Williams v. State, 5742

• Decision Date: 02 July 1973
• Docket Number: No. 5742,5742
• Parties: James WILLIAMS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 395

496 S.W.2d 395

254 Ark. 799

James WILLIAMS, Appellant, v. STATE of Arkansas, Appellee.

No. 5742.

Supreme Court of Arkansas.

July 2, 1973.

Walker, Kaplan & Mays, P.A., Little Rock, and Jack Greenberg, Norman J. Chachkin, New York City, for appellant.

Ray Thornton, Atty. Gen., by Henry Ginger, Deputy Atty. Gen., Little Rock, for appellee.

JONES, Justice.

James Williams was charged with first degree murder committed in the perpetration of rape. He was found guilty as charged at a jury trial in the Ashley County Circuit Court and on December 9, 1964, he was sentenced to death by electrocution. His conviction and sentence were affirmed by this court on appeal, Williams v. State, 239 Ark. 1109, 396 S.W.2d 834, and his execution date was set by the Governor for July 22, 1966. Execution was stayed by an order of this court entered on July 21, 1966, to permit Williams to seek post-conviction relief under Criminal Procedure Rule No. 1 promulgated and adopted because of the tremendous increase in habeas corpus petitions being filed in the state and federal courts by convicted felons pro se as authorized and permitted under United States Supreme Court decisions. ¹

Following the Rule No. 1 hearing in the Ashley County Circuit Court on November 9, 1967, the petition was denied by final order filed on May 25, 1971, and Williams now appeals from the trial court order denying relief on his petition to vacate the former judgment of conviction. In the intervening eight years since Williams was first tried and convicted, his death sentence was commuted to life imprisonment by executive clemency. The appellant now contends that the trial court erred in denying his petition for post-conviction relief for the reasons stated as follows:

'Appellant's unrebutted evidence that Negroes were systematically excluded from or included in token numbers only upon the jury venires of Ashley County, Arkansas established a denial of his Fourteenth Amendment rights.

Appellant's trial was conducted under such intimidating conditions and after such adverse, hostile and prejudicial publicity as to deny him a fundamentally fair hearing, and thus his rights under the due process clause of the Fourteenth Amendment were denied him.'

The appellant's second assignment was presented, argued and considered on his first appeal and we do not reach it here because we find we must reverse his conviction under the first assignment.

The constitutional prohibition against exclusion of members of any race from jury service because of race has never been questioned in Arkansas. Williams v. State, 229 Ark. 1022, 322 S.W.2d 86; Dorsey v. State, 219 Ark. 101, 240 S.W.2d 30; Green v. State, 222 Ark. 222, 258 S.W.2d 56; Maxwell v. State, 217 Ark. 691, 232 S.W.2d 982; Bailey v. State, 227 Ark. 889, 302 S.W.2d 796. In Williams and Dorsey we pointed out that the burden of showing facts which permit an inference of purposeful limitation for jury service because of race is on the defendant. It only follows that when a prima facie case of purposeful limitation is proven by the defendant, the burden then shifts to the state to prove otherwise. The state offered no evidence whatever in the case at bar, so the question before us is whether the appellant made out a prima facie case of purposeful exclusion of Negroes because of their race from the jury panel in this case.

There can be no question that this court, as well as the trial courts of this state, is bound by the decisions of the United States Supreme Court concerning rights and prohibitions under the provisions of the United States Constitution and, there is no question that the United States Supreme Court has spoken clearly, and more than once, on the question of racial discrimination in the selection of juries in criminal cases. We shall not attempt to cite all the Supreme Court decisions bearing on the subject nor shall we quote extensively from any of them, but the substance of these decisions is simply this: Where individuals are selected for jury service from tax lists, or from any source, where separate race is indicated, and where there is a large percentage of Negroes as compared with whites who are presumed to have the legal qualifications to serve as jurors; a prima facie case of racial discrimination is presented when jury commissioners select those to serve on juries only from among the individuals with whom they are acquainted and such procedure results in a small percentage of Negroes as compared with whites being selected for jury service. Such prima facie evidence may, of course, be rebutted by evidence that the comparatively small percentage of Negroes selected was not because of their race. The burden of presenting such evidence, however, rests on the state.

