State v. Jefferson

OPINION

DWYER, Judge.

This is an appeal as a matter of right by James Thomas Jefferson from the Davidson County Criminal Court’s denial of his petition for post-conviction relief on his claim of intentional racial discrimination in the method of selection of grand jury foremen in Davidson County. Specifically, petitioner alleges that blacks were systematically excluded from serving as grand jury foremen at the time of his indictment.

The record reveals that in July of 1968, the petitioner was indicted for first-degree murder, rape, and two counts of assault with intent to kill. The petitioner was tried and convicted of murder in the first degree and punishment was fixed at life imprisonment. On appeal, the Court of Criminal Appeals affirmed as to the sufficiency of the evidence issue, but remanded the case to the trial court for a more detailed hearing on the appellant’s pretrial plea in abatement issue attacking the composition of the grand jury. State v. Jefferson, 529 S.W.2d 674, 677 (Tenn.1975).

The trial court, on remand, held there was no intentional racial discrimination or systematic exclusion of blacks in the method of selection of grand jury members. The petitioner appealed and the Court of Criminal Appeals affirmed the decision of the trial court. State v. Jefferson, 559 S.W.2d 649, 651 (Tenn.Crim.App.1977). The Tennessee Supreme Court denied cer-tiorari.

The petitioner then filed a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254, in the United States District Court for the Middle District of Tennessee at Nashville, alleging systematic exclusion of blacks from the grand jury and petit jury which convicted him. For the first time, appellant also alleged a new issue, intentional racial discrimination in the method of selection of grand jury foremen. The State filed a motion to dismiss on failure to exhaust grounds. The District Court overruled the State’s motion to dismiss and thereafter held that the systematic exclusion of blacks from the grand jury violated the appellant’s Fourteenth Amendment equal protection rights and ordered that Jefferson’s indictment be quashed and that he be reindicted or released within ninety days.

The State appealed and the Sixth Circuit for the United States Court of Appeals reversed the trial court on the grounds the appellant had not exhausted his state remedies on the question of whether there was intentional racial discrimination in the method of selecting grand jury foremen in Davidson County. On August 26,1986, the appellant filed a petition for post-conviction relief pursuant to T.C.A. § 40-30-101, et seq., asking that his 1971 first-degree murder conviction and punishment of life imprisonment be set aside. On September 11, 1987, the trial court entered its order, and memorandum in support thereof, denying the appellant’s petition for post-conviction relief.

The petitioner now complains that the trial court ignored the import of Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979) which stands for the proposition that the equal protection clause of the Fourteenth Amendment is violated if the key man system of selecting grand jury foremen is used to systematically exclude blacks. Among other authority, petitioner further relies upon Hobby v. United States, 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984) wherein the United States Supreme Court states that grand jury foremen in Tennessee possess “virtual veto power over the indictment process.” 468 U.S. at 344, 104 S.Ct. at 3098, 82 L.Ed. 2d at 265. It is the State’s position that the role of the grand jury foreperson in Tennessee is ministerial and administrative and that the vote of the grand jury foreperson is but one vote,'co-equal with other grand jurors and does not impact disproportionately upon the defendant relative to other votes by members of the grand jury.

Before the court in the post-conviction evidentiary hearing was the question of whether there was, pursuant to the petitioner’s unexhausted claim, a systematic exclusion of blacks as grand jury forepersons in Davidson County violative of the petitioner’s Fourteenth Amendment equal protection rights. In reaching this decision the trial court, as a threshold consideration, was required to determine whether the question regarding the selection of grand jury forepersons and that concerning the selection of the entire grand jury presented separate and distinct issues.

The trial court found that, in this context, no significant distinction could be drawn between the power of the foreman and the other members of the grand jury, hence the charge of discrimination with respect to the selection of the foreman provided no separate basis upon which to collaterally attack petitioner’s conviction. Instead, the trial court concluded that the issue of the systematic exclusion of blacks in the selection of the foreman is subsumed by the issue of the systematic exclusion of blacks in the selection of the grand jury as a whole.

We are in agreement with the findings of the trial court for the following reasons. First, the State presented unrefuted expert testimony at trial that the role of Tennessee’s grand jury foreman is substantially ministerial and clerical in nature. For the period in question foremen did not have, and do not presently have, “virtual veto power” over the grand jury as a whole. See Hobby v. United States, supra. With due respect to the dicta of the United States Supreme Court in Hobby suggesting otherwise, the proof adduced at trial supports the State’s contention.

