list which contained at least 300 names. One commissioner who lived in Nashville said that he selected people from the Nashville area but that he also selected a lot he did not know by picking them at random from outlying communities. He operated a manufacturing plant at Nashville at which 75 percent of the employees were black. He picked several of those workers. He could not remember seeing any names of persons from Dierks, Tollett or Nashville on the list furnished him for selection purposes. Another commissioner said that he selected five black persons for the master list, but most of the persons he selected were from Dierks, where he operated a hardware store and had lived all his life, and where there were only two black people. Another commissioner lived in a community around Umpire where there was not a single black person.

According to the sheriff, there are two communities in the county, Tollett and Longview, in which the black population exceeds 20 percent. He said that there were probably 300 voters in Tollett, where black people constitute 90 percent of the population. In the Longview community, the population is 50 percent black. On two panels of 100 names each, which had previously been drawn from the master list, there were ten black persons, but none were from either Tollett or Longview.

Before we can hold for appellants on this issue, we must answer two questions in the affirmative. First, did appellants make a prima facie showing of racial discrimination in the jury selection process? And, if so, was it rebutted by the state? We find that a prima facie case was made but not overcome.

A black defendant is not entitled to a jury containing members of his race or to demand a proportionate number of his race on a venire or jury roll from which the petit jury is drawn. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Williams v. State, 254 Ark. 799, 496 S.W.2d 395; Turner v. State, 258 Ark. 425, 527 S.W.2d 580. It is the state's purposeful or deliberate denial to Negroes, on account of race, of participation in the administration of justice by selection for jury service, that violates the equal protection clause. Swain v. Alabama, supra; Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). A defendant in a criminal case is entitled to require that the state not deliberately or systematically deny to members of his race the right to participate, as jurors, in the administration of justice. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Apodaca v. Oregon, supra.

The primary question must be directed to the number, or percentage, of black persons on the original list placed in the jury wheel, since the drawing of names from the panel is random. The burden of showing facts which permit an inference of purposeful exclusion or limitation for jury service on account of race is on the defendant. Williams v. State, supra. Purposeful discrimination is not satisfactorily proven by showing that an identifiable group in a community is underrepresented by as much as 10 percent, because such a disparity, standing alone, reflects no studied attempt to include or exclude a specified number of that group. Swain v. Alabama, supra. Here there was a disparity of 15.82 percent (20.32-4.5). In considering whether appellants have made the required showing, comparison of the proportion of blacks in the total population to the proportion called to serve is the test. Castaneda v. Partida, supra.

In order to make a prima facie case, a substantial disparity or underrepresentation must be shown. Castaneda v. Partida, supra. We must determine, as best we can, what constitutes a substantial disparity. It seems that a disparity of 18 percent strongly points to the conclusion that discrimination is present. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). We have held that a 21.5 percent disparity is sufficient as a basis for establishing a prima facie case. Hall v. State, 259 Ark. 815, 537 S.W.2d 155. We seem to have also found a disparity of 18.33 percent to be sufficient. Williams v. State, supra. On the other hand, we appear to have found that a disparity of 12.5 percent was not sufficient. Turner v. State, supra. The disparity shown here appears to us to afford an adequate basis for a finding that a prima facie case has been shown. See Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967), where the disparity was 14.6 percent.

We are not unmindful of our decision in Murrah v. State, 253 Ark. 432, 486 S.W.2d 897, which would lead to a contrary conclusion. The United States Court of Appeals for the Eighth Circuit disagreed with us. Murrah v. Arkansas, 532 F.2d 105 (8 Cir., 1976). We do not concede that our decision in Murrah is not controlling here solely on the basis of the contrary conclusion by the Eighth Circuit. Decisions of the United States Supreme Court subsequent to our decision in Murrah do, however, lend support to the decision of the Eighth Circuit rather than to ours. See Castaneda v. Partida, supra. Our own cases of Williams v. State, supra, and Hall v. State, supra, seem to lead to a conclusion different from that we reached in Murrah.

A substantial disparity between the percentage of blacks in the population and the percentage in the jury wheel, standing alone, is not sufficient to make a prima facie case of discrimination. Thomas v. Texas, 212 U.S. 278, 29 S.Ct. 393, 53 L.Ed. 512 (1909); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945). See also, United States v. Test, 550 F.2d 577 (10 Cir., 1976). There must also have been either positive indicia of discrimination or proof that the selection procedure provided an opportunity for discrimination. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Hall v. State, supra; Turner v. State, supra; Murrah v. State, supra. Where the selection is committed to the discretion of jury commissioners, the use of their subjective...