We need only mention in some detail two United States Supreme Court decisions from which the above rule is extracted. They are Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599. These decisions have been followed by the Federal Courts of Appeals in many cases but we deem it unnecessary to comment on more than two or three of them including the case of Bailey v. Henslee, 8 Cir., 287 F.2d 936, which arose from this state.

The background for the decision in Cassell v. Texas, supra, arose in two prior cases Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 and Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692. In Hill no Negro had ever been selected for grand jury service in Dallas County, Texas, and the jury commissioners testified that they had summoned, for service on the grand jury which returned the indictment, members of the white race with whom they were acquainted and whom they knew to be qualified to serve. They said that they considered Negroes for selection but did not personally know a qualified Negro they thought would make a good grand juror. The Supreme Court held that the petitioner had made a prima facie case of racial discrimination in the selection of jurors and after referring to Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757, said:

'We thought, as we think here, that had there been evidence obtainable to contradict the inference to be drawn from this testimony, the State would not have refrained from introducing it, and that the evidence which was introduced sufficiently showed that there were colored citizens of the county qualified and available for service on the grand jury.'

The Hill case was decided on June 1, 1942, and on June 4, 1945, the United States Supreme Court handed down the opinion in Akins v. Texas, supra, wherein the Texas State Court, in attempting to comply with the decision in Hill, selected one Negro on a 16 men grand jury panel from which 12 were chosen as a grand jury. In upholding the jury selection in Akins, the Supreme Court said:

'Purposeful discrimination is not sustained by a showing that on a single grand jury the number of members of one race is less than that race's proportion of the eligible individuals. . . . Defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried. But such defendants are entitled to require that those who are trusted with jury selection shall not pursue a course of conduct which results in discrimination 'in the selection of jurors on racial grounds.' Hill v. Texas, supra, 404 of 316 U.S. 62 S.Ct. 1159. Our directions that indictments be quashed when Negroes, although numerous in the community, were excluded from grand jury lists have been based on the theory that their continual exclusion indicated discrimination and not on the theory that racial groups must be recognized. Norris v. Alabama, supra, (294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074); Hill v. Texas, supra; Smith v. Texas, supra, (311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84). The mere fact of inequality in the number selected does not in itself show discrimination. A purpose to discrimination must be present which may be proven by systematic exclusion of eligible jurymen of the prescribed race or by unequal application of the law to such an extent as to show intentional discrimination. Cf. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497.'

The opinion in Cassell v. Texas, supra, was rendered on April 24, 1950. In that case an all white grand jury panel had been selected and the Negro population of Dallas County was approximately 15.5%. There were 21 grand juries during the period between the Hll decision and the Cassell indictment, and of the 252 names on the panels, 17, or 6.7%, were Negro. The payment of a poll tax was a qualification for jury service and 6.5% of the poll tax payers were Negro. It was determined by the court that as a matter of proportional percentages, a prima facie showing of racial discrimination had not been shown. But in Cassell, the petitioner also contended that subsequent to the decision in Hill, the grand jury commissioners, for 21 consecutive lists, had consistently limited Negroes selected for grand jury service to not more than one on each grand jury, on the theory that such limitation was permissible under Akins provided the limitation should be approximately proportional to the number of Negroes eligible for grand jury service. In Cassell the Supreme Court said:

'An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.

Our holding that there was discrimination in the selection of grand jurors in this case, however, is based on another ground. In explaining the fact that no Negroes appeared on this grand-jury list, the commissioners said that they knew none available who qualified; at the same time they said they chose jurymen only from those people with whom they were personally acquainted. It may be assumed that in ordinary activities in Dallas County,...