In Tennessee, the foreman is the spokesperson for the grand jury and has the same voting power as any other grand jury member. Bolen v. State, 544 S.W.2d 918, 920 (Tenn.Crim.App.1976). Not only does the foreman not have the power to veto an indictment, his authority, within this context, is no greater than any other member of the grand jury venire. State v. Collins, 65 Tenn. 151, 153-54 (1873). See also Applewhite v. State, 597 S.W.2d 328 (Tenn.Crim.App.1979); Bird v. State, 103 Tenn. 343, 52 S.W. 1076 (1899); State v. Chambless, 682 S.W.2d 227 (Tenn.Crim.App.1984). The above holding is bolstered by the observation of this Court in State v. Chambless that the Supreme Court in Hobby “greatly exaggerated” the powers of the Tennessee grand jury foreman.

Secondly, again with all due respect, we agree with the State’s contention that the Supreme Court’s interpretation of the role and power of the grand jury foreperson in Tennessee is the result of a misperception commencing with footnote 2 in Rose v. Mitchell, supra, and carried over without any other citation in Hobby v. United States, supra. Rose involved a federal ha-beas corpus proceeding wherein Tennessee litigants claimed they were victims of racial discrimination, in violation of the equal protection clause of the Fourteenth Amendment, in the selection of the grand jury which indicted them for murder in the first degree. At issue was the question of whether the claim of the grand jury discrimination constituted harmless error when raised by a defendant found guilty beyond a reasonable doubt by a petit jury trial, free of reversible error.

Clearly, the role or power of Tennessee’s grand jury forepersons was not at issue in Rose and no evidence was adduced at trial related thereto. The Supreme Court in Rose did state that for the purposes of that case it could be assumed that the Tennessee method of selecting a grand jury foreperson suggests potential for abuse. 443 U.S. at 566, 89 S.Ct. at 3005. However, nowhere in the majority opinion does the Court in Rose conclude that the Tennessee grand jury foreperson has virtual veto power over the indictment proceedings.

Hobby v. United States, supra, which did not involve Tennessee litigants or matters of Tennessee law, decided the narrow question of whether discrimination in the selection of a federal grand jury forepersons required reversal of a valid conviction of a white male and the dismissal of the indictment against him. 468 U.S. at 340,104 S.Ct. at 3094. Although the Court in Hobby did not address an issue of Tennessee law, it appears to have given rise to a misperception and groundless assumption of the authority of the grand jury foreperson in Tennessee. See 468 U.S. at 346-347, 104 S.Ct. at 3097-3098. With deference to our United States Supreme Court, in Hobby it appears that the Court relied merely upon the aforementioned footnote in Bose, without citation to authority, and surmised that the Tennessee grand jury foreperson had powers greater than those bestowed by statute or exercised de facto.

Thirdly, in Jefferson v. State, 559 S.W.2d 649 (Tenn.Crim.App.1977), this Court considered petitioner’s charge alleging the systematic exclusion of blacks from both the grand and petit juries in Davidson County. Speaking for the Court, Presiding Judge Walker noted that for the period of 1952 through 1971, the grand jury selection process survived constitutional scrutiny from at least three separate courts. Specifically, the Court found as follows:

On the contrary, two permanent members of that jury were black, and a black alternate was available. The percentage of blacks to the total population eligible for jury duty was 15.4, not far from the average for the county. There was no substantial underrepresentation of his group on this grand jury. With the alternate considered, at times during that term 23 percent blacks were available for the grand jury. There is no substantial disparity here which would suggest any discriminatory purpose or that blacks had been systematically excluded from Davidson County grand juries.

Based upon this, the Court concluded that there was no systematic exclusion of blacks on the grand jury which indicted the appellant, nor any abridgment of appellant’s rights under the equal protection clause of the Fourteenth Amendment.

In short, we find that the issue of discrimination in the selection of Tennessee’s grand jury foremen is inherent in the question considered previously by this Court in Jefferson v. State, supra. The issues raised in the instant petition, therefore, have been previously determined. T.C.A. § 40-30-112(a).

Accordingly, the judgment of the trial court is affirmed.

BIRCH, J., concurs. WADE, J., dissents.