Charles Brown, Jr. v. State of Arkansas
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DIVISION IV
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
R OBERT J. G LADWIN, Judge
CACR06-27
S EPTEMBER 13, 2006
CHARLES BROWN, JR.
APPELLANT
APPEAL FROM THE WHITE COUNTY
CIRCUIT COURT
[NO. CR 2005-274]
HON. ROBERT EDWARDS,
JUDGE
V.
AFFIRMED
STATE OF ARKANSAS
APPELLEE
Appellant Charles Brown, Jr., appeals his conviction for delivering cocaine.
The
appellant’s sole point on appeal is that he was denied a fundamental constitutional right because
the jury panel that convicted him included no persons of his race. We affirm.
The White County Sheriff’s Department worked with a confidential informant who bought
crack cocaine from appellant.
Appellant was charged in an information with the crime of
“delivery of a Schedule II Controlled Substance, namely cocaine.” Appellant was brought to trial
on October 12, 2005, and a jury was empaneled from a pool of fifty-four registered voters. After
twelve jurors had been chosen and given the oath, the trial court called for a recess before
testimony began. At that time, appellant objected to having no African-American men or women
on the jury panel. The judge overruled the objection, and the appellant was ultimately convicted.
The transcript states as follows:
M R. S CHMIDT (appellant’s attorney): One other matter, your Honor. At the time that the
panel – jury was empaneled, my client said that he felt that he could not get a fair trial due
to the fact that this is not a trial among his peers, that there’s not a representative of his race
on the jury panel. And I want that noted as a matter of record.
T HE C OURT: Well, the – there was no motion to strike the jury panel and the Court believes
that to be dispositive of whatever motion it is you’re making here. This jury panel was
picked in accordance with the Arkansas law. It is a panel randomly selected from the pool
of registered voters. The Court did not excuse any African Americans from the jury panel,
either at orientation or at any other time to my knowledge. I will acknowledge that in the
54 prospective jurors here this morning, there were no African Americans that I am aware
of. But once again, the jury was selected according to law. No African Americans were
excused from service by the Court and the defense did not make a motion to strike the panel
prior to the jury being selected, which has occurred, and the Jury has now been sworn.
A trial court's decision to grant or deny a motion to quash a jury panel on the ground that
it cannot be impartial will not be reversed on appeal absent a showing of a manifest abuse of that
discretion. Black v. State, 50 Ark. App. 42, 901 S.W.2d 849 (1995) (citing Gonzalez v. State, 32
Ark. App. 10, 794 S.W.2d 620 (1990)). The Arkansas Supreme Court has held that if a party
desires to challenge a jury panel, a motion to quash must be promptly made and it is too late if the
jury has been empaneled and sworn. Bailey v. State, 255 Ark. 34, 498 S.W.2d 859 (1973) (citing
Carruthers v. Reed, 102 F.2d 933 (8th Cir. 1939)).
In the instant case, the jury was empaneled and sworn before appellant voiced his objection,
which was not in the form of a motion to quash. Consequently, the question of the validity of the
constitution of the jury panel is not properly before us, and we do not address it.
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Affirmed.
P ITTMAN, C.J., AND G LOVER, J., agree.
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