Opinion
August 12, 1983. Discretionary Review Denied by Supreme Court November 16, 1983.
Appeal from the Marshall District Court, Sid Easley, J.
Gary R. Haverstock, Hurt, Haverstock Jones, Murray, for movant.
Christopher W. Johnson, Asst. Atty. Gen., Steven L. Beshear, Atty. Gen., Frankfort, for respondent.
Before MILLER, PAXTON and WILHOIT, JJ.
The case is before the Court on discretionary review of an order of the Marshall Circuit Court affirming the movant's conviction in the Marshall District Court of trafficking in marijuana for which he received a sentence of one year in jail and a fine of $500.00.
The principal question raised is whether the trial court erred to the movant's substantial prejudice when it refused to grant his motion to dismiss the jury panel from which the trial jury was to be chosen. The motion cited as grounds that certain classes of persons, including doctors, lawyers, and policemen, had been improperly excluded from selection to the panel in violation of KRS 29A.090, the Fourteenth Amendment to the United States Constitution and Sections 11 and 14 of the Kentucky Constitution.
KRS 29A.090 provides that "[t]here shall be no automatic exemptions from jury service." We believe this statute must be read in conjunction with KRS 29A.080 which relates to disqualification of jurors. The import of these two statutes is that no qualified individual is to be automatically exempted from jury service. There is nothing in KRS 29A.080 which disqualifies a doctor, lawyer, or policeman per se from jury service, although a court might well excuse from service a particular member of one of these professions under KRS 29A.100. Evidence adduced from members of the jury commission, who had selected the names of prospective jurors, showed that the commission members had been instructed not to select medical doctors and attorneys "and stuff like that" as prospective jurors "because they would be excused anyway." A member of the commission also testified that for the same reason policemen were not selected.
Unlike the situation in Partee v. Commonwealth, Ky., 652 S.W.2d 89 (1983), in which the Court considered only the constitutional requirement of a random selection of jurors from a fair cross section of the community, and found insufficient evidence to support a violation of that requirement, the evidence here is overwhelming that medical doctors, attorneys, and policemen were automatically excluded from consideration by the jury commission in violation of KRS 29A.090. This question was timely raised, and we believe reversal is required since automatic exclusion of these groups constitutes a substantial deviation from the statutory method of jury selection. See Robertson v. Commonwealth, Ky., 597 S.W.2d 864 (1980).
Because of the result reached, it is not necessary to reach the constitutional issues raised by the movant or the alleged improper argument by the prosecution.
The judgment of the circuit court is reversed with directions that the case be remanded to the district court for a new trial.
All concur.