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Henderson v. State

Court of Appeals of Arkansas, Division II

April 17, 2019

TONY L. HENDERSON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-17-187] HONORABLE MARCIA HEARNSBERGER, JUDGE.

          T. Clay Janske, Garland County Deputy Public Defender, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, Judge.

         Tony L. Henderson appeals the Garland County Circuit Court order denying his motion to strike the jury panels called for his trial. We affirm.

         I. Relevant Facts

         Henderson 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.

         On 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 exclusion.

         The 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 proceeded.

         Henderson 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 American.

         The 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 of appeal.

         II. Standard of Review and Applicable Law

         We will 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 ...


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