Holiday v. State , 1973 Tenn. Crim. App. LEXIS 224 ( 1973 )

OPINION

O’BRIEN, Judge.

This defendant was convicted of first degree murder and sentenced to life imprisonment in March, 1968. The judgment was appealed and the conviction affirmed by this court on July 9th, 1969. Certiorari was denied by the Supreme Court on February 16th, 1970. (John Henry Gant and Frank Edward Holiday v. State, Tenn.Cr.App., 466 S.W.2d 518.)

A post-conviction petition was filed on April 4th, 1972, alleging a denial of petitioner’s constitutional rights in that the grand jury was illegally selected from a panel which systematically excluded ne-groes. A demurrer was filed on behalf of the State on the grounds that the allegations contained in the post-conviction petition were insufficient as a matter of law to support the relief prayed. On October 6th, 1972, the issues were argued in the trial court and subsequently an order was entered sustaining the demurrer and dismissing the petition. The matter is before us on appeal from that judgment of the trial court.

The assignments here charge error to the trial court in (1) not voiding the conviction and sentence of petitioner’s since the grand jury which returned the indictment systematically excluded members of petitioner’s race; and (2) not voiding the conviction and sentence of petitioner since there was no indication in this record of a valid waiver of petitioner’s constitutional guarantee of equal protection.

In the order dismissing the petition the trial court found that this petitioner was represented by retained counsel who were eminently qualified in the practice of criminal law and thoroughly familiar with the constitutional rights involved. That these rights were as well recognized in 1968 as they were on the date of the hearing. It was held that the issues in this case were governed by the rule set forth in Burt v. State, 2 Tenn.Cr.App. 408, 454 S.W.2d 182, to the effect that:

“When the constitutional right asserted was as well recognized at the time of the trial as now, and a procedure for asserting it was prescribed, failure to then assert the claimed right upon the trial waives it and prohibits its subsequent assertion in the post conviction proceeding”.

This court has recently ruled on a post-conviction petition in another case filed by this petitioner in which the same allegation was made, that is, that the grand jury was illegally selected from a panel which systematically excluded negroes. (No. 21219, Davidson Law, Holiday v. State). Certio-rari was denied in that case by our Supreme Court on April 2nd, 1973. What we had to say there is equally applicable in the case before us. Since our decision in that case, the United States Supreme Court has ruled in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235. After a conviction on a guilty plea, Henderson, by post-conviction petition, alleged a constitutional deprivation because of infirmities in the grand jury selection process. The judgment of conviction was affirmed on the premise that the guilty plea represented a break in the chain of events which preceded it in the criminal process, and a defendant may not thereafter raise independent claims relating to deprivation of constitutional rights which antedated the plea, such as infirmities in grand jury selection process.

Although the defendant in this case was convicted after trial before a petit jury rather than on a guilty plea, it is clear that the emphasis of the Tollett v. Henderson, supra, ruling applies more forcibly to this case, since the election was made to submit the issues on guilt or innocence to a jury rather than rely on a dilatory plea which could serve only to prolong the trial proceedings.

The excellent brief filed on behalf of this petitioner includes authoritative citations to sustain the argument concerning the unconstitutionality of racially exclusive grand juries. This position cannot be questioned, for it is the law. We do not consider the matter here because the evidence of positive waiver, explicit in the record of the trial proceedings indicate that, with the assistance of competent counsel, knowledgeable in the ways of criminal procedure and cognizant of the rights of this defendant, the election was made to by-pass an objection to the composition of the grand jury in this case as a deliberate, strategic choice precluding defendant from launching a successful collateral attack by post-conviction procedure on this issue.

By the second assignment it is argued that there was no indication in this record of a valid waiver of petitioner’s constitutional guarantee of equal protection. It is contended that if the indictment was returned by a racially exclusive grand jury in violation of the Fourteenth Amendment there was no jurisdiction to try the petitioner. This contention has been repeatedly refuted by Supreme Court decisions in Tennessee as well as the United States Supreme Court. The Mayor and City Council of Nashville v. Charles Shephard, 62 Tenn. 373; Ransom v. State, 116 Tenn. 355, 96 S.W. 953; Rivers v. State, 117 Tenn. 235, 96 S.W. 956; Pennel v. State, 122 Tenn. 622, 125 S.W. 445; Chairs v. State, 124 Tenn. 630, 139 S.W. 711; Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132; Williamson v. State, 194 Tenn. 341, 250 S.W.2d 556; Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243; McKinnie v. State, 214 Tenn. 195, 379 S.W.2d 214; State v. Johnson, 220 Tenn. 49, 413 S.W.2d 694; Bonds v. State, 220 Tenn. 555, 421 S.W.2d 87; State ex rel. Lawrence v. Henderson, 1 Tenn.Cr.App. 199, 433 S.W.2d 96; Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624; Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785; Tollett v. Henderson, supra.

Nor, do we construe those decisions by the United States Supreme Court which speak of the participation by a defendant, with his counsel, in making decisions of constitutional magnitude in the course of judicial proceedings to mean that a waiver of constitutional rights by a defendant must be spelled out verbatim in every case. The clear lesson of those decisions seems to be that where a deliberate choice is made by a defendant’s counsel at trial, which is “within the range of competence demanded of attorneys in criminal cases”, Tollett v. Henderson, supra, citing McMann v. Richardson, 397 U.S. at 771, 90 S.Ct. at 1449, that action of trial counsel is binding on the defendant.

The decision in this case, required in the court below, whether or not to resort to the dilatory tactic of contesting the composition of the grand jury prior to proceeding to a trial of the issues before a petit jury, is not in the same category with a decision to proceed to trial or to engage in the process of plea bargaining for the purpose of obtaining the most advantageous result possible prior to the entry of a guilty plea. The reasoning is to be seen in the fact that the action of entering a guilty plea as opposed to going to trial is an absolute. A defendant must choose between taking his chances on submitting the issues to a jury or taking benefit of the advantages which may be obtained by admitting his guilt. There can be no doubt that this choice must be made by a defendant, under all circumstances, after the required consultation and advice by competent counsel. Once the decision for trial is made a different situation results and a defendant faces a deep and impenetrable morass filled with pitfalls for passage through which he must depend on his legal counsel as surely as he would be dependent upon the services of a competent guide if he were faced with the same circumstances in a literal sense rather than a figurative one. It is at this point that his “control” of the legal proceedings of necessity are limited to providing his legal counsel with the information, advice, facts and evidence which will enable his attorneys to steer a course most beneficial to his ultimate good exclusive of any decision to be made by him. To tolerate less than this in the conduct of a trial would be a complete violation of the integrity of the criminal process and as completely flagrant a disregard for the life and liberty of an unfortunate defendant as it would be to place him alone in a jetliner far above the earth, traveling at supersonic speed, provided with an instruction book explaining which lever should be manipulated to conduct his safe flight to his destination. To require an attorney to consult with a defendant who, in many instances will be found ignorant and illiterate, and in most if not all instances wholly uneducated and unknowl-edgeable about the imponderable questions upon which legal judgments must be made in the course of a trial, and to make an implacable and iron clad rule that the decision in these situations must be made by the defendant himself would be as gross a miscarriage of justice as the complete denial of counsel in itself would be. And, to hold that there must be positive evidence of waiver in such cases is equally intolerable. This issue has been settled in this State by the ruling in Arthur v. State, Tenn., 483 S.W.2d 95.

The assignments of error are overruled and the judgment of the trial court affirmed.

MITCHELL, J., concurs.