TONY L. HENDERSON APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-17-187]
HONORABLE MARCIA HEARNSBERGER, JUDGE.
Clay Janske, Garland County Deputy Public Defender, for
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
F. VIRDEN, Judge.
Henderson appeals the Garland County Circuit Court order
denying his motion to strike the jury panels called for his
trial. We affirm.
was arrested on February 2, 2017, and he was charged with
first-degree battery and aggravated residential burglary. The
criminal information was amended, and Henderson was tried by
jury on one charge of aggravated residential burglary and one
charge of attempted first-degree murder.
March 28, 2018, before the trial was held, Henderson brought
to the court's attention that of the forty-three jurors
who appeared, none were African American. Henderson, who is
African American, objected to the all-white jury panels
arguing that they did not constitute a jury of his peers.
Henderson argued that different panels should be called
because the panels here-panels 1, 7, and 10-were entirely
comprised of white jurors. The circuit court stated that
"it's not that [the panels] don't have any
African Americans, it's that no African Americans showed
up" for trial. The State responded that Henderson had
the burden of proving that members of his racial group were
systematically excluded. Because the jury venire had been
drawn by random selection by computer, and because race was
not a factor in determining which panels were chosen, the
State argued that Henderson was unable to prove systematic
court agreed that Henderson had not made a prima facie
showing of systematic exclusion of African American jurors
and denied his motion to strike the panels. Henderson renewed
his objection. The jury was sworn, and Henderson's trial
renewed his objection at the close of the State's case.
In chambers, the Garland County Circuit Court jury manager
and deputy clerk, Tonya Winton, stated that when she
previously called panels 1, 7, and 10 for prior trials, she
noted that there were no African American potential jurors.
Winton explained that race is not indicated on the jury
questionnaire; thus, the races of the potential jurors are
unknown and not a consideration when forming the panels.
Winton clarified that the names of the potential jurors are
randomly chosen by computer from driver's-license and
Arkansas-ID records as well as voter registration records.
Winton explained that she tried to mix up the panels so that
the same panels did not always appear together or before the
same judge. Winton stated that she typically does not
consider the race of a juror, but in the past when she knew
that a defendant was African American she had tried to pull
panels that she knew had "quite a few [African
Americans] on it." Winton stated that she did not do so
this time because only twelve potential jurors appeared at
orientation, and she had not known that Henderson is African
jury found Henderson guilty of aggravated residential
burglary and attempted second-degree murder. Henderson was
sentenced to sixty-eight years in the Arkansas Department of
Correction on the first charge and forty years on the second
charge, to run consecutively. Henderson filed a timely notice
Standard of Review and Applicable Law
reverse a circuit court's denial of a motion to quash a
jury panel only when there is a manifest abuse of discretion.
Thompson v. State, 2015 Ark.App. 275, at 19, 461
S.W.3d 368, 379. Although selecting a petit jury from a
representative cross section of the community is an essential
component of the Sixth Amendment right to a jury trial,
nothing requires that the petit jury mirror the community and
reflect the various distinctive groups in the population.
Id. To quash a jury panel based on its racial
make-up, the moving party must prove that people of a certain
race were systematically excluded from the panel. See
Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007).
To establish a prima facie case of deliberate or systematic
exclusion, a defendant must prove that (1) the group alleged
to be excluded is a "distinctive" group in the
community; (2) the representation of this group in venires
from which the juries are selected is not fair and reasonable
in relation to the number of such persons in the community;
and (3) this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.
Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 ...