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State v. Reid7/20/2001
he judge signs the proceedings of the day. Tenn. Code Ann. § 40-13-109 (1997).
After a review of the record, we find Defendant's first allegation concerning the foreman's alleged failure to present Defendant's indictment to the court to be unfounded. On the third page of Exhibit 2, contained in Volume IV of the official "Transcript of the Evidence," a document dated August 18, 1999, and filed August 30, 1999, states the following:
We, the Foreman and members of the said Grand Jury, have hereunder subscribed our names, thereby certifying our actions relative to the above, and we direct the foreman of the Grand Jury to present the above indictments, presentments and "No Bills," to the Judge of this Court in open Court.
The document was signed by the members of the Grand Jury, the foreman, and the Judge--all of the parties required to participate under Tenn. Code Ann. § 40-13-108. Moreover, the "Grand Jury Schedule and Report" of the same date includes Defendant's five count indictment in its listing, which indicates to this Court that it clearly was among those "directed for presentment" in the document above. According to the statute, nothing more is necessary. Even if the record reveals that the clerk omitted to enter upon the court's minutes that the grand jury returned Defendant's indictment into open court, this omission does not constitute reversible error if the indictment shows upon its back that it was found a "true bill," which it does. See Tenn. Code Ann. § 40-19- 101 (1997); see also Glasgow v. State, 68 Tenn. 485 (Tenn. 1876) (failure to spread felony indictment upon the minutes of the court neither enlarges nor dismisses the accused's rights since the object of such procedure is simply to provide against consequences of loss or destruction of original); Brown v. State, 26 Tenn. 155 (Tenn. 1846) (failure to spread indictment upon minutes of the court and to include signature of grand jury foreman are immaterial when original indictment exists).
Defendant also alleges that the indictment was not properly filed or entered by the clerk before the trial commenced as required by Tenn. Code Ann. § 40-13-109. The record reveals that the official minute book of the court did contain a copy of Defendant's indictment. This fact was proven by the testimony of Tisha Huff, the deputy clerk for the Criminal Court for Bradley County, and conceded by defense counsel during his pre-trial argument on this issue. Specifically, defense counsel admitted to the court that "there was [a copy of the indictment] in the file, but it was not stamp-filed entered." Defendant's reliance on a stamp is misplaced, however. There is no such requirement. As stated above, the indictment in this case was "directed for presentment" in a document signed by the grand jury, the foreman, and the judge, after which a copy was placed in the official minute book of the court.
This procedure was sufficient to comply with the statutory requirements for proper processing of an indictment on all points of legal significance. Defendant is not entitled to relief on this issue.
B. Denial of Defendant's Right to Remain Silent
Defendant contends that the trial court erred by refusing Defendant's request for a mistrial after the State violated his constitutional rights by improperly soliciting testimony that Defendant failed to cooperate when a police officer requested a statement from him after his arrest. Defendant further asserts that the impropriety of the prosecutor's action constituted a level of prosecutorial misconduct that may only be cured by a reversal of his conviction.
In response, the State concedes that a defendant has a constitutional right
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